People v. Kilgore CA1/2

Filed 8/31/16 P. v. Kilgore CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A146251 v. CASEY ALEXANDER KILGORE, (Solano County Super. Ct. No. FCR310086) Defendant and Appellant.

Defendant Casey Alexander Kilgore was convicted of a theft offense and, 15 months later, was convicted of assault. Following Kilgore’s second conviction, the trial court imposed an aggregate sentence for the two offenses pursuant to Penal Code section 1170.1, subdivision (a).1 Kilgore’s sole contention on appeal is that the trial court misunderstood the consequences of the sentence it imposed, and he asks this court to remand the matter for resentencing. The appeal relies on an audit of his earliest possible parole date (EPD) prepared by the California Department of Corrections and Rehabilitation (CDCR), which Kilgore admits he has not received and which is not even part of the record on appeal. Because we do not consider matters outside the record and Kilgore has not otherwise established reversible error, we affirm. BACKGROUND In 2014, Kilgore was convicted of felony grand theft involving a motor vehicle with a prior conviction in violation of section 666.5. He was sentenced to a term of four

1 Further statutory references are to the Penal Code.

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years to be served in county jail. While serving his sentence, Kilgore assaulted a fellow inmate at the Solano County Detention Facility. In 2015, a jury found him guilty of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) and found that he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The trial court imposed an aggregate sentence of 11 years based on (1) a principal term for the assault conviction of nine years, consisting of the midterm of three years for the offense, plus three years for inflicting great bodily injury, plus three one-year enhancements for prior prison terms, and (2) a subordinate term for the conviction of grand theft with a prior of two years, consisting of one year for the offense (one-third of the midterm), plus one year for a prior prison term. The trial court awarded Kilgore 1152 days of presentence custody credits, based on 576 days of actual time served and another 576 days of conduct credits, pursuant to section 4019.2 DISCUSSION The premise of Kilgore’s appeal is that at some point in the future the CDCR will not follow the trial court’s award of presentence custody credits. Specifically, he believes the CDCR will not grant him 576 days of conduct credits (as provided in the abstract of judgment), but instead will credit him only 86 days, based on a calculation of 15 percent of his actual time served under section 2933.1.3 Kilgore implicitly accepts the CDCR’s calculation, and he asks us to remand the matter for resentencing. It seems his theory is that the trial court intended to impose a sentence that would require Kilgore to serve a certain amount of time in state prison, but the sentence imposed will result in