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Filed 3/29/13 P. v. Her CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

NOU CHONG HER,

Defendant and Appellant.

C069676

(Super. Ct. No. 07F03705)

Defendant Nou Chong Her pleaded no contest to felony evading a police officer 

(Veh. Code, § 2800.2, subd. (a)), receipt of a stolen vehicle (Pen. Code, § 496d, subd. 

(a)),1 and felony resisting an executive officer (§ 69). The trial court imposed a 

stipulated term of 16 months in state prison and awarded 527 days of presentence custody 

credits. 

 

1 Subsequent undesignated statutory references are to the Penal Code. 
2

On appeal, defendant contends the trial court should have awarded him 526 days 

of presentence conduct credits. We dismiss the appeal for failing to raise a cognizable 

issue.

DISCUSSION

We dispense with the facts of defendant’s crimes as they are unnecessary to 

resolve this appeal.

At sentencing, the trial court stated: “So, the defendant has 527 days actual. 

There’s additional credits as well. Certainly then, it’s going to be deemed time served, so 

to speak, in terms of the 16 months state prison sentence in the matter since it would be 

50 percent, so, eight months.” Neither the trial court nor the parties mentioned conduct 

credits. The minutes and abstract of judgment show defendant receiving presentence 

credit for 527 days’ actual and 0 days’ conduct. 

Defendant claims he is entitled to conduct credits without regard to whether he 

will serve any time in prison, and notes that excess presentence credits can be used to 

offset any fines (§ 2900.5, subd. (a)) and could be applied to his parole period.2 

Section 1237.1 states: “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.” This section precludes an 

appeal where, as here, the only issue raised concerns the calculation of presentence 

custody credits and the defendant did not previously raise the issue in a motion to the trial 

court. (People v. Clavel (2002) 103 Cal.App.4th 516, 518-519.) 

 

2 The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), stayed a 

parole revocation fine of like amount (§1202.45), $120 in court security fees (§1465.8) 

and a $30 criminal conviction fee for each count (Gov. Code, § 70373, subd. (a)(1)). 
3

Defendant has not presented this claim to the trial court. He claims he is relieved 

of this duty under the holding of People v. Delgado (2012) 210 Cal.App.4th 761. 

In Delgado, the Court of Appeal held that 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.” 

(Delgado, supra, 210 Cal.App.4th at p. 763.) In so holding, the Court of Appeal 

distinguished the claim before it, which involved the “substantive interpretation of the 

custody credit statutes,” from claims properly dismissed pursuant to section 1237.1, those 

involving “a mere mathematical error or oversight” that “is easily corrected and much 

less likely to engender a serious disagreement between the parties that must be resolved 

by an appellate court.” (Id. at p. 767.)

The trial court’s apparent failure to award conduct credits3is the type of 

inadvertent error to which section 1237.1 applies. Since defendant has inexplicably 

failed to inform the trial court of its oversight and request a correction, his appeal must be 

dismissed.

DISPOSITION

The appeal is dismissed.

 NICHOLSON , J.

We concur:

 BLEASE , Acting P. J.

 BUTZ , J.

 

3

If it in fact failed to award conduct credits, since the trial court’s phrase, “There’s 

additional credits as well,” may have referred to conduct credits.