Tag Archives: Credit for time served

Duty of the court, Sentencing

Case 000696

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by refusing to recalculate the defendant’s credit for time served on resentencing, instead deferring to the Department of Corrections and Rehabilitation to make the calculation. The trial court was responsible for making this calculation.

First Holding:

Penal Code section 1237.1 requires that errors in the award of presentence custody credits be addressed to the sentencing court, even when the matter is pending on appeal. An erroneous credit calculation is an act in excess of the sentencing court’s jurisdiction and may be corrected by that court whenever brought to its attention.

Authority:

PEN 1237.1

People v. Wrice (1995) 38 Cal.App.4th 767, 770

People v. Jack (1989) 213 Cal.App.3d 913, 917

Second Holding:

The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing. The defendant was originally sentenced on in 2022 and was credited with 476 presentence custody credits. He was resentenced in 2025 with the same number of credits.

Where, as here, a prison term already in progress is modified, the resentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. There are [nearly 900] days between and including the original sentencing date and the resentencing date. Therefore, the defendant is entitled to actual credits of [more than 1350] days. The trial court was responsible for making this calculation.

Authority:

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

People v. Salgado (2022) 82 Cal.App.5th 376, 381

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

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

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Sentencing

Case 000652

Posted on by Gary McCurdy

Error and/or relief

The court failed to give the defendant credit for time served while in custody on this matter in another state.

First Holding:

The defendant was entitled to credit against his sentence for all actual days of presentence custody, beginning on the day of his arrest and continuing through the day of sentencing. Defendant was taken into custody in another state, where he was held for 13 days before his arrival in California. He is entitled to credit for that time.

Authority:

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

Fines and fees, Sentencing

Case 000642

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court erred by awarding fewer presentence conduct credits than ordered at the original sentencing, and the restitution fine must be vacated as it is now more than 10 years old.

First Holding:

Erroneous computation of presentence credits are subject to correction by the trial court or the appellate court when presented.

Authority:

People v. Guillen (1994) 25 Cal.App.4th 756, 764

Second Holding:

The restitution fine was imposed at the time of the original sentencing in 1995. Section 1465.9(d) now 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)

Appellate Principles, Duty of the court, Sentencing, Standard of review

Case 000633

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in calculating the defendant’s pretrial custody credits and awarded him too few. The judgment is modified accordingly.

Holding:

We independently review whether a trial court has correctly awarded custody credits. A defendant accrues actual custody credits pursuant to section 2900.5 for time spent in custody prior to sentencing. Actual custody credits are calculated by adding together “all days of custody” the defendant has served. The failure to award earned custody credits results in an unauthorized sentence, which we may correct. Because the amount of presentence credits appears from our record, we may modify the award of presentence credits to reflect the correct amount.

Authority:

PEN 2900.5

People v. Arevalo (2018) 20 Cal.App.5th 821, 827

People v. Anaya (2007) 158 Cal.App.4th 608, 611

People v. Boyd (2024) 103 Cal.App.5th 56, 65–71

People v. Jones (2000) 82 Cal.App.4th 485, 493

Juveniles, Sentencing

Case 000621

Posted on by Gary McCurdy

Error and/or relief

The credit for time served was miscalculated and is corrected.

Holding:

The juvenile court must subtract days that a juvenile spends in custody before disposition from their maximum period of physical confinement. The court subtracts the full period of precommitment custody starting with the day of arrest and including the day of the dispositional hearing. When, as in this case, there is no dispute about a calculation error, we need not remand the matter for recalculation. Instead, we may modify the dispositional order.

Authority:

WIC 875

PEN 2900.5

In re Antwon R. (2001) 87 Cal.App.4th 348, 352, 353 [minors are entitled to same reduction that adults receive under Penal Code section 2900.5]

People v. Bravo (1990) 219 Cal.App.3d 729, 735 [custody credit includes days of arrest and sentencing]

Jurisdiction, Sentencing, Standard of review

Case 000602

Posted on by Gary McCurdy

Error and/or relief

Although the trial court had the jurisdiction to correct clerical errors, it had no jurisdiction after the judgment was final to correct judicial errors. Thus, it had no jurisdiction to set aside the credit for time served that it had awarded years earlier. The order eliminating the credits must be vacated.

(Because the new offenses were committed in prison while serving an earlier commitment, the new sentence was required to run consecutively, and he was not entitled to credit for time while serving his term on the original offense to be applied against the new consecutive sentence. Nonetheless, the court originally awarded him nearly two years credit for time served.)

First Holding:

The question whether the trial court had jurisdiction to eliminate custody credits after a final judgment is a pure question of law we review de novo.

