The amount of credit for time served was short by three days. The judgment is modified to include those three days.
The appellate court has authority to modify the judgment to correct the credit for time served.
People v. Jones (2000) 82 Cal.App.4th 485, 493–494 [modifying judgment to correct custody credits]
The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.
Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.
PEN 1385
People v. Rogers (2025) 108 Cal.App.5th 340, 362
People v. Superior Court (Romero) (1996) 13 Cal.4th 497
The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.
People v. Valenzuela (2019) 7 Cal.5th 415, 424-425
Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.
People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854
We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.
People v. Carmony (2004) 33 Cal.4th 367, 377-378
Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.
People v. Buckhalter (2001) 26 Cal.4th 20, 41
On resentencing, it was error to increase the originally-imposed $300 restitution fine to $10,000.00. It was also error to fail to recalculate the defendant’s credit for time served.
Although defendant arguably has forfeited the claim of error because he did not object to the sentence below, we will reach the issue because he also contends his attorney was ineffective.
People v. Daniels (2012) 208 Cal.App.4th 29, 31
When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. Statutorily mandated restitution fines constitute punishment and there is no principled basis for excluding them from the rationale of Henderson. The restitution fine imposed pursuant to section 1202.4(b) cannot exceed the $300 originally imposed. Therefore, we remand the matter and direct the trial court to reduce the restitution fine to $300, as originally assessed.
People v. Henderson (1963) 60 Cal.2d 482
People v. Jones (1994) 24 Cal.App.4th 1780, 1783, 1785
People v. Hanson (2000) 23 Cal.4th 355, 357
People v. Daniels (2012) 208 Cal.App.4th 29, 31-32
People v. Thompson (1998) 61 Cal.App.4th 1269, 1276 [court directed trial court to reduce increased section 1202.4 fine to amount originally assessed]
A restitution fine under section 1202.4 constitutes punishment. It is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. For felony convictions, the required fine is not less than $300 and not more than $10,000.
People v. Kopp (2025) 19 Cal.5th 1, 13
When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. As the trial court failed to recalculate the credit for time served, the matter must be remanded for the custody credits to be recalculated.
People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]
The trial court erred in determining that the defendant was ineligible for resentencing under section 1172.75 where the now invalid prior conviction enhancement had been stricken at the original sentencing.
Legislation effective at the beginning of 2020 (SB 136) prospectively abolished most prior prison enhancements that were previously imposed under section 667.5(b). Our Legislature made that abolition retroactive in 2022 through SB 483, which enacted section 1171.1, later renumbered as section 1172.75. The statute declares invalid most prior prison enhancements imposed before the enhancements were abolished, with just one exception (defendants convicted of sexually violent offenses).
PEN 1172.75
Section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. If the enhancement is no longer authorized under the current version of section 667.5(b), section 1172.75(a) renders the enhancement invalid. And the retroactive invalidation of the previously imposed enhancements in turn mandates resentencing under section 1172.75, according to the procedures set forth therein.
People v. Rhodius (2025) 17 Cal.5th 1050, 1068
Upon resentencing, the court will be required to calculate all credits Hernandez has accrued since his initial sentencing and award them against his new sentence.
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.]
On resentencing under section 1172.75, the court must recaculate credits for time served.
Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32
People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]