Filed 8/19/20 P. v. Sanchez CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX

THE PEOPLE,                                                                 2d Crim. No. B295830
                                                                          (Super. Ct. No. YA090758)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

DANIEL SANCHEZ,

     Defendant and Appellant.


      Daniel Sanchez appeals an order denying his petition for
presentence custody credits. We dismiss the appeal. (Pen. Code,
§ 1237.1.)1
      This appeal concerns a single issue – whether Sanchez
received the correct number of presentence custody credits.
Following his conviction of making terrorist threats, with a
finding of personal weapon use, Sanchez received a suspended
prison sentence and a grant of probation. During the nearly
three years following, Sanchez frequently violated the terms of
his probation, including arrests and convictions for new crimes.

         1   All statutory references are to the Penal Code.
The trial court eventually revoked the grant of probation and
ordered that the suspended prison term and accompanying fines
and assessments be executed. Sanchez later filed a petition
contesting the award of presentence custody credits. The court
held a hearing attended by counsel who gave no explanation of
Sanchez’s request. Neither party argued the matter. The court
denied the petition and this appeal ensued.
            FACTUAL AND PROCEDURAL HISTORY
      On June 24, 2015, the trial court found Sanchez guilty of
making criminal threats, with a finding that he personally used a
deadly or dangerous weapon (knife) during commission of the
crime. (§§ 422, subd. (a), 12022, subd. (b)(1).) The court imposed
a four-year prison term, consisting of an upper three-year term
for the crime and a one-year term for the weapon use
enhancement, and ordered payment of fines and assessments.
The court then suspended execution of sentence and placed
Sanchez on formal probation with terms and conditions for five
years, including service of 690 days in county jail. The court then
awarded Sanchez 690 days of presentence custody credits,
consisting of 345 days of actual custody plus 345 days of conduct
credits. (§§ 2900.5, subd. (a), 4019, subds. (b), (c).)
      Sanchez appealed. We affirmed the judgment in an
unpublished opinion after Sanchez’s attorney found no arguable
issues on appeal. (People v. Sanchez (Sept. 28, 2016, B265505).).
      On January 5, 2016, Sanchez was arrested in San
Bernardino County for possession of an illegal weapon, among
other things. He was convicted of a different related offense and,
on June 9, 2016, sentenced to a 16-month prison term.
      On February 3, 2017, the trial court in the present case
found that Sanchez had violated his probation terms for suffering




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the San Bernardino County arrest and conviction, and for failing
to complete a residential drug treatment program. The court
offered to reinstate Sanchez’s grant of probation if he agreed to
waive the custody credits earned from January 5, 2016, to
February 3, 2017 (454 days), regarding the San Bernardino
County conviction and sentence. Sanchez expressly agreed to the
surrender of “395 days actual credit [plus 59 days conduct credit]
for all purposes, meaning that if [the court sends him] to state
prison, [he] will not get any credit for that time.”
       On September 21, 2017, Sanchez was arrested and
incarcerated for committing another offense (vandalism).
Subsequently, the trial court revoked Sanchez’s probation and, on
December 14, 2017, held a probation violation hearing. Sanchez
admitted the violation. The court reinstated probation with a
requirement that Sanchez enroll in another drug treatment
program.
       When Sanchez failed to appear for a subsequent probation
progress report hearing, the trial court set another probation
violation hearing. On March 20, 2018, the court terminated
probation and ordered that Sanchez serve the previously imposed
prison sentence and pay the fines and assessments. Initially, the
court awarded Sanchez 196 days of custody credits served in part
on his new criminal offense. The court later corrected this award
to 264 days of custody credits for time served from September 21,
2017, through December 14, 2017, and January 1, 2018, through
March 20, 2018.
       On May 26, 2018, Sanchez filed a petition requesting 365
days of presentence actual custody and conduct credits, i.e., 295
days of actual custody credits and 90 days of conduct credits.
Elsewhere in the petition, Sanchez states that he was confined




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for 365 days prior to conviction and sentencing. The petition did
not provide other specifics or explanation regarding the requested
credits, as Sanchez now concedes.
       On June 27, 2019, the trial court held a hearing to consider
Sanchez’s petition. The court noted that Sanchez had waived all
credits received from January 5, 2016, through February 3, 2017
(395 days). The court ordered the correction of the minute order
and abstract of judgment, however, to reflect a corrected award of
264 days for time served (132 days actual custody plus 132 days
conduct credits) in part for Sanchez’s second criminal offense.
Neither party presented argument at the hearing.
       Sanchez appeals and contends that the trial court erred by
denying his petition regarding additional presentence custody
credits. He also asserts that any excess credits should apply
against his parole period and payment of fines.
                           DISCUSSION
       Sanchez now argues that the trial court erred by not
awarding 345 actual custody days and 345 conduct credit days for
the time served following his arrest and prior to his June 24,
2015, conviction in the present case. He asserts that these 690
days are excess custody credits that apply to reduce both his
parole period and the fines imposed at sentencing. (§ 2900.5,
subd. (a) [application of excess credits against fines]; In re
Ballard (1981) 115 Cal.App.3d 647, 650 [section 2900.5 credits
may apply against period of incarceration as well as parole
period].)
       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 first presents the claim in the trial court at the time of




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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, which may be made informally in writing.” Thus,
section 1237.1 serves to conserve appellate judicial resources by
requiring claims concerning presentence custody credits first be
made in the trial court. (People v. Jordan (2018) 21 Cal.App.5th
1136, 1142.) Dismissal of the appeal is required where a
defendant does not make a motion to correct an award of
presentence custody credits in the trial court. (People v.
Alexander (2016) 6 Cal.App.5th 798, 801.)
       Here the same trial judge presided over Sanchez’s three-
year case since its inception – through trial, sentencing, frequent
probation violation hearings, and petition to modify presentence
custody credits. The record reveals that the trial judge remained
familiar with Sanchez’s case, terms of probation, and efforts at
rehabilitation. The petition to modify credits, however, requested
an award of 295 actual days plus 90 conduct days without
explanation of those numbers. At the hearing regarding the
petition, counsel presented no argument or explanation. The
reason for the 295 days plus conduct credits is not obvious from
our examination of the record. The trial court is in the best
position to determine Sanchez’s request now for 690 days of
credit and application, if any, to his parole period and fines.
       The appeal is dismissed.
       NOT TO BE PUBLISHED.

                                      GILBERT, P. J.
We concur:

             YEGAN, J.                PERREN, J.




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                   Scott T. Millington, Judge

             Superior Court County of Los Angeles

                ______________________________



      Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.




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