Authority:

People v. Camp (2015) 233 Cal.App.4th 461, 467

Second Holding:

Under the general common law rule, a trial court loses jurisdiction to resentence a criminal defendant once execution of the sentence has begun. While there are some exceptions to that rule, none justifies the court’s elimination of the defendant’s custody credits.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

Third Holding:

A court has inherent power to correct a clerical error at any time. Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here, the trial court’s orders imposing the custodial credits in 2010, 2021, and again in 2024 were plainly judicial—not clerical—errors.

Authority:

In re Candelario (1970) 3 Cal.3d 702, 705

People v. Boyd (2024) 103 Cal.App.5th 56, 63

In re Rojas (1979) 23 Cal.3d 152, 154

Fourth Holding:

Section 1172.1(a)(1) does not apply here, because (1) it was not the Caliofrnia Department of Corrections and Rehabilitation secretary who sent the letter pointing out the errors, but a records analyst who sent the letter; (2) the sentencing was not within 120 days of the date of commitment; and (3) the request did not relate to a change of sentencing laws since the original sentencing. Moreover, the sentence was in fact greater than the original sentence.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [letter came from a case records manager, not the secretary and did not reference section 1172.1 or use the terms recall or resentencing]

People v. Singleton (2025) 113 Cal.App.5th 783, 791–792

Fifth Holding:

Regarding jurisdiction to correct an unauthorized sentence, we find King to be a better reasoned case than Codinha. King reasoned that the “venerable notion” that an unauthorized sentence may be corrected at any time had been rejected by the Supreme Court in In re G.C.. The unauthorized sentence doctrine is an exception to the waiver doctrine, in that a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court. It is not, however, an exception to the requirement of jurisdiction. Rather, in order to invoke the unauthorized sentence doctrine to remedy a judgment of conviction, the trial court must still have jurisdiction over the judgment.

Authority:

People v. King (2022) 77 Cal.App.5th 629, 635

In re G.C. (2020) 8 Cal.5th 1119, 1129

People v. Boyd (2024) 103 Cal.App.5th 56, 66

People v. Garcia (2025) 114 Cal.App.5th 139, 145–146

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1123

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Fines and fees, Retroactivity, Sentencing

Case 000587

Posted on by Gary McCurdy

Error and/or relief

On appeal from a hearing under section 1172.75, the appellate court struck the balance of the restitution fine as it was ordered more than 10 years prior to the resentencing.

First Holding:

Effective January 1, 2025, section 1465.9 was amended and now 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)

Second Holding:

Respondent asserts the trial court did not impose the restitution fine nor parole revocation fine at the time of resentencing and therefore it must be stricken for that reason. Generally, respondent is correct.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

People v. Frederickson (2020) 8 Cal.5th 963, 1027 [striking a restitution fine from the record and the abstract of judgment where the court failed to orally impose the fine during the sentencing hearing]

People v. Nilsson (2015) 242 Cal.App.4th 1, 34 [resentencing necessarily requires a court to impose a new sentence, including any fines, fees, and assessments]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [the oral pronouncement of judgment controls]

Third Holding:

In this instance, however, the trial court merely reaffirmed the original judgment with the exception of striking the now-invalid prior prison term enhancement. The judgment following the resentencing is not yet final, we conclude appellant is entitled to have the restitution fine stricken. As appellant’s restitution fine was first imposed more than 10 years ago, it is now unenforceable and uncollectible under section 1465.9(d).

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted on another issue Mar. 11, 2026, S295038

In re Estrada (1965) 63 Cal.2d 740, 744–745 [absent evidence to the contrary, we presume ameliorative criminal statutes apply retroactively to all nonfinal judgments]

Fourth Holding:

Section 1465.9(d) does not apply to the parole revocation restitution fine under section 1202.45. In Kopp, the court vacated any unpaid portion of the defendant’s restitution fine under section 1465.9(d), but nonetheless remanded the matter because a parole revocation fine is still required and was to be set in the same amount as the restitution fine would have been had the court properly considered the defendant’s ability to pay and stayed.

Further, section 1465.9 makes no mention of the parole revocation restitution fine under section 1202.45. We are not to insert a term that was not included in a statute or omit a term that has been included. Although a parole revocation fine is closely related to a restitution fine in that they must be imposed at the same time and in the same amounts, a parole revocation fine serves a different purpose, i.e., to deter a prisoner from violating parole, to incentivize a prisoner’s rehabilitation while on parole, and to recoup costs if parole is violated. That purpose is still relevant where, as here, an inmate might one day be paroled. No principle or authority supports vacating the parole revocation fine.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 12, 24, 30

People v. Massicot (2002) 97 Cal.App.4th 920, 925

People v. Preston (2015) 239 Cal.App.4th 415, 427, 429

Fifth Holding:

It was unnecessary for the trial court to recalculate the defendant’s credit for time served. The sentence from which this appeal was taken has not yet begun to be served, because it was ordered to run consecutive to the one he is currently serving from another county. Under other circumstances, a court may be required to calculate custody credits on a sentence imposed by another county. The present case presents does not present such a circumstance.

