Filed 3/3/14 P. v. Mitchell CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B244990

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA078788)
         v.

JADON MITCHELL,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of the County of Los Angeles,
Judith Meyer, Judge. Affirmed.
         Boyce & Schaefer, Laura G. Schaefer, under appointment by the Court of Appeal,
for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, Allison H. Chung, Deputy Attorney General, for
Plaintiff and Respondent.
                                     INTRODUCTION
        On appeal, defendant and appellant Jadon Mitchell (defendant) contends that the
sentencing order and abstract of judgment in a case in which he pleaded nolo contendere
to committing grand theft of an automobile should be amended to state that his term of
imprisonment in that case commenced on the date he was “delivered to the prison” in a
subsequent case in which he was sentenced for committing second degree robbery (§
212.5, subd. (c)). We affirm the order.


                         PROCEDURAL BACKGROUND
       Defendant pleaded nolo contendere to grand theft of an automobile (§ 487, subd.
(d)(1)) in Los Angeles County Superior Court case number NA078788 (“the grand theft
auto case”). The trial court suspended imposition of sentence; defendant was placed on
three years of formal probation with several terms and conditions, including serving 21
days in county jail.
       Thereafter, defendant was subsequently charged with three counts of second
degree robbery (§ 212.5, subd. (c)) in Orange County Superior Court case number
08CF3238 (“the robbery case”). The trial court in the grand theft auto case revoked
defendant’s probation and issued a bench warrant for defendant’s arrest. Then, in the
robbery case, defendant was sentenced to five years in state prison.
       Defendant filed, in propria persona, in the grand theft auto case, a request for
disposition of probation pursuant to section 1203.2a.,1 and a motion for imposition of


1
        Section 1203.2a, provided in part, “If any defendant who has been released on
probation is committed to a prison in this state or another state for another offense, the
court which released him or her on probation shall have jurisdiction to impose sentence,
if no sentence has previously been imposed for the offense for which he or she was
granted probation, in the absence of the defendant, on the request of the defendant made
through his or her counsel, or by himself or herself in writing . . . . [¶] . . . [¶] . . . If
sentence has not been previously imposed and if the defendant has requested the court
through counsel or in writing in the manner herein provided to impose sentence in the
case in which he or she was released on probation in his or her absence and without the
presence of counsel to represent him or her, the court shall impose sentence and issue its

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sentence in absence of defendant under section 1203.2a, stating that he was serving a
five-year sentence in state prison the robbery case and requesting that his probation be
revoked in the grand theft auto case.
       On February 29, 2012, the trial court held a hearing at which defendant was not
present or represented by counsel. At the hearing, the trial court revoked defendant’s
probation in the grand theft auto case, sentenced defendant to the upper term of three
years, awarded defendant 21 days of custody credits, and stated that defendant’s sentence
was “concurrent with his other case to be served in any penal institution.” The minute
order of the hearing states that defendant’s sentence was “to run concurrently with any
other [case].” The abstract of judgment similarly provides, “SENTENCE TO RUN
CONCURRENTLY WITH ANY OTHER CASE.”
       On October 4, 2012, defendant filed, in propria persona, in the grand theft auto
case a motion pursuant to section 1237.1,2 to correct presentence credits arguing that
because his sentence in the grand theft auto case was ordered by the trial court to be
concurrent with his sentence in the robbery case, he was entitled to presentence credits
for being in custody for the robbery case, referring to section 1203.2a and People v.
Como (1975) 49 Cal.App.3d 604. On that same date, the trial court denied the motion to
correct presentence credits.


commitment, or shall make other final order terminating its jurisdiction over the
defendant in the case in which the order of probation was made. . . . [¶] Upon
imposition of sentence hereunder the commitment shall be dated as of the date upon
which probation was granted. If the defendant is then in a state prison for an offense
committed subsequent to the one upon which he or she has been on probation, the term of
imprisonment of such defendant under a commitment issued hereunder shall commence
upon the date upon which defendant was delivered to prison under commitment for his or
her subsequent offense. Any terms ordered to be served consecutively shall be served as
otherwise provided by law.”
2
       Section 1237.1, stated, “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.”

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       On November 7, 2012, defendant filed a notice of appeal stating that it is “[f]rom
the judgment of this court entered” on “10/4/12, ”—the date the trial court denied
defendant’s motion to correct presentence credits —and “[t]his appeal is based on the
sentence of other matters occurring after the plea.”


