Filed 4/8/16 P. v. White CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Lassen) ----

THE PEOPLE, C077288 Plaintiff and Respondent, (Super. Ct. No. CR030513) v. DANIEL WOOD WHITE, Defendant and Appellant.

Appointed counsel for defendant Daniel Wood White has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.1 (People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental briefing from the parties on the propriety of correcting

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On October 27, 2012, Warden Nicholas Buckler, a peace officer for the Department of Fish and Wildlife, made contact with defendant for the purpose of inspecting defendant’s bow. While in the outbuilding inspecting the bow, Buckler noticed a loaded single-shot, .410-shotgun hanging on the wall. Defendant admitted that he was a convicted felon who is not permitted to possess a firearm, and also admitted that there were other guns in a locked shed on the property.

Defendant was charged in Lassen County Superior Court case No. CR030513 with illegal possession of a firearm by a convicted felon. (Pen. Code, § 29800.)2 It was further alleged that at the time defendant committed the offense, he was released from custody on bail or his own recognizance. (§ 12022.1.) It was also alleged that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).

Trial was set for August 19, 2013.

On July 30, 2013, the public defender’s office was relieved and retained counsel Jordan Funk was to file a substitution of attorney. On August 27, 2013, defendant informed the court that he would be retaining new counsel. On November 5, 2013, the court appointed new counsel for defendant.

Trial commenced on February 20, 2014. Defendant agreed that the jury be read a stipulation that he had a prior felony conviction. It was also stipulated that he was on bail at the time the present offense was committed. The jury found defendant guilty of illegal

Sentencing took place on July 8, 2014. Prior to sentencing on the present matter, defendant entered into plea agreements on two other cases that were pending--case Nos. CR030502 and CR030326. The trial court dismissed one of the prior prison term enhancements and sentenced defendant to an aggregate term of seven years, as follows: in the present case (No. CR030513) to the midterm of two years for being in possession of a firearm, a consecutive one year for the prior prison term, and a consecutive two years for the on-bail enhancement; in case No. CR030326 to a consecutive eight months (one- third the midterm) for vandalism; in case No. CR030502 to a consecutive eight months (one-third the midterm) for possession of a controlled substance and a consecutive eight months (one-third the midterm) for possession of stolen property.

Defendant filed a timely notice of appeal in the present case (No. CR030513). On March 26, 2015, while this appeal was pending, the trial court considered defendant’s petition for reclassification and resentencing in case No. CR030502 and reduced his convictions (possession of a controlled substance & possession of stolen property) to misdemeanors. (See § 1170.18.)3 Our review of the record has revealed an error in the trial court’s calculation of custody credits. The record reflects defendant was arrested in case No. CR030513 on October 27, 2012, and made bail the next day, resulting in two days of actual time served.

Defendant was arrested in case No. CR030502 on July 12, 2012, and made bail the same day, resulting in one day of actual time served. Defendant was in custody on all three of

At sentencing, the trial court awarded credits against each sentence on each case.

Failing to adhere to the provisions of section 2900.5, subdivision (b), the trial court awarded 140 actual days (& 140 conduct days) in case No. CR030513 and 141 actual days (& 140 conduct days) in case No. CR030502. The clerk then erroneously included on the abstract of judgment an additional 141 actual days (& 140 conduct days) in case No. CR030326, which were not ordered by the court. The correct number of custody credits to which defendant is entitled is a total of 281 days, accrued as follows: 140 days of actual time (2 plus 138) and 140 conduct days in case No. CR030513, one day of actual time in case No. CR030502, and no custody credits in case No. CR030326. (See People v. Cooksey (2002) 95 Cal.App.4th 1407, 1413-1415.)

Upon discovering the error in award of custody credits, we requested the parties provide supplemental briefing regarding whether this court has jurisdiction in the instant appeal, which was taken from the judgment in case No. CR030513, to correct the errors in the award of custody credits attributed to case Nos. CR030326 and CR030502. We agree with the Attorney General that we have jurisdiction to correct the error.5

Defendant was given one continuous term of confinement in case Nos. CR030513, CR030326, and CR030502, and was entitled to custody credits to be computed against that total term, without providing for dual use of credits for his period of custody attributable to his multiple offenses for which the consecutive sentence was imposed. (§ 2900.5, subd. (b); People v. Schuler (1977) 76 Cal.App.3d 324, 330, fn. 10 [where sentences are to be served consecutively, presentence custody credit is credited to the one continuous term].) Therefore, the custody credits to which defendant is entitled in case Nos. CR030502 and CR030326 are dependent upon the custody credits he receives in case No. CR030513. Because defendant filed a notice of appeal in case No. CR030513, we may correct the award of custody credits to be applied to the other two dependent cases comprising his continuous term of confinement.

A sentence that fails to award the legally mandated custody credits is unauthorized and may be corrected whenever discovered. (People v. Acosta, supra, 48 Cal.App.4th at p. 428, fn. 8; People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Accordingly, we shall modify the sentence to award defendant with 140 actual days and 140 conduct days in

improper award of custody credits here. (§ 1237.1; People v. Acosta (1996) 48 Cal.App.4th 411, 422, 427; People v. Delgado (2012) 210 Cal.App.4th 761, 765-766.)

This is not a case where defendant appealed and contended there was an issue of presentence credit calculation. We raised the issue. Moreover, the issue is not one of mathematical error but is, at least in part, one involving the substantive interpretation of the custody credit statutes. (See Delgado, at p. 767.) case No. CR030513, and one day of custody credit in case No. CR030502, for a total of days of presentence custody credit.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION The judgment is modified to award 280 days of custody credit in Lassen County Superior Court case No. CR030513 (comprised of 140 actual days & 140 conduct days), one day of custody credit in Lassen County Superior Court case No. CR030502, and no custody credits in Lassen County Superior Court case No. CR030326. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and forward a certified copy thereof to the Department of Corrections and Rehabilitation.

/s/ Blease, Acting P. J.

We concur:

/s/ Nicholson, J.

/s/ Murray, J.