People v. Tate CA2/3

Filed 3/26/14 P. v. Tate CA2/3 Received for posting 5/8/14 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B249195

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA147660) v.

CLARENCE TATE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry and William C. Ryan, Judges. Affirmed in part, reversed in part and remanded with directions. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Clarence Tate appeals from a post-judgment order of May 14, 2013 which corrected an error in the calculation of his custody credits, including credit for actual custody and conduct credit. We vacate the trial court’s calculation of defendant’s conduct credit, recalculate the conduct credit, remand with directions, and, in all other respects affirm the order. Following his arrest on March 22, 1997 and conviction for torture, felony child abuse with a great bodily injury finding, and felony child abuse (Pen. Code, §§ 206, 273a, subd. (a), 12022.7),1 defendant was sentenced on October 23, 1997 to state prison for life and awarded custody credits. The Court of Appeal remanded the matter, finding error in the sentencing hearing. On September 10, 1999, defendant was sentenced to a life term in state prison with the possibility of parole as to the conviction for torture, nine years as to the conviction for felony child abuse with a great bodily injury finding, stayed, and 16 months as to the conviction for felony child abuse, stayed; and he was awarded 902 days of actual custody credit and 135 days of conduct credit, covering the period of his incarceration from arrest to resentencing.2 On April 4, 2013, defendant made a motion in the trial court to correct the custody credit from 902 to 903 days of actual custody and 135 to 136 days of conduct credit. The trial court agreed with defendant and, on May 14, 2013, issued a nunc pro tunc order setting defendant’s actual custody credit at 903 days and his conduct credit at 135 days. Defendant appealed from the order of May 14, 2013. He contends the conduct credits he earned after October 23, 1997, the date he was originally sentenced, must be calculated by the Department of Corrections and