Filed 4/25/13 P. v. Ognev CA1/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134268
v.
GEORGIY M. OGNEV,                                                    (San Francisco County
                                                                     Super. Ct. No. 215984)
         Defendant and Appellant.


         Georgiy M. Ognev appeals from a judgment upon a jury verdict finding him guilty
of misdemeanor simple assault (Pen. Code, § 240) and misdemeanor elder abuse (Pen.
Code, § 368). He contends that the trial court erroneously calculated both his presentence
custody and conduct credits. We conclude that defendant must first seek relief on the
issue of credits in the trial court and therefore dismiss the appeal.
         Penal Code section 1237.1 provides that “[n]o 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.”
         As the Attorney General points out, there is nothing in the record to reflect that
defendant raised the issue of credits in the trial court. Consequently, defendant may not
raise the issue on appeal. (Pen. Code, § 1237.5; People v. Clavel (2002) 103 Cal.App.4th
516, 518–519.) “Because the record on appeal contains neither a motion to amend the
abstract of judgment to correct the alleged miscalculation of presentence custody credits,


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nor a trial court ruling on such a motion, the present appeal must be dismissed.” (Clavel,
supra, at p. 519.)
       Defendant’s reliance on People v. Delgado (2012) 210 Cal.App.4th 761, 765 is
misplaced. There, the court held that Penal Code section 1237.1 did not require dismissal
of an appeal where the issue on appeal is not whether custody credits were miscalculated,
but under which version of Penal Code section 4019 the credits should have been
calculated. (Id. at p. 764, 766.) “A determination of which version of a statute applies
(which . . . may require interpretation and application of principles of statutory
construction and constitutional law) is much different than a mere mathematical
calculation.” (Id. at p. 767.)
       Here, defendant’s claim on appeal is simply that his custody and conduct credits
were incorrectly calculated. Since he has not sought relief on this issue in the trial court,
we must dismiss the appeal.
                                      DISPOSITION
       The appeal is dismissed.




                                                  _________________________
                                                  Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.



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