Filed 7/31/14 P. v. Harris CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064750

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD247880,
                                                                     SCD248197)
MARK FREDERICK HARRIS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed as modified, with directions.

         Steven J. Carroll, 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

Kimberley A. Donahue, Deputy Attorneys General, for Plaintiff and Respondent.

         Appellant Mark Frederick Harris was convicted in two separate cases of multiple

felonies. He was sentenced to prison in both cases. He appeals, challenging only the
sentence in one of the cases. He argues the trial court should not have stayed a prison

prior, rather the trial court was required to strike the prior. Harris also contends he is

entitled to one more day of custody credit.

       The People agree the court erred in staying, rather than striking the prison prior.

The People agree Harris is entitled to one more day credit, but contend the issue has been

forfeited by failure to raise it in the trial court.

       We will first direct the trial court to strike the prior. We will also order the court

to award Harris one additional day of custody credit.

                               PROCEDURAL BACKGROUND

                                    A. Case No. SCD247880

       A jury convicted Harris of two counts of assault with a deadly weapon (Pen.

Code,1 § 245, subd. (a)(1)), and one count of battery with serious bodily injury (§ 243,

subd. (d)). The jury found true an allegation of inflicting great bodily injury (§ 12022.7,

subd. (a)). Harris admitted a prison prior (§ 667.5, subd. (b)).

       The court sentenced Harris to a determinate term of seven years. The court stayed

the sentence on the prison prior.

                                    B. Case No. SCD248197

       Harris entered pleas of guilty to three felony counts involving the possession of

heroin and methamphetamine. The court imposed a stipulated sentence of two years




1      All further statutory references are to the Penal Code unless otherwise specified.
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eight months. The sentence was ordered to run consecutively to the sentence in case No.

SCD247880.

                                          DISCUSSION

                                                   I

                                      THE PRISON PRIOR

       At the time of sentencing the trial court decided not to impose a consecutive term

for the prison prior admitted by Harris. The court stayed the term for that prior. The

parties properly agree the court may not stay the sentence on an enhancement in lieu of

striking it. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell

(1999) 76 Cal.App.4th 305, 311.) Accordingly, we will remand the case to the trial court

with directions to strike the prison prior and to amend the abstract of judgment

accordingly.

                                                   II

                                      CUSTODY CREDITS

       Harris contends the trial court erred in the calculation of credits, in that it did not

start the calculation with the date of the release of his parole hold, but instead began the

calculation with the following day. The People recognize that Harris would ordinarily be

entitled to the extra day credit, however the People contend that Harris has forfeited the

issue by failing to raise it in the trial court.

       Harris was in custody on a parole hold at the time of his pretrial incarceration in

this case. The parole hold was apparently based on conduct unrelated to the pending



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charges. The parole hold was released on July 13, 2013, but the court's calculations were

based upon July 14, 2013 as the correct starting date.

         Section 1237.1 provides that an appeal shall not be taken on the basis of claimed

error in the calculation of credits unless the matter has first been presented in the trial

court.

         Harris contends that section 1237.1 does not apply here because the trial court

properly calculated the credits, assuming July 14 was the starting day. Relying on People

v. Delgado (2012) 210 Cal.App.4th 761, 766-767, Harris contends this case does not fall

into the forfeiture rule of section 1237.1. He argues the error is a legal error, not a

mathematical error and that in any event, the appeal was properly brought on independent

grounds.

         We recognize the People argue we should apply forfeiture, however we decline to

do so. It is without dispute the trial court erred in the determination of the starting date

for the calculation of credits. It is also true this appeal is viable for independent reasons

and thus the idea of requiring defendants to correct calculations in the trial court to avoid

the undue consumption of the appellate court's resources, does not clearly apply here. It

would be a waste of judicial resources to have Harris return to the trial court to correct an

error that is clear on the record, when the case is already properly before us. Given the

circumstances of this case, we decline to require the defendant to serve an additional day

in custody because trial counsel missed an obvious error.




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                                      DISPOSITION

       The superior court is directed to strike the prior conviction under section 667.5,

subdivision (b). The court is also directed to grant Harris one additional day of custody

credit. In all other respects the judgment is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:


                        NARES, J.


                   O'ROURKE, J.




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