1

Filed 8/31/16 P. v. Kilgore CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CASEY ALEXANDER KILGORE,

Defendant and Appellant. A146251

(Solano County Super. Ct. No. FCR310086)

D efendant Casey Alexander Kilgore was convicted of a theft offense and, 15

months later, was convicted of assault . Following Kilgore ’s second conviction, the trial

court imposed an aggregate sentenc e for the two offenses pursuant to Penal Code section

1170.1 , subdivision (a)

. 1 Kilgore ’s sole contention on appeal is that the trial court

misunderstood the consequences of the sentence it imposed , and he asks this court to

remand the matter for resenten cing. The appeal relies on an audit of his earliest possible

parole date (EPD) prepared by the California Department of Corrections and

Rehabilitation (CDCR)

, which Kilgore admits he has not received and which is not even

part of the rec ord on appeal. Be cause we do not consider matters outside the record and

Kilgore has not otherwise established reversible error, we affirm.

BACKGROUND

In 2014, Kilgore was convicted of felony grand theft involving a motor vehicle

with a prior c onviction in violation of section 666.5. He was sentenced to a term of four

1 Further statutory references are to the Penal Code.2

years to be served in county jail. While serving his sentence, Kilgore assaulted a fellow

inmate at the Solano County Detention Facility. In 2015, a jury found him guilty of

assault by means likely to pr oduce great bodily injury (§ 245, subd. (a)(4)) and found that

he inflicted great bodily injury on the victim (§ 12022.7, subd. (a)).

The trial court imposed an aggregate sentence of 11 years based on (1) a principal

te rm for the assault conviction of n i ne years, consisting of the mid term of three years for

the offense, plus three years for inflicting great bodily injury, plus three one

- year

enhancements for prior prison terms, and (2) a subordinate term for the conviction of

grand theft with a prior of two years, consisting of one year for th e offense (one

- third of

the mid term), plus one year for a prior prison term. The trial court awarded Kilgore 1152

days of presentence custody credit s , based on 576 days of actual time served and another

576 days of conduct credit s , pursuant to section 4019

. 2

DISCUSSION

The premise of Kilgore ’s appeal is that at some point in the future the CDCR will

not follow the trial court’s award of presentence custody credit s

. Specifically , he

believes the CDCR will not grant him 576 days of conduct credit s (as provided in the

abstract of judgment) , but instead will credit him only 86 days

, based on a calculation of

15 percent of his actual time served under section 2933.1. 3 Kilgore implicitly accepts the

CDCR’s calculation, and he asks us to remand the matter for resentencing

. It seems his

theory is that the trial court intended to impose a sentence that would require Kilgore to

serve a certain amount of time in state prison

, but the sentence imposed will result in

2 Section 4019 generally provides a prisoner may earn one day of conduct credit for each day spent in actual custody. (§ 4019, subd. (f).) “Conduct credit” refers collectively to worktime credit and g ood behavior credit. ( People v. Dieck (2009) 46 Cal.4th 934, 939.)

3 Section 2933.1, subdivision (c), provides, “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or co mmitment to, a county jail

. . . , following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person” convicted of a felony offense listed in subdivision (c ) of section 667.5 (listing “violent felony” offenses).3

Kilgore s erving a longer time because the court erred in applying section 4019 to

determine his presentence custody credit.

As an initial matter , we reject the Attorney General ’s argument that the appeal

should be dismissed because Kilgore did not file a motion in the trial court to correct the

calculation of presentence custody credits pursuant to section 1237.1. 4 This statute bars a

claim of error regarding custody credits that was not raised in the trial court when the

asserted error is merely arithmetic or clerical; it does not apply to a claim that the trial

court applied the wrong statute in determining the presentence custody credits. ( People

v. Delgado (2012) 210 Cal.App.4th 761, 765

– 766.) Since Kilgore ’s appeal is not an

attempt to correct an arithmetic or clerical error, dismissal of the appeal is not warranted

. Nonetheless, Kilgore ’s appeal fails

. In the opening brief, his c ounsel explains,

“this brief is based upon the EPD co mmunicated from [ Kilg ore ].” But t his information

, assertedly conveyed from Kilgore to his counsel

, is not in the appellate record. Kilgore’s

c ounsel recognizes the appeal “involves matters both within and out side the record

, ” and

she asserts she “is awaiting the result s of a n audit of the .

. . [EPD] from the CD C R .” 5

We cannot accept counsel’s representation that the CDCR is not going to follow

the trial court’s award of presentence conduct credit. “M atters not presented by the

record cannot be considered on the suggestion of counsel in the briefs.” ( People v.

Gardner (1969) 71 Cal.2d 843, 849; see People v. St. Martin (1970) 1 Cal.3d 524, 537

– 538 [“ordinarily matters not presented to the trial court and hence not a proper part of the

record on appeal will not be considere d on appeal”]; Cal. Rules of Court, rule

8.204(a)(2)(C) [appellant’s opening brief must “[p]rovide a summary of significant facts

4 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 f irst 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.”

5 In Kilgore’s opening brief on appeal, filed April 18, 2016, c ounsel also states

that Kilgore “ expects to file a writ of habeas corpus soon after the filing of this brief, containing that information,” presumably referring to the CDCR calculation of Kilgore’s EPD. As of August 31 , 2016

, no wri t has been filed.4

limited to matters in the record”].) Kilgore does not raise any other claim of error, and he

apparently would have no complai nt if he is credited 1152 days total custody credit as

provided in the abstract of judgment. 6

“ ‘ Perhaps the most fundamental rule of appellate law is that the judgment

challenged on appeal is presumed c orrect, and it is the appellant’ s burden to a ffirm atively

demonstrate error.’ [Citation.] ‘ “ We must indulge in every presumption to uphold a

judgment, and it is [the appellant’s] burden on appeal to affirmatively demonstrate

error

— it will not be presumed. [Citation.]” [Citations.]’ ” ( People v. Sull ivan (2007)

151 Cal.App.4th 524, 549 .) Kilgore has not met his burden in this case. Accordingly, we

affirm the judgment. 7

DISPOSITION

The judgment is affirmed.

6 The Attorney General takes the position that the trial court properly calculated Kilgore’s presentence custody credits as 1152 days. Thus, she implicitly agrees with the trial court that section 4019 (rather than section 2933.1) appli es in the determination of Kilgore’s custody credits. In his reply brief, Kilgore does not dispute the Attorney General’s position.

7 We express no opinion on the merits of a petition for writ of habeas corpus on the issue Kilgore attempts to raise in this appeal.5 _________________________ Miller, J.

We concur:

_________________________ Kline, P.J.

_________________________ Richman, J.

A146251, People v. Kilgore