Fabela

People v. Fabela

Good Law
12 Cal. App. 4th 1661·16 Cal. Rptr. 2d 447·1993 Cal. App. LEXIS 77·93 Daily Journal DAR 1354·93 Cal. Daily Op. Serv. 755
Court of Appeal of CaliforniaJanuary 28, 1993B057139California1,431 words

Opinion

Opinion

Turner, J.

I. Introduction

Raul Fabela and Teddy Lapina appeal from the judgments entered following a jury trial in wMch they were convicted of second degree robbery in wMch Mr. Lapina used a firearm. (Pen. Code, §§ 211, 12022.5,12022, subd. (a)(1).) Mr. Fabela admitted that he had suffered a prior felony conviction for wMch he served a separate prison term. (Pen. Code, § 667.5, subd. (b).) Mr. Fabela contends: “The trial court prejudicially erred in failing to instruct the jury sua sponte upon the lesser included offense of petty theft as defined by Penal Code sections 484, 485, 487, and 488." The parties dispute the amount of presentence credits to wMch Mr. Fabela and Mr. Lapina are entitled. In the published portion of this opinion, we conclude that Mr. Fabela has received an excessive amount of presentence credits.

II. Factual Matters

III. Discussion

A. Unpublished Issues

B. Published Issues

Prior to sentencing, Mr. Fabela served 223 days in custody. He was given credit for 223 of actual custody plus 112 of conduct credits for total credits of 335 days. In People v. Dailey (1992) 8 Cal.App.4th 1182, 1184 [ 11 Cal.Rptr.2d 136 ], our colleagues in Division Four of this…

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