Filed 6/8/23 P. v. Burlew CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079996
v. (Super.Ct.No. FVI1102788)
JONATHAN BURLEW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander
Feer, Judge. Affirmed with directions.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney Generals, Christopher P. Beesley and
Britton B. Lacy, Deputy Attorney Generals, for Plaintiff and Respondent.
1 Defendant and appellant Jonathan Burlew appeals from the trial court’s order
denying his petition to amend the abstract of judgment filed on April 12, 2022. The
People concede. For the reasons set forth post, we modify the trial court’s abstract of
judgment to award defendant 1,409 days of actual custody credit.
STATEMENT OF THE CASE1
On January 5, 2012, an amended information charged defendant with attempted
murder under Penal Code2 sections 644 and 187, subdivision (a) (counts 1, 2); assault
with a deadly weapon under section 245, subdivision (a)(1) (counts 3, 4, 6); and first
degree burglary under section 459 (count 5). Moreover, the information alleged that
defendant personally inflicted great bodily injury under section 12022.7, subdivision (a),
as to counts 1 through 5. Furthermore, the information alleged that, as to counts 1, 2, and
5, defendant personally used a deadly and dangerous weapon under section 12022,
subdivision (b)(1).
On September 18, 2015, defendant pled guilty to two counts of attempted murder
(counts 1, 2), first degree burglary (count 5), and assault with a deadly weapon (count 6).
Moreover, defendant admitted personally using a deadly and dangerous weapon and
inflicting great bodily injury upon a victim as to the two attempted murder counts.
Pursuant to the plea agreement, the trial court granted the People’s motion to dismiss the
two remaining counts of assault with a deadly weapon (counts 3, 4), and the court also
1 Because this is a postjudgment appeal regarding a sentencing error, a statement of facts is unnecessary. Any pertinent facts will be provided as needed.
2 All further statutory references are to the Penal Code unless otherwise indicated.
2 struck the special allegations relating to the first degree burglary (count 5). Thereafter,
defendant waived all presentence good time credits, but defendant did not waive any
presentence actual custody credits.
On October 16, 2015, the trial court sentenced defendant to 19 years in state
prison, as follows: (1) the upper term of nine years for the principal count for attempted
murder (count 1), plus 3 years for the bodily injury enhancement and one year for the
deadly weapon enhancement; (2) two years and four months (one-third the midterm) for
the other attempted murder count (count 2), plus one year for the serious bodily injury
enhancement, and four months for the deadly weapon enhancement; one year and four
months (one-third the midterm) on first degree burglary (count 5); and one year (one-
third the midterm) for assault with a deadly weapon (count 6).
The court’s minute order from the sentencing hearing, dated October 20, 2015,
stated that defendant waived “all conduct/good time credits to this point,” he had been in
custody for 585 actual days, and waived “824 credit time served.”
The trial court filed an abstract of judgment on October 21, 2015, an amended
abstract of judgment on October 18, 2017, and a second amended abstract of judgment on
April 21, 2022. In the April 21, 2022, amended abstract of judgment, the court awarded
defendant 585 days credit for actual time served in custody before sentencing. The court
did not award any conduct credits.
On September 12, 2022, defendant filed a “Petition for Amended Abstract of
Judgement” and requested that the court award 823 credits for time served before
sentencing under the terms of the plea agreement. Defendant alleged that he had served
3 1,408 days of actual time in custody, from his arrest on December 8, 2011, to the date of
his sentencing on October 16, 2015. On September 28, 2022, the trial court denied
defendant’s petition.
On October 13, 2022, defendant filed a timely notice of appeal.
