Tag Archives: Credit for time served

Duty of the court, Sentencing

Case: 000227

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court erred in its calculation of his custody credits. The court awarded custody credit of 461 days, the amount of custody credit listed on the defendant’s original abstract of judgment from 2012. The matter is remanded to the trial court to recalculate the defendant’s custody credits; the court shall amend the abstract of judgment accordingly.

Holding:

When a prison term already in progress is modified, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. As stated in section 2900.5, it is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to that section. The total number of days to be credited shall be contained in the abstract of judgment provided for in section 1213.

Authority:

PEN 2900.5

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

People v. Dean (2024) 99 Cal.App.5th 391, 396 [resentencing courts must recalculate actual time served]

Abstracts and Minutes, Sentencing

Case: 000222

Posted on by Gary McCurdy

Error and/or relief

On appeal from resentencing under section 1172.75, the sole contention is that the trial court omitted updating his abstract of judgment with credit for time served as of the date he was resentenced. The case is remanded for the necessary credits correction and amendment of the abstract of judgment to reflect those credits.

Holding:

Absent a new sentence, the court left in place its 2023 amended abstract of judgment, with the same actual-days credit calculation as had been entered at defendant’s original 2015 sentencing. That calculation must be updated.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40

Sentencing

Case: 000209

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in recalculating the defendant’s custody credits. It stated that he spent four days in custody and earned two days of conduct credit. The court, however, awarded only four days. The matter is remanded for recalculation of presentence custody credits. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

Holding:

Under section 4019(e), a defendant begins to earn conduct credits after being committed for a period of four days or longer. Here, the defendant was in custody for four days and was therefore entitled to two days of conduct credit.

Authority:

PEN 4019

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000208

Posted on by Gary McCurdy

Error and/or relief

The trial court resentenced defendant the defendant pursuant to Penal Code section 1172.75. The court failed to award credit for the time the defendant served in custody. The court imposed repealed fees. The resentencing minute order should be clarified to reflect the proper order in which the defendant must serve the terms comprising his sentence. The matter is remanded to the trial court with directions to recalculate defendant’s custody credits and to prepare a corrected abstract of judgment and minute order as indicated in this opinion and forward a certified copy of the corrected abstract and minute order to the Department of Corrections and Rehabilitation.

First Holding:

Were a defendant has served any portion of his 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 he may receive upon a new commitment for the same criminal act or acts. This means a court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credits must then be added to the abstract of judgment.

Authority:

PC 2900.1

PC 2900.5

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130

Couzens et al., Sentencing California Crimes (The Rutter Group Aug. 2025 update) secs. 15:15, 15:20, 15:24, 26:6

Second Holding:

The trial court was not authorized to impose fees under former Government Code section 29550.2. (Former Gov. Code, sec. 29550.2.) The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Third Holding:

Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first. The minute order for the resentencing hearing states that the determinate is to be served consecutive to the indeterminate sentence. The minute order must be corrected.

[Gary note: The court did not cite any authority for its order to correct the minute order. But there is much authority allowing a court to correct errors in abstracts of judgments and minute orders. I have set forth a few below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing

Case: 000205

Posted on by Gary McCurdy

Error and/or relief

We agree that the defendant deserves an additional day of presentence custody credits but otherwise affirm.

Holding:

The parties miscalculated his presentence credits by a day. The defendant’s presentence credits should have included both the date of his arrest and of his sentencing hearing.

Authority:

PEN sec. 2900.5(a)

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 [Calculation of custody credit begins on the day of arrest and continues through the day of sentencing.]