Tag Archives: Credit for time served

Case 000492

Error and/or relief

On resentencing, the court must recalculate the credit for time served. The matter is remanded for the court to do so here. (The matter was complicated by the trial court awarding credit against this case for by credit earned in a separate case, making it difficult to determine how much the court credited in this particular case.)

Holding:

When a trial court resentences a defendant who is currently in custody, it must credit him with all actual days he spent in custody (whether in jail or prison) up to that time, including his time in custody after the original sentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Case 000484

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

People v. Zachery (2007) 147 Cal.App.4th 380, 385

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Case 000475

Error and/or relief

We remand to the trial court with directions to clarify its section 654 findings for count 3 (false imprisonment). If the trial court clarifies on remand that section 654 applies, we direct it to modify the judgment to stay the sentence for count 3 and amend the abstract of judgment accordingly. We also direct the court to correct the determination of credit for time served.

First Holding:

Section 654’s applicability is reviewable on appeal even if, as here, the issue was not raised with the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. In the absence of any reference to PC 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective subject to substantial evidence review.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Tarris (2009) 180 Cal.App.4th 612, 626

Third Holding:

The court made comments suggesting a section 654 stay applied to the false imprisonment term at the original sentencing but was silent on the matter at resentencing. The trial court originally sentenced the defendant to a total prison term of more than 20 years. At the sentencing hearing, the court said it would impose and stay the middle-term sentence for count 3 (false imprisonment) primarily based on the fact that all of these facts are essentially running together, that there was some overlap with the other counts, as it viewed the false imprisonment as being somewhat encapsulated in the rape, witness intimidation, and domestic violence.

A few months later, the court recalled the sentence, believing the defendant had been given too harsh a sentence, and resentenced the defendant to nearly five years less. At that resentencing hearing, there was no mention of the applicability of section 654. In light of the uncertainty regarding what the trial court intended regarding a finding under section 654, it appears appropriate under these circumstances to remand the matter to permit the trial court to clarify.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 839

Fourth Holding:

The defendant is entitled to one day additional credit, because the correct calculation must include the date of arrest. Further, it is the trial court’s responsibility to calculate all credit for time served through the date of the resentencing, and the duty cannot be delegated to the custodial facility personnel.

Authority:

eople v. Kennedy (2012) 209 Cal.App.4th 385, 394

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Case 000470

Error and/or relief

The abstract of judgment must be amended to make clear the trial court found an inability to pay fees and fines, and to provide the correct number of prejudgment credit days.

First Holding:

At sentencing, the trial court found that the defendant did not have the ability to pay the court fees. The abstract of judgment, however, imposes a court security fee of $200 and a criminal conviction assessment of $150. We will direct the trial court to amend the abstract of judgment accordingly.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 10

Second Holding:

Based on counsel’s representations, the court awarded credit for actual days served that was 30 days less than he actually served. Therefore, the court’s minute order should be corrected to reflect the proper number of credit days, and the abstract of judgment should be amended accordingly.

[GARY NOTE: The court did not cite any authority for this correction, but there is plenty. I have listed authority the court could have cited.]

Authority:

PEN 2900.5

People v. Chilleli (2014) 225 Cal.App.4th 581, 591 [The failure to properly calculate custody and conduct credit is a jurisdictional error that can be corrected at any time]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Case 000450

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

People v. Coddington (2023) 96 Cal.App.5th 562, 568 [same]

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]