Tag Archives: Credit for time served

Duty of the court, Sentencing

Case 000902

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the trial court erred in not awarding custody credits.

Holding:

At the resentencing hearing following remand in the defendant’s prior appeal, the court did not award any custody credits, but instead stated that the Department of Corrections and Rehabilitation would determine them. The trial court erred and that defendant should be awarded actual custody credits, calculated from his initial arrest date to the date of the resentencing hearing.

The court should also consider whether the defendant, in light of our vacating of his conviction for attempted murder in his first appeal and the People declining to retry him, is entitled to presentence conduct credits pursuant to section 4019 and, if so, to calculate those credits.

Authority:

PEN 2900.1

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

Abstracts and Minutes, Sentencing, Standard of review, Statutory interpretation

Case 000900

Posted on by Gary McCurdy

Error and/or relief

The court erred in failing to award pretrial credit for time served on several of the counts for which a determinate sentence was imposed. The abstract of judgment must be corrected as it incorrectly describes findings by the jury as enhancements.

First Holding:

We review de novo the application of section 2900.5 to the defendant’s sentence. We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

Authority:

People v. Cofer (2026) 20 Cal.5th 1, 12

Second Holding:

Under section 2900.5, defendants who serve time in custody prior to their sentencing “receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction.

Section 2900.5(b) states in relevant part, that for the purposes of this section credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

That language does no more than clarify that when consecutive terms are imposed for multiple offenses in a single proceeding, only one of the terms shall receive credit for presentence custody. Thus, if sentences are imposed consecutively in a single proceeding, dual credits are expressly prohibited by statute.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9

Third Holding:

Section 669(a) provides that whenever a person is committed to prison on a life sentence that is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first.

Authority:

PEN 669(a)

Fourth Holding:

Three separate sentencing schemes governed the defendant’s sentencing. For his conviction for murder (count 1), his indeterminate sentence was dictated by sections 190 and 190.2(a).

For his convictions for rape in concert (count 3) and oral copulation in concert (count 4), his indeterminate sentences were supplied by the One Strike law.

His determinate sentences for counts 2, 5, 6, 7, 8, 9, and 10 were governed by sections 1170 and 1170.1. As the determinate sentences must be served first, the credit for time served should have been applied against the total term imposed for all seven of the determinate components of the sentence, and the court erred in failing to award credits against that part of the determinate sentence that applied to three of the counts.

He is entitled to no presentence custody against the remaining indeterminate sentences, as they were imposed consecutively.

Authority:

PEN 190

PEN 190.2

PEN 667.61(c)

PEN 669(a)

PEN 1170.1

PEN 2900.5

In re Vaquera (2024) 15 Cal.5th 706, 724 [The trial court must impose a One Strike sentence when a One Strike allegation is properly pled and proved.]

Fifth Holding:

The abstract of judgment is in error in describing the jury’s true findings under sections 190.2(d) and 667.61 as sentencing “enhancements.” The jury’s true findings pursuant to sections 190.2(d) and 667.61 are penalty provisions that exposed the defendant to greater punishment than would be authorized by a verdict on the underlying offense alone; they were not sentencing enhancements. They should not be so described in the abstract of judgment.

We will direct the trial court to delete the entries under “enhancements” in part 2 of the defendant’s indeterminate abstract of judgment.

(Gary note: The court did not cite authority for its directive that the abstract of judgment be corrected. I have listed several below (beginning with Mitchell) on which the court could have relied.)

Authority:

People v. Boswell (2016) 4 Cal.App.5th 55, 60


People v. Acosta (2002) 29 Cal.4th 105, 117
.

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 000889

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

A defendant is entitled to actual custody credit for ‘all days of custody’ in county jail and residential treatment facilities, including partial days. He is also entitled to conduct credits at a rate of 50 percent of actual time served.

But, if the defendant’s offense is statutorily defined as violent, section 2933.1(c) limits the presentence conduct credit to 15 percent of actual time served before sentencing.

The defendant was convicted of rape, a violent felony under section 667.5(c)(3). He is therefore entitled to a 15 percent presentence conduct credit. The trial court correctly awarded him 101 days of actual custody credit but only awarded him 14 days, rather than 15 days, of presentence conduct credit Accordingly, the abstract of judgment should be corrected to reflect one additional day of conduct credit.

Authority:

PEN 2900.5

PEN 4019

PEN 2933.1

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

People v. Nunez (2008) 167 Cal.App.4th 761, 764

Duty of the court, Fines and fees, Juveniles, Retroactivity

Case 000861

Posted on by Gary McCurdy

Error and/or relief

The juvenile court did not declare on the record that either of the minor’s two aggravated assault offenses was a felony or a misdemeanor, as required by Welfare and Institutions Code section 702

Section 730.6 requires that the restitution fines imposed must be stricken.

