People v. Gisbert

Opinion

FYBEL, J. Introduction

The trial court awarded defendant Rene Gisbert 88 days of presentence custody credits after defendant pled guilty to second degree vehicle burglary. The court later granted the prosecution’s motion to vacate the credits, and defendant appeals from that postjudgment order.

The trial court had jurisdiction to entertain the prosecution’s motion because an unauthorized sentence may be corrected at any time. Defendant was not entitled to any presentence custody credits because he would not have been free of custody but for his incarceration while awaiting trial on the second degree vehicle burglary charge, as he was already committed to state prison in connection with an earlier burglary conviction. The award of presentence custody credits where credits were impermissible made the first sentence unauthorized. We therefore affirm the postjudgment order.

Statement of Facts and Procedural History

On September 9, 2010, defendant pled guilty to a felony count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), and was sentenced to two years in state prison. (All further statutory references are to the Penal Code.)

[280]On December 1, 2010, the Orange County District Attorney filed a new felony complaint against defendant, charging him with a separate felony count of second degree vehicle burglary. The date of the alleged crime in the second case was June 10, 2010. On March 4, 2011, defendant’s notice and demand for trial, pursuant to section 1381,1 was forwarded to the district attorney’s office from the court.

Defendant appeared for arraignment in the second case on April 19, 2011, at which time he pled guilty. Defendant was sentenced on the same day; at that time, the trial court stated it did not believe defendant was entitled to any presentence custody credits, a position with which the prosecutor agreed. Defendant’s counsel argued that defendant should receive 44 days of actual custody credits, plus 44 days of good conduct credits, representing the time between the notice and demand for trial and defendant’s sentencing. The court sentenced defendant to 16 months in state prison, to be served concurrently with the two-year sentence on the first case, and awarded him a total of 88 days of presentence custody credits, over the prosecutor’s objection.