THE PEOPLE v. JAMES ELVIN PALMER III (2011)

INTRODUCTION

Defendant, appellant, and petitioner James Elvin Palmer III has filed an appeal and a writ of habeas corpus, which we consolidated with the appeal, asking this court to correct his presentence custody credits.   Because the record on appeal is inadequate to determine whether Palmer is entitled to additional credits, we affirm the judgment.   Because Palmer has a remedy in the trial court, the writ petition is denied without prejudice.

BACKGROUND

On December 18, 2007, Palmer pleaded no contest to possession of cocaine (Health & Saf.Code, § 11350, subd. (a)) and was placed probation for three years and ordered to complete an in-custody drug treatment program.   Palmer agreed that the time spent in that program could not be used as credit against his sentence if he violated probation.   He received 17 actual days and 8 days of conduct credit.

On May 12, 2009, probation was revoked and Palmer was sentenced to two years in prison.   The trial court awarded him 269 days of actual days plus 24 days of conduct credit, for a total of 293 days.

Thereafter, on November 3, 2009, Palmer asked the trial court to correct his credits, but the court denied the motion, and it also denied his subsequent motion for reconsideration.

DISCUSSION

“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.”  (Pen.Code, § 1237.1;  see also People v. Acosta (1996) 48 Cal.App.4th 411, 422-423 [section 1237.1 was adopted to promote judicial economy to avoid using the appellate process for the minor ministerial act of calculating credits].)

The trial court below gave Palmer 293 days of credits.   It stated its calculation of credits:

“On December 18, 2007, defendant was placed on formal probation, given custody credits for the time he had been in custody (17 actual plus 8 days good time for a total of 25 days) and ordered released;

“On May 13, 2008, defendant was found in violation of probation and then reinstated on probation and ordered released to a VA representative to enroll in a drug treatment program.   Defendant's custody credits for this time period is 61 actual plus 30 days of good time for a total of 91 days;

“The court has no record of defendant being in custody in June 2008 on this case ;

“On July 29, 2008, defendant was found in violation of probation, reinstated on probation and ordered to serve 90 additional days in county jail on this case.   At the time, he was given credit of 4 actual plus 2 days of good time for a total of 6 days to be applied toward the 90 days.   If defendant remained in custody for a longer period, it was not on this case;

“On February 10, 2009, defendant was ordered released on this case pending a probation violation setting hearing.   At the time, defendant had credits of 8 actual plus 4 days of good time for a total of 12 days.   If defendant was not released on that day, it may have been due to a parole hold, for which defendant is not entitled to receive credit on this case;  and,

“On May 12, 2009, defendant was found in violation of probation.   Defendant had spent 51 actual days in county jail and was given 24 days of good time for a total of 75 days.   Defendant was sentenced to serve two years in state prison and given a total of 293 days custody credits on the case.”  (Italics added.)

In his appeal, Palmer stated that the trial court should have given him credit for time he spent in custody from June 6 to June 23, 2008.   He admitted, however, that facts to support such credits were not a part of the record on appeal.   When the Attorney General pointed out that Palmer relied on facts outside the record, Palmer filed the writ, which included a print out from the Los Angeles County Sheriff's Department showing that he was in custody from June 6, 2008 to June 26, 2008.   In response, the Attorney General pointed out, correctly, that it cannot be ascertained from the print out whether Palmer's June 2008 custody was in this case or another.   This point is well-taken, given that the trial court noted that it had no record of Palmer being in custody in June 2008 in this case.   We therefore agree with the Attorney General that this matter is better addressed by the trial court.   This court cannot verify the trial court's calculations because the court did not state the beginning and end dates of Palmer's custody and we cannot ascertain whether the time Palmer spent in custody in June 2008 was on this case or another.

DISPOSITION

The judgment is affirmed.   The petition for writ of habeas corpus is denied without prejudice.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

ALDRICH, J.

KLEIN, P. J. KITCHING, J.