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Name: People v. Donan
Case #: B163471
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 04/08/2004

Appellant was tried twice for first degree murder and attmepted robbery. The initial judgment was reversed because of Wheeler error. Upon retrial, he was convicted of first degree murder with a special circumstance that it occurred during an attempted robbery and use of a firearm. Appellant was sentenced the first time to life in prison without the possibility of parole (LWOP) and was awarded a total of 718 days of credit. Following retrial and reconviction, he was sentenced again, and given credits for 1120 days: the original 718 days (Phase I) plus an additional 256 actual days (Phase III) plus conduct credits totalling an additional 146 days. The court ordered corrections to calculate additional custody credits for the time appellant spent in state prison. Appellant contended that the trial court erred when it granted presentence conduct credits for Phase I and Phase III, but not for Phase II (the time spent in prison between the initial sentencing and remand). The appellate court here rejected that argument. Appellant was not entitled to receive Penal Code section 4019 credits for Phase II. It is up to the Department of Corrections to decide what conduct credits are received for Phase II. Judicial intervention is inappropriate unless and until appellant first exhausts administrative remedies.