DISCUSSION
A. THE TRIAL COURT ERRED IN CALCULATING DEFENDANT’S
PRESENTENCE CREDITS
Defendant contends that “[d]ue process requires that the court grant appellant
credit for actual time served before sentencing as was provided in appellant’s plea
agreement.” Specifically, defendant argues that in his case, “he spent 1408 days of actual
time in custody, from his arrest on December 8, 2011 to the date of his sentencing on
October 15, 2015.”3
The People agree with defendant. In the respondent’s brief, the People state:
“[The People] agree that the abstract of judgment should be amended. Pursuant to his
plea agreement, [defendant] is entitled to credits for actual time in custody from his arrest
date to his sentencing date. An amended abstract is necessary to correct the superior
court’s clerical error and accurately reflect [defendant]’s 1,409[4] presentence actual
custody credits.”
3 The sentencing hearing was held on October 16, 2015, not October 15, 2015.
4 Although defendant seeks 1,408 actual credit days, the People accurately ask for 1,409 actual credit days because the sentencing hearing was held on October 16, 2015, not October 15, 2021, as alleged by defendant.
4 1. BACKGROUND
On September 18, 2013, defendant entered a guilty plea and waived all
presentence conduct credits. Specifically, defendant agreed to waive “all presentence
good time credits under PC 2933.1 and gets only actual credits presentence.” However,
the minute order from defendant’s sentencing hearing on October 16, 2015 states that
defendant “ha[d] been in custody 585 actual days,” and noted that defendant had waived
“824 credit time served.”
In the abstract of judgment and amended abstract of judgment filed, the “credit for
time served” chart was left blank in each document. In the second amended abstract of
judgment filed, the “credit for time served” chart indicated that defendant had 585 total
credits, consisting of 585 actual credits and no local conduct credits.
On September 12, 2022, defendant filed a petition for an amended abstract of
judgment. Defendant alleged that he served 1,408 days in actual custody from his arrest
through his sentencing. Defendant contended that the abstract of judgment incorrectly
excluded 823 credit for actual time served and requested that the trial court remedy this
“plain error,” and amend the abstract of judgment.
On September 28, 2022, the trial court denied defendant’s petition and stated:
“According to the sentencing minutes of Oct. 16, 2015, per plea agreement you waived
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 6/8/23 P. v. Burlew CA4/2
NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079996
v. (Super.Ct.No. FVI1102788)
JONATHAN BURLEW, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander
Feer, Judge. Affirmed with directions.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney Generals, Christopher P. Beesley and
Britton B. Lacy, Deputy Attorney Generals, for Plaintiff and Respondent.
1 Defendant and appellant Jonathan Burlew appeals from the trial court’s order
denying his petition to amend the abstract of judgment filed on April 12, 2022. The
People concede. For the reasons set forth post, we modify the trial court’s abstract of
judgment to award defendant 1,409 days of actual custody credit.
STATEMENT OF THE CASE1
On January 5, 2012, an amended information charged defendant with attempted
murder under Penal Code2 sections 644 and 187, subdivision (a) (counts 1, 2); assault
with a deadly weapon under section 245, subdivision (a)(1) (counts 3, 4, 6); and first
degree burglary under section 459 (count 5). Moreover, the information alleged that
defendant personally inflicted great bodily injury under section 12022.7, subdivision (a),
as to counts 1 through 5. Furthermore, the information alleged that, as to counts 1, 2, and
5, defendant personally used a deadly and dangerous weapon under section 12022,
subdivision (b)(1).
On September 18, 2015, defendant pled guilty to two counts of attempted murder
(counts 1, 2), first degree burglary (count 5), and assault with a deadly weapon (count 6).
Moreover, defendant admitted personally using a deadly and dangerous weapon and
inflicting great bodily injury upon a victim as to the two attempted murder counts.
Pursuant to the plea agreement, the trial court granted the People’s motion to dismiss the
two remaining counts of assault with a deadly weapon (counts 3, 4), and the court also
1 Because this is a postjudgment appeal regarding a sentencing error, a statement of facts is unnecessary. Any pertinent facts will be provided as needed.
