Tag Archives: Credit for time served

Duty of the court, Sentencing

Case 000090

Posted on by Gary McCurdy

Error and/or relief

Remand for resentencing is required because (1) the trial court erred by failing to impose and then stay execution of the sentence on the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a); and (2) the trial court erred in failing to resentence the defendant to a single aggregate term of imprisonment for this case and another case for which he is serving a term of 24 years. We accept the People’s concession and remand the matter for resentencing.

First Holding:

At sentencing, the trial court did not orally pronounce a sentence for the infliction of great bodily injury enhancement. The matter is accordingly remanded for the trial court to impose and stay execution of the three-year sentence on the Penal Code section 12022.7(a) enhancement.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130

Second Holding:

When a defendant is convicted of multiple crimes in different cases and a consecutive term of imprisonment is imposed, the aggregate term for those cases is the sum of the principal term and subordinate term. In this instance, the trial court did not impose a single aggregated term. We will therefore remand for the trial court to do so.

Authority:

PEN 1170.1

Rules of Court, rule 4.452 [setting forth the procedure for imposing consecutive sentencing under PC 1170.1]

Third Holding:

During resentencing, the trial court shall award the appropriate custody credits for the aggregate term. [Gary note: the court cited no authority on the recalculation of credits, likely because the error is so obvious. But I have listed the statute and a leading case below.]

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37 [Having modified defendant’s sentence on remand, the court was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time]

Abstracts and Minutes

Case 000079

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. The abstract of judgment must be corrected to reflet the credit for time served orally pronounced.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Sentencing

Case 000065

Posted on by Gary McCurdy

Error and/or relief

When appellant was resentenced in 2024, the trial court did not update his actual custody credit. We agree with the parties that this was error. We remand this matter for the trial court to calculate and update appellant’s actual custody credit.

Holding:

Whenever a trial court resentences a defendant, the court must recalculate all actual time the defendant has already served in prison. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

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

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125 [Gary note: Phoenix is interesting in that it held that when a court is resentencing a defendant on cases inolving more than one county–e.g., running the home county’s sentence consecutive to or concurrent with a sentence imposed in another county–it is the duty of that home county court to calculate all the credits earned in all the cases, including any in another county.]

Sentencing

Case 000036

Posted on by Gary McCurdy

Error and/or relief

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.

Authority:

PEN 2900.5(d)

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

Second Holding:

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:

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

Gary Musings, Trivia by Gary

Trivia by Gary 6/4/2026

Posted on by Gary McCurdy

Trivia by Gary June 4, 2026

I’m pretty sure most of us know that a person who serves any time in jail up through sentencing gets credit for that pre-sentence time, assuming it’s attibutable to the reason the person is in jail. Prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971.

It was originally to be applied prospectively only, but that was held to violate equal protection guarantees.

Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released.

Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.”

Alas, that restriction is nowhere to be found today.