Error and/or relief
The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.
First Holding:
The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.
Authority:
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]
Second Holding:
We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.
Authority:
People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]
People v. Blake (1980) 105 Cal.App.3d 619, 623-624
People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]
Third Holding:
Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.
Authority:
PEN 1170(b)(6)
People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992
People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]
Fourth Holding:
At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.
Authority:
People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]
People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]
People v. Velasco (2023) 97 Cal.App.5th 663, 674
People v. Cutting (2019) 42 Cal.App.5th 344, 348