2 All further statutory references are to the Penal Code unless otherwise indicated.
2 struck the special allegations relating to the first degree burglary (count 5). Thereafter,
defendant waived all presentence good time credits, but defendant did not waive any
presentence actual custody credits.
On October 16, 2015, the trial court sentenced defendant to 19 years in state
prison, as follows: (1) the upper term of nine years for the principal count for attempted
murder (count 1), plus 3 years for the bodily injury enhancement and one year for the
deadly weapon enhancement; (2) two years and four months (one-third the midterm) for
the other attempted murder count (count 2), plus one year for the serious bodily injury
enhancement, and four months for the deadly weapon enhancement; one year and four
months (one-third the midterm) on first degree burglary (count 5); and one year (one-
third the midterm) for assault with a deadly weapon (count 6).
The court’s minute order from the sentencing hearing, dated October 20, 2015,
stated that defendant waived “all conduct/good time credits to this point,” he had been in
custody for 585 actual days, and waived “824 credit time served.”
The trial court filed an abstract of judgment on October 21, 2015, an amended
abstract of judgment on October 18, 2017, and a second amended abstract of judgment on
April 21, 2022. In the April 21, 2022, amended abstract of judgment, the court awarded
defendant 585 days credit for actual time served in custody before sentencing. The court
did not award any conduct credits.
On September 12, 2022, defendant filed a “Petition for Amended Abstract of
Judgement” and requested that the court award 823 credits for time served before
sentencing under the terms of the plea agreement. Defendant alleged that he had served
3 1,408 days of actual time in custody, from his arrest on December 8, 2011, to the date of
his sentencing on October 16, 2015. On September 28, 2022, the trial court denied
defendant’s petition.
On October 13, 2022, defendant filed a timely notice of appeal.
DISCUSSION
A. THE TRIAL COURT ERRED IN CALCULATING DEFENDANT’S
PRESENTENCE CREDITS
Defendant contends that “[d]ue process requires that the court grant appellant
credit for actual time served before sentencing as was provided in appellant’s plea
agreement.” Specifically, defendant argues that in his case, “he spent 1408 days of actual
time in custody, from his arrest on December 8, 2011 to the date of his sentencing on
October 15, 2015.”3
The People agree with defendant. In the respondent’s brief, the People state:
“[The People] agree that the abstract of judgment should be amended. Pursuant to his
plea agreement, [defendant] is entitled to credits for actual time in custody from his arrest
date to his sentencing date. An amended abstract is necessary to correct the superior
court’s clerical error and accurately reflect [defendant]’s 1,409[4] presentence actual
custody credits.”
3 The sentencing hearing was held on October 16, 2015, not October 15, 2015.
4 Although defendant seeks 1,408 actual credit days, the People accurately ask for 1,409 actual credit days because the sentencing hearing was held on October 16, 2015, not October 15, 2021, as alleged by defendant.
4 1. BACKGROUND
On September 18, 2013, defendant entered a guilty plea and waived all
presentence conduct credits. Specifically, defendant agreed to waive “all presentence
good time credits under PC 2933.1 and gets only actual credits presentence.” However,
the minute order from defendant’s sentencing hearing on October 16, 2015 states that
defendant “ha[d] been in custody 585 actual days,” and noted that defendant had waived
“824 credit time served.”
In the abstract of judgment and amended abstract of judgment filed, the “credit for
time served” chart was left blank in each document. In the second amended abstract of
judgment filed, the “credit for time served” chart indicated that defendant had 585 total
credits, consisting of 585 actual credits and no local conduct credits.
On September 12, 2022, defendant filed a petition for an amended abstract of
judgment. Defendant alleged that he served 1,408 days in actual custody from his arrest
through his sentencing. Defendant contended that the abstract of judgment incorrectly
excluded 823 credit for actual time served and requested that the trial court remedy this
“plain error,” and amend the abstract of judgment.
