People v. Sweat CA2/6 ( 2020 )

Filed 11/23/20 P. v. Sweat CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B301600
(Super. Ct. No. BA431774 )
Plaintiff and Respondent, (Los Angeles County)
v.
SESMON SWEAT,
Defendant and Appellant.
Sesmon Sweat seeks a remand for a determination of
custody credits (Pen. Code,1 § 2900.5) and a correction of the
abstract of judgment to conform to the trial court’s oral
pronouncement of judgment. We remand without prejudice the
issue of custody credits. We correct the abstract of judgment.
FACTS
In February 2016, Sweat pled guilty to robbery (§ 211) and
admitted he had a prior serious felony conviction (§ 667, subd.
(a)(1).) The trial court sentenced him to a five-year upper term
for the robbery and a consecutive five years for the prior serious
1 All statutory references are to the Penal Code.
felony conviction, for a total term of 10 years. The trial court
suspended execution of the sentence and placed him on formal
probation for three years on condition that he serve 812 days in
county jail. He was given presentence custody credit for the 812
days.
On October 11, 2018, Sweat was arrested for violating
section 288.4, arranging to meet a minor for lewd and lascivious
behavior.
On October 15, 2018, Sweat’s probation was summarily
revoked for violating a condition of his probation.
The prosecutor elected to dismiss the charge of violating
section 288.4 and to proceed with the probation violation hearing.
The trial court dismissed the charge of violating section 288.4 on
December 13, 2018.
On September 20, 2019, the trial court held a probation
violation hearing. The court lifted the suspension of sentence
and sentenced Sweat to 10 years with 812 days’ custody credit
earned prior to his placement on probation. He received no
custody credit for the time between when he was placed in
custody for a parole violation and the time the suspension of his
10-year sentence was lifted.
At the hearing Sweat asked the trial court if he was
entitled to additional custody credits for the time spent in
custody on probation. The trial court replied “I’m not sure right
now, but it looks like you might.”
Sweat did not pursue the matter further in the trial court.
The abstract of judgment reflects no custody credits beyond the
812 earned prior to his placement on probation.
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DISCUSSION
I
Custody Credit Appealability
The People contend Sweat’s challenge to his custody credits
fails to comply with section 1237.1 and must be dismissed.
Section 1237.1 provides: “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, which may be made informally in writing. The
trial court retains jurisdiction after a notice of appeal has been
filed to correct any error in the calculation of presentence custody
credits upon the defendant’s request for correction.”
Despite the trial court’s express willingness to consider
additional custody credits, Sweat made no motion pursuant to
section 1237.1. If it were simply a matter of calculation, we
might consider the matter for the first time on appeal. (See
People v. Jones (2000) 82 Cal. App. 4th 485, 493 [we may resolve
custody credits issue where other matters must be decided on
appeal].) But Sweat concedes it is not simply a matter of
calculation.
The proceedings were suspended while Sweat was
evaluated for competency to stand trial. Sweat was eventually
found competent, but he concedes: “While it seems likely that
appellant was in the county jail while proceedings were
suspended, since there was no probation report it cannot be
determined with certainty. Therefore, the amount of conduct
credits to be awarded cannot be determined with precision.”
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Sweat also concedes he is not entitled to custody credits
from the time he was arrested for violating section 288.4 until the
date his probation was summarily revoked. (See People v. Pruitt
(2008) 161 Cal. App. 4th 637, 648-649.) The People do not contest
Sweat may be entitled to some custody credits from the time his
probation was summarily revoked until sentencing. (See People
v. Bruner (1995) 9 Cal. 4th 1178.) But how much, if any, is a
question we cannot answer on the present record.
Sweat seeks a remand to the trial court to correct the grant
of credits. But pursuant to section 1237.1, we dismiss the issues
on appeal. We dismiss, however, without prejudice to raising the
matter in the trial court.
II
Correction of Abstract of Judgment
Sweat contends the abstract of judgment must be corrected
to reflect the trial court’s oral pronouncement of judgment. The
People concede the point.
The abstract of judgment shows the upper term was
imposed for second degree robbery and that the time imposed is
10 years. The abstract does not mention the section 667,
subdivision (a)(1) enhancement.
The abstract of judgment is corrected to show the upper
term of five years was imposed for the robbery and a consecutive
term of five years was imposed pursuant to section 667,
subdivision (a)(1), for a total of 10 years’ time imposed.
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DISPOSITION
We remand without prejudice the issue of custody credits
for the trial court to decide. We correct the abstract of judgment
as above. In all other respects, we affirm.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Carol H. Rehm, Jr., Judge
Superior Court County of Los Angeles
______________________________
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
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