Authority:

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1126 [in a determinate sentence case, sentencing court’s imposition of a consecutive sentence replaced another county’s sentence; the second county became the sentencing court]

Amelioration, Discretion, Duty of the court, Sentencing

Case 000585

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court declined to consider dismissing a firearm enhancement, citing its desire not to get involved in changing the sentence of the original sentencing court and not to usurp the role of the parole board in assessing when defendant was ready for release. Because these rationales reflect an abdication of the court’s duty to exercise its sentencing discretion, we must reverse and remand for the court to exercise that discretion at a new, full resentencing.

First Holding:

The failure to exercise discretion is an abuse of discretion.

Authority:

People v. Bigelow (1984) 37 Cal.3d 731, 744

Dickson Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449

Second Holding:

Where, as here, a defendant was originally sentenced for a prior prison term enhancement that arose from a conviction that was not a sexually violent offense, that defendant is entitled to a full resentencing where that enhancement is to be stricken and where the trial court is to apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 875

Third Holding:

The law regarding the 25 years-to-life firearm enhancement has changed since defendant’s original sentencing hearing in 2004: At that time, a trial court did not have discretion to dismiss that enhancement; since January 1, 2018, trial courts have had the power to dismiss firearm enhancements under section 12022.53 entirely or to substitute a lesser firearm enhancement in their place.

Authority:

PEN 12022.53

People v. Tirado (2022) 12 Cal.5th 688, 695-696

Fourth Holding:

Although we review a trial court’s discretionary sentencing decisions for an abuse of discretion a trial court abuses its discretion when it refuses to exercise that discretion. That is what happened here: What was supposed to be a full resentencing was merely a reaffirmation of a prior sentence and an abdication of discretionary decision-making to others whom the trial court believed were (or had been) better suited to the task. Section 1172.75 requires trial courts to get involved where, as here, the governing law has changed in a way that makes a lower sentence a possibility. What is more, section 1172.75 also enables a trial court to consider postconviction factors, which would be given no weight were a trial court to defer to the original sentence entered before any postconviction conduct comes to pass.

Authority:

PEN 1172.75

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Bigelow (1984) 37 Cal.3d 731, 744

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

Fifth Holding:

The presumption of regularity is rebutted when a trial court affirmatively indicates that it is not following the law.

Authority:

People v. Carter (2014) 227 Cal.App.4th 322, 324

People v. Panozo (2021) 59 Cal.App.5th 825, 839 [where the record is not silent, but rather is ‘at the very least ambiguous as to whether the court understood its statutory obligation, remand is appropriate]

Sixth Holding:

Upon remand, the court is to conduct the full resentencing mandated by section 1172.75. At that time, the court should calculate defendant’s actual custody credits from the date of arrest through the date of resentencing.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [defendant entitled to all actual custody days since arrest, including date of resentencing]

Appellate Principles, Duty of the court, Sentencing

Case 000550

Posted on by Gary McCurdy

Error and/or relief

The amount of credit for time served was short by three days. The judgment is modified to include those three days.

Holding:

The appellate court has authority to modify the judgment to correct the credit for time served.

Authority:

People v. Jones (2000) 82 Cal.App.4th 485, 493–494 [modifying judgment to correct custody credits]

Discretion, Sentencing

Case 000543

Posted on by Gary McCurdy

Error and/or relief

The trial court did not understand that it had the jurisdiction to strike prior strikes at a resentencing hearing under section 1172.75. Remanded for the court to consider how to exercise its discretion. It must also recalculate the defendant’s credit for time served.

First Holding:

Because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

PEN 1385

People v. Rogers (2025) 108 Cal.App.5th 340, 362

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Second Holding:

The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Section 1172.75 is a permissible alternative resentencing method for third strike offenders, and upon recall, defendants like the defendant in Guevara were no longer presently serving indeterminate third strike sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 854

Fourth Holding:

We express no opinion on the merits of the motion, which rest in the trial court’s sound discretion to evaluate.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377-378

Fifth Holding:

Defendant is entitled to recalculation of custody credits at the close of the hearing, whether the trial court resentences him to 25 years to life or imposes a different sentence.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41