The precommitment credits must be corrected.

First Holding:

Section 702 provides, in part, that when a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Section 702 requires the juvenile court to declare on the record at a hearing ‘before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Second Holding:

A section 702 error is not harmless unless the record shows that the juvenile court was aware of, and exercised its discretion as to each wobbler alleged against the minor. The key issue under this standard is whether the juvenile court was aware of its discretion under section 702.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 712, 717

Third Holding:

This section 702 error was not harmless. Signed minute orders in the two assault cases stated, “Pursuant to Juvenile Court Rule 5.795(a), the court finds the offense to be a Felony as to count 1.”

This language tracks recommendations in a memorandum probation filed for disposition. However, rule 5.795(a) states that for any wobbler, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony.

The court’s failure to comply with the very rule cited undermines any inference that it was aware of its discretion.

Authority:

Cal. Rules of Court, rule 5.795(a)

Fourth Holding:

The juvenile court imposed three $200 restitution fines. Effective January 1, 2025, AB 1186 (2023-2024 Reg. Sess.) amended section 730.6 to remove the requirement that a minor pay a restitution fine.  The relevant portion of the statute now provides: “The court shall not impose a separate and additional restitution fine against a minor found to be a person described in section 602.”

Appellant is entitled to the ameliorative benefit of this amendment.

Authority:

WIC 730.6(a)(2)

In re Estrada (1965) 63 Cal.2d 740, 745-746

Fifth Holding:

The court erred in calculating the credit for time served, awarding the minor less than half the more than 450 days the minor was entitled to. A minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing.

When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions the court must also aggregate the predisposition custody credits attributable to those multiple petitions.

Authority:

In re A.M. (2014) 225 Cal.App.4th 1075, 1085-1086

Sixth Holding:

Section 628.2(c) provides that a minor shall be entitled to have one day credited against the minor’s maximum term of confinement for each day, or fraction thereof, that the minor serves on electronic monitoring. The provision of custody credits pursuant to this subdivision shall apply to custody credits earned beginning January 1, 2023.

Because the minor was on electronic monitoring after January 1, 2023, he is entitled to credits for that time.

Authority:

WIC 628.2(c)

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000856

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a hearing on the petition for resentencing under section 1172.75. Because the trial court did not orally pronounce sentence on defendant’s conviction, impose the mandatory parole revocation fine, or calculate credits for time served, we remand the matter for full resentencing. On remand, the trial court is directed to orally impose judgment; determine what the amount of the restitution fine would have been so it can impose, then stay, the parole revocation fine in a proper amount, and calculate credit for time served.

First Holding:

Our review of the record reveals the court did not orally pronounce judgment. Accordingly, we must remand the matter for a full resentencing. The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand, as is the failure to impose a parole revocation fine required by section 1202.45. Because an unauthorized sentence is a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal, we raise the issue even though neither party has addressed it.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411 fn. 6

People v. Terrell (1999) 69 Cal.App.4th 1246, 1255

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

Because the trial court’s recall of defendant’s sentence pursuant to section 1172.75(c) vacated that sentence, the trial court was required to conduct a full resentencing. While the court struck defendant’s now-invalid section 667.5(b) enhancements and ruled on his Romero motion, it did not orally pronounce judgment on defendant for his conviction for possessing cocaine. Nor did it orally reimpose the restitution fine or parole revocation fine or calculate actual custody credits. Because the trial court’s failure to orally pronounce judgment resulted in an unauthorized sentence, we remand for a full resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 360-361

Third Holding:

While the term of imprisonment, parole revocation fine, and actual custody credits are nevertheless listed in the minute order and abstract of judgment, the oral pronouncement of judgment controls over both.

Authority:

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

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

Fourth Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Fifth Holding:

Add Section 1465.9 bars reimposition of the restitution fine upon defendant. Because the restitution fine was originally imposed on defendant more than 10 years ago, the fine is uncollectable and unenforceable by operation of law.
blurb here

Authority:

PEN 1465.9(d)

People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 332

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart sec. 1465.9’s 10-year clock], review granted on a different issue Mar. 11, 2026, S295038

Sixth Holding:

Although section 1465.9(d) imposed a 10-year limit on the enforcement and collection of the restitution fine, it did not provide relief with respect to the parole revocation fine. Under section 1202.45 and Kopp that fine remains mandatory and must be set in the same amount as the court would have set for defendant’s restitution fine even though the restitution fine itself may no longer be reimposed.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Seventh Holding:

Finally, at resentencing, the trial court is required to credit the defendant with all actual days he had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

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

Discretion, Duty of the court, Fines and fees, Sentencing

Case 000849

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing held under section 1172.75, the resentencing court erred by (1) imposing consecutive sentences on the defendant’s attempted murder and felon in possession of a firearm counts because the court was unaware of its discretion to impose concurrent terms, (2) not recalculating custody credits, and (3) reimposing a restitution fine under section 1202.4.

