People v. Robinson

Opinion

SPARKS, Acting P. J.

The issue presented by this appeal is whether the trial court erred by failing to award defendant credit for the number of days he spent in custody following his original sentencing, up to the time of his resentencing. The Attorney General concedes the error. Although we agree the court erred, and that defendant is entitled to additional credit, we believe the appropriate means of remedying an error of this nature is to first move for correction in the trial court. Accordingly, we shall dismiss the appeal.

A jury convicted defendant of attempted murder (Pen. Code, §§ 187, 664)

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and four counts of assault with a firearm (§ 245, subd. (a)(2), in the commission of each of which it found he personally used a firearm (§ 12022.5, subd. (a)). Moreover, the jury found that, in the commission of the attempted murder and two of the assaults, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). He also was convicted of possession of a deadly weapon (§ 12020, subd. (a)).

Defendant was sentenced to state prison for 12 years and also received a consecutive indeterminate term of life imprisonment with the possibility of parole. He was awarded 157 days of presentence credit. Following an appeal by defendant and a remand of the case for resentencing

(People

v.

Robinson

(Jan. 29, 1993) C012444 [nonpub. opn.]), defendant was resentenced to a term of nine years and received a consecutive indeterminate sentence of life with the possibility of parole. The court again awarded defendant 157 days of presentence credit; defendant received no credit for any additional time spent in custody.

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As defendant points out, when resentencing a defendant, the sentencing court is required to calculate and credit the defendant with the number of

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days spent in prison custody. On the other hand, calculation of credit for good behavior and for work time is the province of the prison administration. (§§ 2900.5, 4019;