The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.
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.
People v. Mitchell (2001) 26 Cal.4th 181, 185-186
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.
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.
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.]
We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment.
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.
PEN 2900.5(d)
People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37
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.
People v. Buckhalter (2001) 26 Cal.4th 20, 29
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.
After the passage of Senate Bill No. 483 (2021-2022 Reg. Sess.), the court held a resentencing hearing at which it recalled defendant’s sentence, struck the prison prior enhancement, sentenced defendant to a term of 24 years, and set the matter for further resentencing. At the subsequent hearing, the court denied defendant’s motion to strike his 10-year gang enhancement, finding that granting it would endanger public safety. On appeal, defendant asserts the court erred in failing to conduct a full resentencing — specifically, that it did not consider Assembly Bill No. 333’s impact on his sentence. He also claims the court erred by considering his current dangerousness, rather than his future dangerousness upon release, and by not recalculating his custody credits at resentencing. The People concede that the matter should be remanded for a full resentencing and that defendant’s credits should be recalculated.
The matter must be remanded for a full resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.
PEN 1172.75
People v. Monroe (2022) 85 Cal.App.5th 393, 402
People v. Buycks (2018) 5 Cal.5th 857, 893 [the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall]
Amendments made by Assembly Bill 333 regarding elements constituting gang misconduct applied retroactively.
People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
In re Estrada (1965) 63 Cal.2d 740
People v. Burgos (2024) 16 Cal.5th 1, 28
If the court determines the gang enhancement must be vacated, the People must be given the opportunity to retry the gang enhancement in compliance with the amendments brought about by Assembly Bill 333. The Double Jeopardy Clause does not bar retrial of a defendant whose conviction is set aside because of an error in the proceedings leading to conviction. If the People choose to retry it, the trial court is directed to conduct a full resentencing after that issue has been decided.
People v. Tran (2022) 13 Cal.5th 1169, 1207
People v. Sek (2022) 74 Cal.App.5th 657, 669
United States v. Tateo (1964) 377 U.S. 463, 465
If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37, 41
The trial court miscalculated the credit for time served. We will therefore modify his presentence credit award.. The defendant was granted one additional day of actual custody credit.
PEN 2900.5
People v. Rajanayagam (2012) 211 Cal.App.3d 42, 48
People v. Bravo (1990) 219 Cal.App.3d 729, 735
The trial court erred in calculating defendant’s custody credits. Because he participated in the sober living program pursuant to a court order, he is entitled to custody credit for the time he spent there. The People concede this issue. We agree with the parties.
Credit for time served that is miscalculated must be corrected.
PEN 2900.5(a)
Involuntary time in treatment counts as credit for time served when attributable to the criminal proceedings.
People v. Davis (2023) 87 Cal.App.5th 771, 777 [Section 2900.5 has two components: First, that the placement be custodial, and second, that the custody be attributable to the proceedings relating to the same conduct for which defendant has been convicted]
People v. Billy (2024) 107 Cal.App.5th 246, 262-264, [Defendant’s voluntary stay at a rehabilitation facility did not qualify for custody credit under section 2900.5]
The restitution fine must be vacated because it was originally imposed more than 10 years ago. The court must calculate the actual time the defendant has already served and credit that against the subsequent sentence.
Restitution fines are uncollectible after 10 years.
PEN 1465.9
The court must recalculate credit for time served on resentencing.
People v. Buckhalter (2001) 26 Cal.4th 20, 23
On resentencing more than 10 years after conviction, the court must strike the unpaid balance of the $10,000 restitution fine, and it must recalculate the defendant’s credit for time served.
Restitution fines are uncollectible after 10 years.
PEN 1465.9(d) [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.]
The court must recalculate credit for time served on resentencing.
People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37