                                       DISCUSSION
       The Attorney General contends that defendant’s appeal is untimely because he
should have appealed from the original sentence imposed on February 29, 2012. We
disagree.
       The denial of defendant’s motion to correct presentence credits affects his
substantial rights. (People v. Hyde (1975) 49 Cal.App.3d 97, 103 [“The propriety of an
order denying [a motion for credit for presentence jail time] is obviously an order which
affects the substantial rights of the [defendant]]”.) It therefore is an appealable under
section 1237, which provides, “An appeal may be taken by the defendant . . . (b) From
any order made after judgment, affecting the substantial rights of the party.”
       Defendant contends that pursuant to section 1203.2a and People v. Como, supra,
49 Cal.App.3d 604, the February 29, 2012, sentencing order and the abstract of judgment
in the grand theft auto case should be amended to state that his term of imprisonment in
that case commenced on the date he was “delivered to the prison” in the robbery case.
Modification of the sentencing order and the abstract of judgment are unnecessary.
       “[Section] 1203.2a provides a method by which a probationer who has been
imprisoned for another offense can obtain a disposition of the offense for which he or she
was granted probation. [Citation.] “The underlying purpose of section 1203.2a is to
permit persons who have been committed to prison for offenses committed being placed
on probation to ask the court to exercise discretion in determining whether to order the
suspended sentence to run concurrently with the current one. [Citations.] That is, it is to
prevent inadvertent consecutive sentences which would deprive the probationer of his
right to apply for concurrent sentencing. [Citation.]” (People v. Bethea (1990) 223
Cal.App.3d 917, 922.) Unless the trial court orders consecutive sentences, the term of the

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offense for which probation was granted and revoked commences “upon the date upon
which defendant was delivered to prison under commitment for his or her subsequent
offense.” (§ 1203.2a.)
       The February 29, 2012, sentencing order states that defendant’s sentence was “to
run concurrently with any other [case],” and the abstract of judgment similarly provides,
“SENTENCE TO RUN CONCURRENTLY WITH ANY OTHER CASE.” That is, the
term of the offense in the grand theft auto case commences “upon the date upon which
defendant was delivered to prison under commitment” in the robbery case. (§ 1203.2a.)
       Defendant’s reliance on People v. Como, supra, 49 Cal.App.3d 604 is misplaced.
In that case, Como, the defendant, was sentenced to state prison on a robbery conviction,
and execution of the sentence was suspended and probation granted (“Como’s robbery
case”). (Id. at p. 607.) In two subsequent cases, Como pleaded guilty to two charges of
grand theft and was sentenced to state prison for those offenses (“Como’s grand theft
cases”). (Id. at pp. 607-608.) The trial court in Como’s robbery case revoked probation
and issued a bench warrant for Como’s arrest. When Como appeared before the trial
court in his robbery case, he explained that he had been in jail based on his grand theft
cases, and requested credit on his sentence in his robbery case commencing with the first
date of his incarceration in his grand theft cases. The trial court in Como’s robbery case
gave Como credit on his sentence and ordered the sentence into execution. (Id. at p.
608.) Como contended that the trial court failed to give full credit for the time he had
spent in custody. (Id. at p. 610.)
       In affirming a modified order sentencing Como, the court held that section
1203.2a applied to Como’s sentence, and stated, “In our case the trial court did not order
a consecutive sentence. The order . . . directed ‘Sentence heretofore imposed is ordered
into execution.’ This is a concurrent sentence as a matter of law. (Pen. Code, §
669.) [¶] To avoid misunderstanding [therefore], that order should recite that pursuant to
section 1203.2a the term of imprisonment shall commence upon the date [Como] was
delivered to prison under [Como’s grand theft cases] sentence.” (People v. Como, supra,
49 Cal.App.3d at p. 612.)

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       Here the sentencing order and abstract of judgment do not create the
misunderstanding that was present in People v. Como, supra, 49 Cal.App.3d 604. The
trial court expressly ordered that defendant’s grand theft auto sentence be served
“concurrently with” his sentence in the robbery case. The February 29, 2012, sentencing
order, and the abstract of judgment, accurately reflect the sentence imposed by the trial
court in the grand theft auto case. Accordingly, defendant’s term of imprisonment in the
grand theft auto case commences upon the date on which he was delivered to prison
under commitment in the robbery case. Defendant’s proposed modification therefore is
unnecessary to clarify the trial court’s sentencing order and the abstract of judgment.


                                         DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                 MOSK, J.


We concur:



              TURNER, P. J.



              KRIEGLER, J.




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