Filed 6/16/15 P. v. Martinez CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050209

                  v.                                                   (Super. Ct. No. 13WF3134)

LOUIS ANGEL MARTINEZ,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed as modified.
                   Richard Power, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              This is one of two companion cases in which defendant Louis Angel
Martinez pleaded guilty to different offenses. The matters were joined for sentencing and
the trial court sentenced him for both cases on the same date. As with the companion
case, Orange County Superior Court, case no. 13NF1843 (G050207), defendant contends
the abstract of judgment reflects the incorrect number of total custody credits. The
Attorney General agrees, as do we, that the abstract of judgment should be modified. “A
sentence that fails to award legally mandated custody credit is unauthorized and may be
corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647; see
People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an
adequate amount of credits is a jurisdictional error which may be raised at any time”].)
              In this case, defendant pleaded guilty to second degree robbery (count 1)
and street terrorism (count 2). He thereafter admitted he committed count 1 for the
benefit of a street gang and personally used a knife. He also admitted allegations of a
prior “strike” conviction, a prior serious felony conviction, and two prior prison term
convictions. The court found true the enhancements and prior conviction allegations. It
sentenced defendant to two years on count 1, five years for the prior serious felony
allegation, and one year for the knife use for a total of eight years. It struck the prior
“strike” conviction and the prior prison term convictions for purposes of sentencing, and
stayed the prison sentence on count 2 and the gang enhancement. The court awarded
defendant 395 days credit (359 actual, 36 conduct). The total term imposed for this case
(8 years) and the companion case (1 year) is 9 years.
              As of the date originally set for sentencing, February 28, 2014, defendant
had spent 359 days in custody. The trial court ordered an additional 36 days of credit for
period from March 1, 2014 to the continued date set for sentencing, April 4, 2014. But
defendant acknowledges the correct number of credits for that period is 35 days (31 days
in March and 4 days in April) for a total of 394 actual days. To that, as the parties point



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out, an extra 15 percent conduct credit of 59 days should be added. (Pen. Code, §
2933.1.)
              The trial court is directed to prepare an amended abstract of judgment,
indicating, as to case “A” as designated in the abstract of judgment (Orange County
Superior case No. 13WF3134), 394 days of as actual credit and 59 days of conduct credit.
Adding the one day of custody credit awarded in case “B” as designated in the abstract of
judgment (Orange County Superior Court case No. 13NF1843), the amended abstract of
judgment shall reflect a combined total of 395 days of custody credit. As amended, the
abstract of judgment shall be forwarded to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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