People v. Delgado

Opinion

DETJEN, J. In the published portion of this opinion, we hold Penal Code section 1237.1 does not preclude a defendant from raising, as the sole issue on an appeal, a claim his or her presentence custody credits were calculated pursuant to the wrong version of the applicable statute.

PROCEDURAL HISTORY

On July 8, 2010, an information was filed in Kern County Superior Court, charging defendant Fernando Delgado with various offenses arising out of a domestic violence incident that occurred between February 28 and March 1, 2010.1 On November 4, 2010, defendant entered into a plea agreement pursuant to which he pleaded no contest to willfully inflicting corporal injury resulting in a traumatic condition on a former spouse (Pen. Code,2 § 273.5, subd. (a); count 2), making criminal threats (§ 422; count 3), and false imprisonment (§ 236; count 4), and agreed to imposition of a term of five years four months in prison. In return, the remaining count and enhancement allegations were dismissed upon the People’s motion.

After failing to appear on the date originally set for sentencing, defendant was sentenced, on July 22, 2011, to a total term of five years four months in prison. He was ordered to pay restitution and various fees, fines, and assessments. He was awarded 201 days of actual credit, plus 100 days of conduct credit, for a total of 301 days. The court found he was not eligible for half-time credits pursuant to section 2933, former subdivision (e)(3).

[764]Defendant now says he is entitled, pursuant to the equal protection clauses of the federal and state Constitutions, to additional custody credits under the amendment to section 4019 that became operative on October 1, 2011. The Attorney General argues the appeal should be dismissed pursuant to section 1237.1. We reject both arguments.

DISCUSSION

I

SECTION 1237.1 DOES NOT REQUIRE DISMISSAL OF THE APPEAL.

“There is no constitutional right of appeal from a judgment or order in criminal cases; rather the right of appeal is statutory. [Citations.]” (People v. Connor (2004) 115 Cal.App.4th 669, 677 [9 Cal.Rptr.3d 521].) Section 1237, subdivision (a) permits a defendant to appeal “[f]rom a final judgment of conviction except as provided in Section 1237.1 . . . .” Section 1237.1 provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” The statute “does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal when other issues are litigated on appeal”; if there are no other issues, however, “the filing of a motion in the trial court is a prerequisite to raising a presentence credit issue on appeal.” (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 [55 Cal.Rptr.2d 675], fn. omitted (Acosta).)