Error and/or relief
Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.
First Holding:
Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.
The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.
The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.
Authority:
PEN 2900.1
People v. Sek (2022) 74 Cal.App.5th 657, 673
People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33
Second Holding:
Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”
Authority:
PEN 2933.1
Third Holding:
The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.
Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.
If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.
Authority:
People v. Gonzalez (2017) 2 Cal.5th 1138, 1141
People v. Murphy (2001) 25 Cal.4th 136, 142
In re M.M. (2012) 54 Cal.4th 530, 536
In re DeLong (2001) 93 Cal.App.4th 562, 568
People v. Manzo (2012) 53 Cal.4th 880, 889
Fourth Holding:
Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”
We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.
Authority:
People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033
People v. Smith (2024) 100 Cal.App.5th 741, 760
In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445
Fifth Holding:
Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.
Authority:
People v. Burke (1956) 47 Cal.2d 45
Sixth Holding:
The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
Authority:
People v. Zackery (2007) 147 Cal.App.4th 380, 385
Seventh Holding:
The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.
Authority:
People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3