Tag Archives: Credit for time served

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001111

Posted on by Gary McCurdy

Error and/or relief

We vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate defendant’s custody credits and issue an amended abstract of judgment. The argument regarding imposition of the upper term is forfeited for lack of objection in the trial court.

First Holding:

Under California’s determinate sentencing law as it currently stands, excluding properly proven prior convictions or a defense stipulation, a jury finding is now required for all facts actually relied on to impose an upper term and a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapmanstandard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 757

Chapman v. California (1967) 386 U.S. 18

Second Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Scott (2015) 61 Cal.4th 363, 406

Third Holding:

Strong policy reasons support this forfeiture rule. It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2016) 63 Cal.4th 214, 239–240

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

Even constitutional claims may be forfeited if the issue is not raised below, and discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.

Absent a substantive change in the law that applies retroactively or an extenuating circumstance such as the futility of objecting under the then-governing substantive law, neither of which is at issue here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court during resentencing and then seeks to obtain appellate relief based on an asserted sentencing error that could have been raised at the time of sentencing.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887-888, fn. 7

People v. Salazar (2023) 15 Cal.5th 416, 431–432

People v. Stamps (2020) 9 Cal.5th 685, 698–699

People v. Perez (2020) 9 Cal.5th 1, 7–8

People v. Brooks (2017) 3 Cal.5th 1, 92

People v. Scott (1994) 9 Cal.4th 331, 356 [complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal]

Fifth Holding:

The restitution fine imposed in 2002 must be vacated under section 1465.9(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

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626–627

Sixth Holding:

When a prison term already in progress is modified as the result of an appellate sentence remand, 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.

We remand for the court to determine the appropriate credit for time served.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody credits correctly calculated]

(Gary note: The court quoted Buckhalter language that did not involve determination of credit for time served up to the original date of sentence. Thus, it is not uncommon to see language citing Buckhalter to mention the actual days in custody, with no mention of conduct time earned under section 4019 prior to the original sentencing. Buckhalter was concerned only with the time between the original sentencing and the resentencing.

(If you are looking for authority regarding recitation of the conduct credits earned prior to the initial sentencing, you may wish to review Sek, which the Court of Appeal did not cite in this case. I do think, however, that it would be valuable to examine the authority Sek relied on for its conclusion that the court must calculate the defendant’s conduct credit earned prior to his original sentencing.)

People v. Sek (2022) 74 Cal.App.5th 657, 673

Amelioration, Fines and fees, Sentencing

Case 001107

Posted on by Gary McCurdy

Error and/or relief

At defendant’s resentencing hearing under section 1172.75, the court should have recalculated his credit for time served. The reimposed restitution fine should have been stricken, as it was imposed more than 10 years earlier.

First Holding:

The court failed to update the defendant’s credit for time served as of his resentencing. We remand for that purpose.

Authority:

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

People v. Montalvo (1982) 128 Cal.App.3d 57, 62

Second Holding:

The restitution fine imposed in 2013 should be stricken as it is more than 10 years old. Section 1465.9(d), effective January 1, 2025, states 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. On remand, the court must vacate that order.

Authority:

PEN 1465.9(d)

Amelioration, Duty of the court, Sentencing

Case 001098

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.6, the court may have erred in reimposing criminal gang activity enhancement without examining whether it meets the requirements of section 186.22 as amended by AB 333.

The briefing submitted in conjunction with the ruling on the section 1172.6 proceedings does not adequately address whether the application of AB 333 is retroactive where section 1170.6 is invoked. The matter is remanded for resentencing and the parties may address the question of retroactivity of AB 333 in the superior court proceedings.

First Holding:

When the middle term is applied, appellate courts have held that the plain language and statutory context of section 1170(b) are clear the Legislature did not intend to impose evidentiary or proof requirements or restrictions on the imposition of a middle term sentence.

Authority:

People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1223

Second Holding:

AB 333 applies retroactively to nonfinal judgments. Application of AB 333 here essentially increases the probability defendant’s gang enhancement, imposed prior to the effective date of AB 333, is not supported by substantial evidence.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392

People v. Rojas (2023) 15 Cal.5th 561, 566–567 [Assembly Bill 333 narrowed the definitions of criminal street gang, pattern of criminal activity, and common benefit to a street gang]

Third Holding:

While section 1172.6 clearly provides the unusual remedy of challenging certain final convictions of murder, attempted murder, and manslaughter convictions, and clearly provides that the sentence on all counts (including those other than the murder, attempted murder, and manslaughter convictions) must be based on present law, it is not immediately clear where in the statute the Legislature provided the unusual remedy of challenging all of the petitioner’s other convictions.

The defendant does cite toTrent for the proposition that a defendant is entitled to retroactive application of ameliorative laws after a successful petition under section 1172.6. But the fact that AB 333 applies to nonfinal judgments is clear and undisputed. The question is whether these particular proceedings (i.e., sec. 1172.6) allow for challenges to the convictions (rather than challenges to the prior sentence made at resentencing) on counts or enhancements other than murder, attempted murder, or manslaughter.

Authority:

PEN 1172.6(d)(3)

People v. Trent (2025) 112 Cal.App.5th 251

Fourth Holding:

On remand, the trial court must award defendant 55 days of presentence conduct credits. The Attorney General concedes this issue and we accept the concession.

(Gary note: The court cited no authority for its directive to award presentence conduct credits, undoubtedly because the law is well settled. For your convenience, I have listed authority below that the court could have relied on.)

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

ADD AUTHORITIES HERE

Duty of the court, Sentencing

Case 001097

Posted on by Gary McCurdy

Error and/or relief

Following resentencing under section 1172.75, the court erred in not recalculating the defendant’s credit for time served.

Holding:

The trial court must calculate actual custody credits and include any such credits in the new amended abstract of judgment. Time served in custody shall be credited at resentencing when a judgment is subsequently declared invalid or is modified during the term of imprisonment. It is the duty of the court imposing the sentence to determine the total number of days to be credited.

When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Garner (2016) 244 Cal.App.4th 1113, 1118 [a judgment must include a custody credit award that includes time spent in prison prior to the resentencing hearing leading to this appeal]

Abstracts and Minutes, Discretion, Sentencing, Standard of review

Case 001074

Posted on by Gary McCurdy

Error and/or relief

The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.

The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.

The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.

Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.

First Holding:

Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171

Second Holding:

Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council 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.

Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.

The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

Authority:

PEN 1172.1

Third Holding:

We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1175

People v. Olea (2025) 115 Cal.App.5th 889, 902–903

Fourth Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1171

Fifth Holding:

Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.

Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.

Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.

The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]

People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175

People v. Olea (2025) 115 Cal.App.5th 889, 901-902

Sixth Holding:

The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.

Authority:

PEN 1172.1(a)(3)(B)

People v. Mendoza (2022) 74 Cal.App.5th 843, 856

Seventh Holding:

The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states 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 11465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903

Eighth Holding:

The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]

People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]