Error and/or relief
At the resentencing under section 1172.75, the court erroneously imposed an enhancement that had been vacated as a result of an earlier appeal. The court also erred by not recalculating the credit for time served through the date of the resentencing. Further, the restitution fine must be vacated, as it was imposed at least 10 years ago.
First Holding:
When a prison term already in progress is modified the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody. The California Department of Corrections and Rehabilitation is responsible for calculating any postsentence custody credits.
Authority:
People v. Buckhalter (2001) 26 Cal.4th 20, 29
People v. Dean (2024) 99 Cal.App.5th 391, 397
Second Holding:
After 10 years have elapsed from the imposition of a restitution fine imposed under section 1202.4, any remaining balance is unenforceable and uncollectible. Any portion of a judgment imposing those fines shall be vacated.
Authority:
PEN 1465.9
Third Holding:
The trial court struck the six one-year prior prison terms but declined to otherwise modify the sentence. However, although this court had previously vacated the three-year term imposed on count 1 pursuant to section 12022.7,(a), in resentencing the defendant, the trial court again imposed the enhancement and three-year term. The parties agree this was error, as do we. The great bodily injury enhancement imposed as to count 1 must be stricken and the three-year term vacated.
(Gary note: The court cited no authority for its order striking the enhancement that had been stricken in the earlier appeal. The relief seems obvious enough. Under section 1260, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
(If that doesn’t precisely address the issue, one could also look at Dutra, although it, too, is not exactly on point. It dealt with the trial court’s act of not complying with the instructions in the remittitur because of a change in the law, but the change did not permit it to act outside the direction of the remittitur. Again, not exactly what happened here.
(Or one could argue that imposing the enhancement resulted in an unauthorized sentence (again), which can be corrected whenever the matter is before the court. See, for example, Sanders.
(It just seems so intuitive that the trial court, on resentencing, could not reimpose an enhancement that was stricken as unlawful in the earlier appeal. I’m not surprised the appellate court did not see a need to cite authority, particularly where the parties both agreed on the error and remedy. The authorities I have listed below were not cited by the court, and the two cases are fairly distinguishable from this situation, but might prove interesting reading nonetheless.)
Authority:
PEN 1260
People v. Dutra (2006) 145 Cal.App.4th 1359, 1367
People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13