Filed 10/9/14 P. v. Robey CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSHUA ALLEN ROBEY, 

 Defendant and Appellant. 

 G049074 

 (Super. Ct. No. 11NF3109) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, James 

Edward Rogan, Judge. Dismissed. 

 Richard de la Sota, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and 

Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 Defendant was convicted of the torture and attempted murder of an infant. 

At his sentencing hearing, the court ordered that he receive actual custody credits, but 

made no mention of conduct credits. Defendant appeals, contending the court erred in 

failing to award conduct credits. The Attorney General asserts this appeal must be 

dismissed for defendant’s failure to file a Penal Code section 1237.1 motion in the trial 

court.1 The Attorney General is correct. The appeal is dismissed, without prejudice to 

defendant’s filing of a section 1237.1 motion in the trial court. 

I 

FACTS 

 At the sentencing hearing, the court stated that it had read and considered 

the probation report. It sentenced defendant to life in prison on count 1, attempted 

murder (§§ 187, subd. (a), 664, subd. (a)), and life in prison on count 2, torture (§ 206), 

with the sentence on count 2 stayed pursuant to section 654. It also sentenced defendant 

to six years on count 3, child abuse (§ 273a, subd. (a)), with the sentence stayed. In 

addition, the court sentenced defendant to six years with respect to the section 12022.7, 

subdivision (d) enhancement pertaining to count 1, to run consecutively to the life 

sentence. 

 The court ordered a custody credit of 710 actual days and confirmed with 

defendant’s counsel that 710 actual days was the correct number of days for the custody 

credit. Neither the court nor counsel for either party addressed the matter of conduct 

credits at the hearing. 

 

1 All subsequent statutory references are to the Penal Code, unless otherwise 

specifically stated. 
3

II 

DISCUSSION 

A. Conduct Credits: 

 Defendant, as we have noted, contends the court erred in failing to award 

conduct credits. The Attorney General, citing sections 1237 and 1237.1, argues that the 

appeal should be dismissed, because defendant failed to file a motion in the trial court.

 Section 1237, subdivision (a) provides in pertinent part that a defendant 

may take an appeal “[f]rom a final judgment of conviction except as provided in Section 

1237.1 and Section 1237.5.” Section 1237.1, in turn, 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.” 

 In interpreting section 1237.1, the court in People v. Acosta (1996) 48 

Cal.App.4th 411, stated that, generally speaking, “the filing of a motion in the trial court 

is a prerequisite to raising a presentence credit issue on appeal.” (Id. at p. 428, fn. 

omitted.) The Acosta court further stated: “‘The court’s power to correct its judgment 

includes corrections required not only by errors of fact (as in the mathematical 

calculation) but also by errors of law. [Citation.]’” (Id. at p. 424.) 

 Defendant maintains the motion requirement of section 1237.1 applies only 

if the trial court made a mathematical error, not if it failed to award any conduct credits at 

all. He cites People v. Delgado (2012) 210 Cal.App.4th 761 and People v. Verba (2012) 

210 Cal.App.4th 991 in support of his argument. These authorities are unpersuasive in 

our context. 
4

People v. Delgado, supra, 210 Cal.App.4th 761 held that, section 1237.1 

notwithstanding, the filing of a motion in the trial court is not a prerequisite to the filing 

of an appeal based on a claim defendant’s “presentence custody credits were calculated 

pursuant to the wrong version of the applicable statute.” (People v. Delgado, supra, 210 

Cal.App.4th at p. 763.) It explained: “In our view, an error in ‘doing the math’, or . . . an 

apparent oversight in an award of credits, constitutes the type of minor sentencing error at 

which section 1237.1 was clearly aimed. A determination of which version of a statute 

applies—especially when, as here, that determination involves application of 

constitutional principles—does not.” (Id. at p. 766.) People v. Verba, supra, 210 

Cal.App.4th 991 is to similar effect, providing that section 1237.1 does not bar an appeal 

based on a constitutional challenge to the determination of presentence conduct credits. 

(People v. Verba, supra, 210 Cal.App.4th at pp. 993-995.)

 In the matter before us, however, we are concerned with what would appear 

to be best described as an oversight—either the failure to consider an award of conduct 

credits, or the failure to articulate the reason no conduct credits were being awarded. We 

are not concerned with either the question of which version of a statute applies or the 

application of constitutional principles. Consequently, the Attorney General is correct 

that the appeal must be dismissed and defendant’s remedy is to address his concerns to 

the trial court. 

 Defendant disagrees, attempting to characterize the trial court’s failure to 

award conduct credits as arising out of the misinterpretation of a statute. Defendant says 

the trial court “most likely” believed, incorrectly, that section 30462 prevented an award 

of presentence conduct credits because he had been sentenced to an indeterminate life 

sentence. 

 

2 Section 3046, subdivision (a) states that before a prisoner sentenced to life 

may be paroled, he must serve a minimum number of years as specified therein. 
5

 The Attorney General has a more plausible theory. She suggests the court 

determined not to award defendant any conduct credits because the probation report 

described him as a “habitual jail-rule violator.” Consequently, no award of conduct 

credits was required under section 4019, subdivisions (b) and (c).3

 In any event, as the Attorney General further argues, the lack of any 

discussion of conduct credits in the trial court, and the resulting absence of any developed 

record for review, “only underscores the importance of raising the issue in the trial 

court.” We agree. 

B. Abstract of Judgment: 

 As an aside, defendant mentions, albeit without compliance with California 

Rules of Court, rules 8.360(a) and 8.204(a)(1)(B), that the abstract of judgment fails to 

reflect either the sentence on count 3, child abuse, or the custody credit of 710 actual 

days. He suggests that the abstract of judgment be corrected accordingly. 

 The Attorney General observes in a footnote that the original clerk’s 

transcript contains a copy of the abstract of judgment—prison commitment—

indeterminate (Judicial Council form CR-292), but omits a copy of the felony abstract of 

judgment—determinate (Judicial Council form CR-290). By order of this court dated 

September 26, 2014, the record on appeal was corrected to contain a copy of the felony 

abstract of judgment—determinate (Judicial Council form CR-290). (Cal. Rules of 

Court, rule 8.340.) The felony abstract of judgment—determinate shows the sentence on 

count 3 and the 710-day credit. No correction of the abstract is necessary. 

 

3 Under section 4019, subdivision (b), a prisoner described therein is entitled 

to certain conduct credits “unless it appears by the record that the prisoner has refused to 

satisfactorily perform labor as assigned . . . .” Subdivision (c) of that statute provides that 

a prisoner described therein is entitled to certain conduct credits “unless it appears by the 

record that the prisoner has not satisfactorily complied with the reasonable rules and 

regulations established by the sheriff, chief of police, or superintendent . . . .” 
6

III 

DISPOSITION 

 The appeal is dismissed, without prejudice to defendant’s filing of a section 

1237.1 motion in the trial court. 

 

 MOORE, ACTING P. J. 

WE CONCUR: 

FYBEL, J. 

THOMPSON, J.