First Holding:

When the Three Strikes law applies, sentences for current qualifying offenses must be ordered to run consecutively to each other if the current offenses occur on separate occasions and do not arise from the same set of operative facts.

Conversely, where a sentencing court determines that two or more current felony convictions were either committed on the same occasion or arise from the same set of operative facts, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.

Authority:

PEN 667(c)(6)

People v. Henderson (2022) 14 Cal.5th 34, 45

People v. Lawrence (2000) 24 Cal.4th 219, 233

Second Holding:

When the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

Authority:

People v. Brown (2007) 147 Cal.App.4th 1213, 1228

Third Holding:

The attempted murder and felon in possession of a firearm counts were based on the defendant’s possession and use of the same firearm. There is no suggestion that the defendant possessed more than one gun when he committed the offenses.

Because the attempted murder and felon in possession of a firearm counts arose from the same set of operative facts, the resentencing court had discretion to impose concurrent sentences. Remand for resentencing is appropriate as the court was unaware of its discretion, and there is no indication that had it been aware of its discretion, it would nevertheless have imposed consecutive terms.

Authority:

People v. Garcia (2008) 167 Cal.App.4th 1550, 1567

People v. Deloza (1998) 18 Cal.4th 585, 600

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a felony sentence is modified during the term of imprisonment, the trial court must recalculate and credit the actual time defendant had served on his sentence prior to the modification. Where 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. On remand, the resentencing court must recalculate the defendant’s custody credits for actual time served.

Authority:

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

Fifth Holding:

The restitution fine imposed under section 1202.4 must be vacated under section 1465.9. Effective January 1, 2025, section 1465.9 was amended to add subdivision (d), which provides that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Because the defendant’s restitution fine was imposed more than 10 years ago, any balance is unenforceable and uncollectable by operation of law. The fine must be vacated

Authority:

PEN 1465.9

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000847

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to award credit for the time the defendant served in custody. The court imposed a restitution fine that should have been vacated. The court imposed repealed fees. Remanded for the trial court to correct these errors, along with errors in the abstract of judgment.

First Holding:

Where 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.

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 credit must then be added to the abstract of judgment.

Here, the most recently amended abstract reflects no credit for time served. On remand, the trial court will need to recalculate the number of days the defendant spent in custody from the initial sentencing through the date of the resentencing and prepare an updated abstract of judgment.

The abstract of judgment must be corrected to reflect the correct date that the new sentence was pronounced at the resentencing hearing, not the date of the original sentencing.

Authority:

PEN 2900.1

PEN 2900.5

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

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

Second Holding:

The restitution fine imposed under section 1202.4 at the original sentencing in 2011 must be vacated. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

The trial court was not authorized to impose fees under former Government Code section 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. Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Fourth Holding:

We note a clerical error in the most recently amended abstract of judgment. The abstract includes a solitary numeral “1” in section 3 of the enhancements section. The numeral is listed without an identifying label and is not included in the aggregate sentence. Presumably, this numeral is left over from the prior prison term enhancement that was stricken by the trial court at resentencing and should be deleted. We will direct the trial court to correct the amended abstract of judgment by deleting this errant numeral.

(Gary note: The court did not cite any authority for its order directing correction of the abstract of judgment, but the law is clear that it has that authority. I have listed below some cases the court could have cited as authority.)

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

Abstracts and Minutes, Amelioration, Sentencing, Standard of review

Case 000846

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erred in failing to update the credit for time served. Remanded for the court to calculate the correct number of days and to correct the abstract of judgment that reflected the credit as of only the original sentence date.

First Holding:

The trial court incorrectly calculated his custody credit, and the abstract of judgment following the resentencing hearing does not reflect the actual days of custody credit as of the date of resentencing. We therefore remand the matter so the court may recalculate Smith’s actual days of custody credit and prepare an amended abstract of judgment.

Authority:

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

Second Holding:

(Gary note: The appellate court otherwise affirmed the sentence imposed on resentencing, but announced principles worthy of mention here, though they did not support any relief on appeal for this defendant.)

We review the trial court’s sentencing decisions for an abuse of discretion. We interpret relevant statutes and review claims of ineffective assistance of counsel de novo.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Mayfield (1993) 5 Cal.4th 142, 199

People v. Terwilligar (2025) 109 Cal.App.5th 585, 595

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Sentencing

Case 000844

Posted on by Gary McCurdy

Error and/or relief

A portion of the defendant’s presentence custody status was preconviction home detention. That period was sufficiently custodial to entitle the defendant to custody and conduct credits. The matter is remanded for the trial court to determine what portion of the defendant’s preconviction status met the statutory requirements for creditable home detention.

