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Filed 2/25/16 P. v. Green CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CARNELL GREEN

Defendant and Appellant. A144932

(S.F. City & County,

Case No. 14023930 )

Defendant Carnell Green appeals from a judgment entered upon a jury verdict

finding him guilty of one count of felony unlawful driving or taking of a motor vehicle

(Veh. Code, § 10851) and one count o f misdemeanor receiving or buying stolen property

(Pen. Code, 1 § 496, subd. (a))

. 2 Defendant contends he is entitled to three additional days

of presentence credit. We agree and order the judgment modified to r eflect that

defendant will receive three add itional days of presentence credit for a total of 316 days

.

I. FACTUAL BACKGROUND

The evidence showed that on the afternoon of Septembe r 7, 2014, Rita Lazo

parked a four

- door rental truck on Minna Street in San Francisco

. She left her keys in the

ig nition and proceeded to arrange some groceries in the back seat . Defendant approached

and asked Lazo whether she could give him a ride. Lazo refused. Defendant then walked

1 All further statutory references will be to the Penal Code.

2 In a bifurcated proceeding, the trial court also found true the allegation that

defendant served a prior prison term. (§§ 666.5, 667.5, subd. (6).)2

toward the truck and went into the driver’s seat. After a brief struggle with La zo,

defendant drove away.

At approximately 9:45 p.m., the police found the truck and arrested defendant.

They also recovered Lazo’s purse and cell phone , which had been left in the truck

.

II. DISCUSSION

Defendant contends the trial court erred in ca lculating his presentence custody

credit and that he is entitled to three additional days of credit. The Attorney General

concedes the error.

A defendant may appeal a judgment of conviction on the ground of an error in the

calculatio n of presentence custody credit only if he or she presents the claim at the time

of sentencing or, if the error is discovered after sentencing, informs the trial court of the

error in writing

. ( § 1237.1.) On review, a n appellate court may correct a presentence

custody error as an unauthorized sentence. ( People v. Acosta (1996) 48 Cal.App.4th 411,

419

– 420 [presentence custody credit issue involves a legally unauthorized sentence];

Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818 [unauthorized sentence is

subject to judicial correction when discovered]. )

A defendant who was in custody prior to his misdemeanor or felony conviction is

entitled to credit for “all days of custody .

. . upon his or her term of imprisonment.”

(§ 2900.5, subd. (a).) He or she is also entitled to receive four days of custody credit for

every two days spent in actual custody , including the day of arrest and the day of

sentencing . (§ 4019, subds. (a)(1), (f); People v. Bravo (1990) 219 Cal.App.3d 729 , 735 .)

Here, defendant preserved his right to c hallenge his presentence credit by

object ing to the trial court’s calculation at his sentencing

, arguing he had been in custody

for 158 days

. Relying on the probation department’s assertion that defendant was in

custody for 157 days , the co urt gave defendant 313 days of presentence credit . The

record refutes the court’s calculation. It is undisputed that d efendant was taken into

custody on the date of the incident, September 7, 2014, and sentenced on February 11,3

2015. D efendant thus serv ed 158 actual days in custody and was entitled to a total of 316

days

— not 313 days

— of presentence custody credit in accordance with section 4019,

subdivision (f)

. D efendant is therefore entitled to three additional days of credit.

III. DISPOSITION

The judgment is modified to reflect defendant will receive 158 days of actual

custody credit and 158 days of credit pursuant to section 4019, subdivision (f), for a total

of 316 days of presentence credit. The trial court is directed to amend the abstract of

judgment accordingly and to forward a copy to the Department of Corrections and

Rehabilitation. In all other respects, the judgment is affirmed.4 _________________________ Rivera, J.

We concur:

_________________________ Ruvol o, P.J.

_________________________ Reardon, J.