People v. Ojeda CA2/7

Filed 9/12/16 P. v. Ojeda CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B266149

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA096499) v.

GABRIEL ANDREW OJEDA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack P. Hunt, Judge. Affirmed. John Doyle, under appointment by the Court of Appeal, for Defendant and Respondent. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent. __________________________

Gabriel Andrew Ojeda appeals the one-year state prison sentence imposed after he pleaded no contest to assault by means likely to produce great bodily injury. Ojeda contends the court erred in failing to give him credit for the time he was in custody while the case was on remand from a prior appeal. We affirm. 1 PROCEDURAL BACKGROUND After he was convicted of aggravated assault and simple assault in October 2012, Ojeda moved for a new trial based on juror misconduct. The trial court denied the motion. We vacated the trial court’s order and remanded the matter for a new trial. (People v. Ojeda (Sept. 16, 2014, B246956) [nonpub. opn.].) Our remittitur issued on November 17, 2014. After the matter was remanded, Ojeda pleaded no contest to assault by means 2 likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). On February 10, 2015 the court sentenced Ojeda to state prison for one year (one-third the middle term) to run consecutive to a four-year sentence imposed in February 2013 in an unrelated burglary case (KA095637-02). The court did not award Ojeda presentence custody credit for the time between the reversal of his conviction by this court and his sentencing after the no contest plea, explaining, “The defendant is a sentenced prisoner.” DISCUSSION Presentence custody credit is generally authorized by section 2900.5, subdivision (a), which provides, “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, . . . shall be credited upon his or her term of imprisonment . . . .” Section 2900.5, subdivision (b), however, limits the circumstances