First Holding:

Preconviction custody credits are governed by section 2900.5(a), which provides in relevant part that in all felony and misdemeanor convictions, either by plea or by verdict, all days of custody of the defendant, including days served in home detention pursuant to section 1203.016 or 1203.018, shall be credited upon his or her term of imprisonment.

Authority:

PEN 2900.5(a)

People v. Gerson (2022) 80 Cal.App.5th 1067, 1087– 1088

Second Holding:

Section 1203.018 authorizes a county to offer a program under which inmates being held in lieu of bail in a county jail or other county correctional facility may participate in an electronic monitoring program if certain conditions are met. An electronic monitoring program is defined as including home detention programs. The statute authorizes the board of supervisors to prescribe reasonable rules and regulations under which an electronic monitoring program pursuant to this section may operate.

Authority:

PEN 1203.018

Third Holding:

When a defendant is subject to preconviction electronic monitoring conditions under terms that are as custodial, or restraining as a statutory home detention program pursuant to section 1203.018, equal protection principles entitle that defendant to preconviction custody credits under section 2900.5 and conduct credits under section 4019.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1089

Fourth Holding:

Whether a defendant is in custody for the purposes of section 2900.5 is a matter of statutory interpretation, a question of law we review de novo. The burden is on the accused to establish entitlement to presentence custody credit.

Authority:

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

People v. Shabazz (2003) 107 Cal.App.4th 1255, 1258

Abstracts and Minutes, Sentencing

Case 000840

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court awarded the incorrect number of days of credit.

Though the abstract of judgment lists the correct number of days, it does not correctly reflect the controlling oral pronouncement of judgment. The court must amend the final abstract of judgment after correcting the calculation of credit for time served.

First Holding:

At the conclusion of the resentencing hearing, the superior court awarded actual days that only reflected the number of actual days from the original sentencing date to the resentencing date. It did not include the number of days of original presentence actual credit. Additionally, the court did not indicate the original presentence local conduct credit.

On remand, the resentencing court must recalculate the actual time served to include the original presentence actual days in custody and the number of days in custody from the original sentencing to the resentencing.

The court must also indicate the presentence local conduct credit.

Authority:

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

Second Holding:

The most recent abstract of judgment reflects the original presentence credit, as well as the credit awarded at the resentencing. But the oral pronouncement controls when a discrepancy exists between it and the abstract of judgment. We direct the superior court to amend the final abstract of judgment upon correcting the errors we have described.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

Duty of the court, Fines and fees, Sentencing

Case 000835

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erroneously imposed an enhancement that had been vacated as a result of an earlier appeal. The court also erred by not recalculating the credit for time served through the date of the resentencing. Further, the restitution fine must be vacated, as it was imposed at least 10 years ago.

First 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, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody. The California Department of Corrections and Rehabilitation is responsible for calculating any postsentence custody credits.

Authority:

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

People v. Dean (2024) 99 Cal.App.5th 391, 397

Second Holding:

After 10 years have elapsed from the imposition of a restitution fine imposed under section 1202.4, any remaining balance is unenforceable and uncollectible. Any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9

Third Holding:

The trial court struck the six one-year prior prison terms but declined to otherwise modify the sentence. However, although this court had previously vacated the three-year term imposed on count 1 pursuant to section 12022.7,(a), in resentencing the defendant, the trial court again imposed the enhancement and three-year term. The parties agree this was error, as do we. The great bodily injury enhancement imposed as to count 1 must be stricken and the three-year term vacated.

(Gary note: The court cited no authority for its order striking the enhancement that had been stricken in the earlier appeal. The relief seems obvious enough. Under section 1260, “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

(If that doesn’t precisely address the issue, one could also look at Dutra, although it, too, is not exactly on point. It dealt with the trial court’s act of not complying with the instructions in the remittitur because of a change in the law, but the change did not permit it to act outside the direction of the remittitur. Again, not exactly what happened here.

(Or one could argue that imposing the enhancement resulted in an unauthorized sentence (again), which can be corrected whenever the matter is before the court. See, for example, Sanders.

(It just seems so intuitive that the trial court, on resentencing, could not reimpose an enhancement that was stricken as unlawful in the earlier appeal. I’m not surprised the appellate court did not see a need to cite authority, particularly where the parties both agreed on the error and remedy. The authorities I have listed below were not cited by the court, and the two cases are fairly distinguishable from this situation, but might prove interesting reading nonetheless.)

Authority:

PEN 1260

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13