Tag Archives: Credit for time served

Elements of crime, Sentencing, Standard of review, Statutory interpretation

Case: 000253

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the defendant’s perjury conviction. We reverse the perjury conviction. His excess presentence custody credits must be applied to reduce his parole period. The record does not permit a determination of the precise number of excess custody credits. Because we are remanding for resentencing, we direct the trial court to calculate and determine the appropriate application of those credits.

First Holding:

A conviction under section 118(a) requires proof that the challenged statement was made under penalty of perjury, and that the sex offender registration form signed by the defendant did not contain such a declaration. Because the statutory element was not established, reversal is required.

Authority:

PEN 118(a)

Second Holding:

When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting that review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Reversal for insufficient evidence is warranted only where it appears that, under no hypothesis whatsoever, is there sufficient evidence to support the verdict.

Authority:

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Section 118(a) provides that a person commits perjury when he or she certifies under penalty of perjury and willfully states as true any material matter that he or she knows to be false. Proof that the false statement was made under penalty of perjury is therefore an essential element of the offense. Here, the Criminal Justice Information System (CJIS) Form 8102S signed by the defendant states: “I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense.” The form does not state that the certification is made under penalty of perjury. Because the prosecution failed to establish this essential statutory element, the evidence is insufficient to support the defendant’s conviction for perjury under section 118(a). Accordingly, the conviction on that count must be reversed, and the matter remanded for resentencing.

Authority:

People v. Tafoya (2025) 109 Cal.App.5th 868, 902

Fourth Holding:

Section 2900.5 requires that all days a defendant spends in custody—including time in jail or a rehabilitation facility—be credited against the defendant’s term of imprisonment, which expressly includes any period of parole prior to discharge. By the time the defendant was sentenced, he had already served enough days in custody to qualify for release on parole.

Authority:

PEN 2900.5

In re Ballard (1981) 115 Cal.App.3d 647, 650

Fifth Holding:

The parties and trial court disagreed on how to calculate the time expected to complete a 16-month term against which the known number of days in custody would apply, but approaches proposed are flawed. Section 7(b)(13) defines a “month” as a “calendar month.” A calendar month is not a fixed number of days, but rather the space of time from any day of any such month to the corresponding day of the next, and may therefore vary in length. Consequently, a sentence expressed in months cannot be converted into a predetermined number of days by multiplying months by 30, nor by fractionalizing a year into parts. Instead, the proper calculation depends on the defendant’s actual dates of incarceration and release. Because the record does not disclose the precise date of the defendant’s incarceration, we cannot determine the exact number of days constituting his 16-month term. Accordingly, this issue must be remanded for the trial court to calculate his sentence based on his actual custodial dates and to apply any excess custody credits to reduce his parole period as required by section 2900.5

Authority:

PEN 7(b)(13)

In re Kemper (1980) 112 Cal.App.3d 434, 439, fn. 2

People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 414, fn. 23 [a three-month statutory period may range from 89 to 92 days depending on the specific dates involved]

Due process, Sentencing

Case: 000248

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
At the resentencing hearing ordered as result of a the prior appeal, the trial court erred by resentencing the defendant without his personal presence, failing to conduct a full resentencing, and miscalculating his credits for time served.

[Gary note: the opinion indicates that the abstract following the remand was incorrect, that an amended abstract filed thereafter was incorrect in other respects, and a new amended abstract contained several errors–including in the minute order that the defendant had waived his presence, yet there was nothing in the reporter’s transcripts to indicate he had waived his presence. I reiterate a comment I made in an earlier post: Counsel really should examine the abstracts of judgment carefully, whether the defendant was the client at the trial level or at the appellate level.]

First Holding:

A defendant has a constitutional right to be present at all critical stages of the criminal prosecution, i.e., all stages of the trial where his absence might frustrate the fairness of the proceedings. The defendant’s right to be present includes at a resentencing hearing.

Authority:

People v. Rodriguez (1998) 17 Cal.4th 253, 260 [right to presence following remand to consider dismissing strike]

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Second Holding:

Section 977 requires that a felony defendant shall be physically present at the time of the imposition of sentence. It allows a defendant to waive their physical presence only for other proceedings.

Authority:

PEN 977(b)(1)

Third Holding:

Notwithstanding section 977, waiver of personal appearance at felony sentencing is permitted by section 1193 if the defendant, in open court and on the record or in a notarized writing, requests that judgment be pronounced against the defendant in his or her absence. This provision applies to resentencing following an appellate court remand. But the defendant did not waive his right to be present at sentencing in open court or by a notarized writing. Accordingly, the trial court erred when it resentenced him without his personal presence.

Authority:

PEN 977(b)(1)

People v. Cutting (2019) 42 Cal.App.5th 344, 345-346

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414

Fourth Holding:

At the resentencing, the trial court failed to update the defendant’s custody credits. The amended abstract must include credit for actual days in custody after the original sentencing until the date of resentencing. On remand, the trial court must calculate the actual time in prison; the determination of prison conduct credits is left to the prison administration

Authority:

People v. Sanchez (2016) 245 Cal.App.4th 1409, 1418

People v. Honea (1997) 57 Cal.App.4th 842, 845, disapproved on other grounds in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.

Fifth Holding:

When part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Sixth Holding:

Although we concluded in the first appeal that the trial court did not abuse its discretion when it denied the motion to dismiss the strike pursuant to Romero, supra, 13 Cal.4th 497, the trial court on resentencing had jurisdiction to reconsider that ruling.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 364

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rodriguez (1998) 17 Cal.4th 253, 260

Sentencing

Case: 000246

Posted on by Gary McCurdy

Error and/or relief

Though not entitled to conduct credits because he was convicted under the One Strike Law, the defendant was entitled to credit for actual time in custody. The matter is remanded for the court to determine and award the length of time he was in custody.

First Holding:

The defendant is entitled to presentence custody credits. As there appears to be a factual discrepancy regarding the date of his arrest, we remand this issue to the trial court for a determination of the appropriate amount of presentence custody credit

Authority:

PEN 2900.5

People v. Ravaux (2006) 142 Cal.App.4th 914, 919

People v. Fares (1993) 16 Cal.App.4th 954, 958

Second Holding:

A person sentenced under the One Strike Law (section 667.61) is not entitled to pre-sentence conduct credit.

Authority:

People v. Adams (2018) 28 Cal.App.5th 170, 182

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

People v. Dearborne (2019) 34 Cal.App.5th 250, 267–268

Amelioration, Duty of the court, Sentencing

Case: 000242

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to update the credits for time served, and awarded only the credits allowed at the original sentencing 12 years earlier. This was error, and the matter is remanded for the trial court to recalculate the proper credits as of the date of the resentencing hearing.

Holding:

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.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 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]

Discretion, Sentencing, Standard of review

Case: 000230

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on the recall of his sentence under section 1172.75, the court failed to recalculate his custody credits upon resentencing. We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.

First Holding:

Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. When a defendant is imprisoned and later resentenced, 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 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37

Second Holding:

We review a trial court’s decision not to strike a prior felony conviction for abuse of discretion. It is the defendant’s burden on appeal to show that the sentencing decision was irrational or arbitrary. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. In addition, we will not reverse a trial court’s sentencing decision merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371, 376-377