Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA05332, Janice C. Croft, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Mark Baldwin Diaz was convicted of sexual penetration of a victim who was unable to resist due to intoxication, anesthesia, or controlled substance (Pen. Code, § 289, subd. (e)), two counts of oral copulation by means of intoxication, anesthesia or controlled substance (§ 288a, subd. (i)), and two counts of rape by intoxication, anesthesia or controlled substance (§ 261, subd. (a)(3)). Diaz appealed from his conviction and sentence on numerous grounds. On October 17, 2007, we affirmed the convictions but remanded for resentencing consistent with People v. Sandoval (2007) 41 Cal.4th 825, 843-852. (People v. Diaz (Oct. 17, 2007, B185735) [nonpub. opn.].) The remittitur issued on December 21, 2007.
On December 2, 2008, the trial court resentenced Diaz to the middle term of six years on count 10, sexual penetration of a person prevented from resisting due to intoxication, anesthesia or controlled substance (§ 289, subd. (e)). The court imposed one-third the middle term sentence of two years on counts 11 and 12, oral copulation by means of anesthesia or controlled substance (§ 288a, subd. (i)), to be served consecutively. On counts 13 and 14, rape by intoxication, anesthesia or controlled substance (§ 261, subd. (a)(3)), the trial court imposed consecutive middle terms of six years under section 667.6, subdivision (c). Diaz received 1,453 days of presentence custody credit. The court ordered him to pay a $200 restitution fine and imposed and suspended a parole revocation fine pursuant to section 1202.45. This appeal followed.
On May 20, 2009, Diaz through counsel submitted an opening brief in which no issues were raised and asked this court for an independent review of the record under People v. Wende (1979) 25 Cal.3d 436. On September 4, 2009, Diaz through counsel filed a declaration raising issues concerning the calculation of his custody credit and status of two of his convictions as serious or violent felonies. In light of this declaration, we asked the People to file a respondent’s brief addressing the issues raised by Diaz’s counsel.
On December 3, 2009, the People filed a respondent’s brief, conceding the merit of Diaz’s contentions.
DISCUSSION
1. The Trial Court Miscalculated Diaz’s Presentence Credit
The abstract of judgment reflects Diaz received 1,453 days of custody credit when he was resentenced on December 2, 2008. As the People acknowledge, Diaz’s contention that he is entitled to 1,662 days of custody credit has merit.
Presentence custody credit is calculated under section 4019 by: (1) dividing the number of days spent in actual custody by four and rounding down that figure to the nearest whole number; (2) multiplying that number by two to determine the number of days custody credit; and (3) adding the number of days conduct credit to the number of days spent in actual custody. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) When Diaz was first sentenced on August 31, 2005, the trial court awarded presentence custody credit of 624 days (416 actual days and 208 days of conduct credit) pursuant to section 4019. However, at the resentencing hearing, the trial erroneously omitted the previously awarded 208 days of conduct credit in recalculating Diaz’s total presentence custody credit as 1,453 days, rather than as 1,662 days. This court shall correct the trial court’s miscalculation of presentence custody credit. (See People v.Jones (2000) 82 Cal.App.4th 485, 493.)
2. The Abstract of Judgment Inaccurately Shows Diaz Was Convicted of Violent Offenses in Counts 11 and 12
The abstract of judgment has two boxes checked indicating the convictions on counts 11 and 12 for oral copulation by means of anesthesia or controlled substance are “consecutive 1/3 violent offenses.” However, a violation of section 288a, subdivision (i) is not among the violent offenses listed in section 667.5, subdivision (c). Accordingly, as the People acknowledge, the abstract of judgment should be corrected to check the boxes showing the convictions on counts 11 and 12 were for “consecutive 1/3 non-violent offenses.”
DISPOSITION
The judgment is affirmed as modified. In accordance with this opinion, the clerk of the superior court shall prepare and deliver to the Department of Corrections and Rehabilitation an amended abstract of judgment that shows the correct presentence custody credit and the correct boxes are checked for the convictions on counts 11 and 12.
We concur: PERLUSS, P. J., JACKSON, J.
All further statutory references are to the Penal Code.