Error and/or relief
This is an appeal following a resentencing under section 1172.75. The restitution fine must be vacated because it is more than 10 years old. The trial court erred in failing to calculate the credit for time served and leaving it up to the Department of Corrections and Rehabilitation to correct. The court did not err in selecting the triad 16 months, 2 years, or 3 years for attempted robbery.
First Holding:
Section 1465.9(d) provides for the elimination of any unpaid balance of a restitution fine imposed under section 1202.4 once 10 years has elapsed from the date it was initially ordered.
Authority:
PEN 1465.9(d)
People v. Kopp (2025) 19 Cal.5th 1, 24 [vacating unpaid balance of the restitution fine as required by Penal Code section 1465.9(d)]
People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted March 11, 2026, S295038 on a different issue
Second Holding:
When a prison term already in progress is modified as the result of an appellate sentence remand or resentencing, 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.
Authority:
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 29
People v. Sek (2022) 74 Cal.App.5th 657, 673
People v. Morgain (2009) 177 Cal.App.4th 454, 469 [a defendant is entitled to custody credit that includes the date of sentencing]
Third Holding:
While section 664 states that, in general, the punishment for an attempted crime is half that prescribed for the completed crime, that only applies where no other provision is made. Section 213(b) provides that the punishment for attempted robbery is punishable “by imprisonment in state prison.”
Under section 18, except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison.
Because section 213(b) specifically provides for the punishment of attempted second degree robbery, the appropriate triad terms for attempted second degree robbery offense are 16 months, two years, or three years.
Authority:
PEN 664
PEN 213(b)
PEN 18
People v. Moody (2002) 96 Cal.App.4th 987, 990
People v. Neely (2009) 176 Cal.App.4th 787, 797 [Section 213(b), when combined with section 18, provides that attempted second degree robbery is punishable by 16 months, two years, or three years in state prison.]