On September 28, 2022, the trial court denied defendant’s petition and stated:
“According to the sentencing minutes of Oct. 16, 2015, per plea agreement you waived
all good time conduct credits to date of sentencing. The minutes also reflect you waived
824 days of credit on 10/16/15. 1,409 - 824 = 585 days of actual credit. Minutes are
enclosed.”
5 2. CLERICAL ERRORS CAN BE CORRECTED ON APPEAL
In their respondents brief, the People state: “[Defendant] argues that the superior
court denied him due process when it failed to award him all of his actual credits
presentence in accordance with his plea agreement. [Citation.] [The People] agree[] that
the abstract of judgment inaccurately states the amount of presentence actual custody
credits [defendant] is owed. This court should correct the clerical error.” We agree with
both defendant and the People.
Under sections 2900.5 and 2933.1, the Legislature set forth two types of
presentence credits: actual credit and conduct credit. A defendant sentenced to state
prison is ordinarily entitled to credit against the sentence imposed for all days spent in
custody prior to sentencing. (§ 2900.5, subd. (a); People v. Denman (2013) 218
Cal.App.4th 800, 814.) A partial day, including the day of the sentencing hearing, is
counted as a full day. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Conduct
credits are awarded according to a specific statutory formula based on the defendant’s
convictions. (§§ 4019, 2933.1, subd. (c).) The sentencing court has the duty to calculate
the presentence actual credit days and presentence conduct credit days and must record
the total credits allowed on the defendant’s abstract of judgment. (§ 2900.5, subd. (d);
People v. Black (2009) 176 Cal.App.4th 145, 154; see also Cal. Rules of Court, rules
4.310, 4.472.)
A defendant can waive his entitlement to either type of presentence custody credit.
However, the waiver must be knowing and intelligent. (People v. Lara (2012) 54 Cal.4th
896, 903, fn. 3; People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055.)
6 When the only issue on appeal is an error of awarded presentence credits, a
defendant must first seek correction of the award with the trial court before raising the
issue on appeal. (§ 1237.1; People v. Acosta (1996) 48 Cal.App.4th 411, 425-428.) The
application of sentencing statutes to undisputed facts is subject to this court’s independent
review. (People v. Anaya (2007) 158 Cal.App.4th 608, 611.) This court can correct
simple clerical or arithmetical errors regarding presentence credits without remand.
(People v. Cardenas (2015) 239 Cal.App.4th 220, 235–236.)
In this case, it is undisputed that defendant spent 1,409 days in custody.5
Defendant remained in custody from the date of his arrest on December 8, 2011, to and
including the date of his sentencing hearing on October 16, 2015. Moreover, under the
plea agreement, although defendant waived his conduct credit, he did not waive his actual
time served, and there is nothing in the record to suggest that defendant waived any
presentence credits after entering his plea. As such, defendant is entitled to 1,409 days of
presentence credit.
Therefore, the trial court’s sentencing minute order indicating that defendant “has
been in custody 585 actual days” reflects a clerical or mathematical error. Prior to filing
this appeal, defendant first filed a petition to correct this clerical error in calculating his
presentence credit in the trial court, which the lower court denied. Therefore, this court
can correct the miscalculation without remand. (See § 1237.1; People v. Cardenas,
5 As noted ante, defendant has argued that he is entitled to 1,408 days of credit, instead of 1,409 days, because defendant used the erroneous date of October 15, 2015, as his sentencing hearing date.
7 supra, 239 Cal.App.4th at pp. 235-236; People v. Acosta, supra, 48 Cal.App.4th at pp.
427-428.)
Based on the above, we agree with both parties that the trial court should have
awarded defendant 1,409 days of actual credit.
DISPOSITION
The trial court is directed to correct the sentencing minute order, nunc pro tunc, to
reflect 1,409 days of actual custody credits. The court is further directed to prepare a
corrected abstract of judgment to reflect 1,409 days of actual custody credits, and forward
a copy to the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
MENETREZ J.