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Name: People v. Gisbert
Case #: G045619
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/09/2012

An award of presentence time credits for a period of time defendant was serving a sentence in a separate case is an unauthorized order that can be corrected at any time. While serving a prison sentence defendant sent a Penal Code 1381 demand to the district attorney requesting resolution of a separate case. In response to the demand, on his return to the trial court, he entered a guilty plea to this case and was sentenced to prison for a term to run concurrently to the one he was currently serving. Initially, over the prosecution’s objection, the court granted defendant time credits against the second term for the time between the notice and demand for trial and defendant’s sentence. The court then concluded the award was incorrect and granted the motion to vacate credits. The appellate court agreed with the trial court–a defendant is not entitled to presentence custody credits when he is charged with a crime while already incarcerated and serving a sentence on a separate, earlier crime, regardless whether a concurrent term is imposed. (People v. Bruner (1995) 9 Cal.4th 1178.) An award of credits for time attributed to sentenced time is unauthorized and can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331.)