Filed 10/3/13 P v. Livingston 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C072740

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F01267)

         v.

ARNOLD ROSHAWN LIVINGSTON,

                   Defendant and Appellant.




         This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
         On October 19, 2010, defendant Arnold Roshawn Livingston was detained outside
a department store by an off-duty Department of Corrections officer after defendant
grabbed, choked and forced his girlfriend to leave the store. Defendant threatened to
retrieve a knife from his pocket and stab the off-duty officer. In 1992, defendant was
convicted of second degree robbery.
         After the court found defendant incompetent to stand trial, defendant was placed at
Napa State Hospital until competency could be restored. A month later, Napa certified
defendant as competent and he returned to county jail. After the trial court found

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defendant competent to stand trial, defendant entered a negotiated plea of no contest to
attempted criminal threats (Pen. Code, §§ 664/422; undesignated section references are to
this code) and admitted a strike prior (§ 667, subds. (b)-(i)) in exchange for a stipulated
16-month term and dismissal of the remaining counts (false imprisonment with violence
and misdemeanor battery). The court imposed the 16-month term (the low term of eight
months, doubled for the strike prior), and released defendant as time served with 547
days of actual custody credit. The credits exceeded the sentence and were applied to the
payment of the fees and fines.
       Defendant appeals. His request for a certificate of probable cause (§ 1237.5) was
denied. Defendant’s subsequent notice of appeal seeks review on matters not affecting
the plea.
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.
       We note an error in the calculation of the excess credit towards the payment of
fees and fines. The prosecutor stated that defendant’s 16-month sentence equaled 485
days, 80 percent of which totaled 388 days, but because defendant had 547 actual days of
custody, defendant was time served and the excess days would be applied to the fines and
fees (restitution fine and main jail booking and classification fees). The trial court stated
that defendant was entitled to 547 actual days and 109 days of conduct credits “pursuant
to the Penal Code section that governs serious felonies as far as credits that can be
earned.” (Italics added.) The minute order and the abstract of judgment reflect 547
actual days and 109 conduct days for a total of 656 days of presentence custody credit.
The abstract cites section 2933.1 for conduct credits. Attempted criminal threats is not a

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“violent” felony; instead, attempted criminal threats is a “serious” felony (§ 1192.7, subd.
(c)(38), (39)) so the 15 percent rule of section 2933.1 does not apply. Plus 15 percent of
547 is 82. But 20 percent of 547 is 109. In view of the court’s statement that it awarded
109 days of conduct credits based on what defendant could have earned (presumably
meaning while in prison), it appears the court erroneously awarded “post sentence”
conduct credit rather than “presentence” conduct credit. The record does not include a
probation report to reflect the dates of defendant’s custody. Without an adequate record
reflecting when defendant was in custody, we are unable to determine the number of
“presentence” conduct credits he should have received towards his fees/fines. (§ 2900.5,
subd. (a); see People v. Robinson (2012) 209 Cal.App.4th 401, 406-407; People v.
McGarry (2002) 96 Cal.App.4th 644, 646-647.) It is the trial court’s duty to determine
defendant’s actual dates of custody and the total number of days to be credited.
(§ 2900.5, subd. (d).)
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.

                                       DISPOSITION
       The matter is remanded to the trial court for recalculation of defendant’s custody
credits. The judgment is otherwise affirmed.


                                                        HULL                  , J.
We concur:



      RAYE                  , P. J.



      BLEASE                , J.



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