Tag Archives: Credit for time served

Abstracts and Minutes, Duty of the court, Sentencing

Case 000965

Posted on by Gary McCurdy

Error and/or relief

(Gary note: Alas, this is yet another “not a win.” But it is yet another instance of an error in the abstract of judgment.)

The defendant was resentenced under section 1172.75. The abstract of judgment does not accurately reflect the oral pronouncement and must be corrected. Further, the trial court failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing.

First Holding:

The amended abstract of judgment fails to reflect that the trial court sentenced the defendant to two consecutive 25-year to life terms for burglary and robbery, plus a three-year enhancement on the robbery count under section 12022.7, a stayed, three-year enhancement on the burglary count under section 12022.7, and concurrent five-year enhancements under section 667(a) on both the robbery and burglary counts. We will direct the trial court to correct this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.]

Second Holding:

The trial court also failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing. A court that modifies a defendant’s sentence must recalculate and credit against the modified sentence all actual time the defendant has already served, whether before or since he was originally committed and delivered to prison custody. 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, 41 [under section 2900.1, the trial court, having modified defendant’s sentence, should have determined all actual days defendant had spent in custody and awarded such credits in the new abstract of judgment]

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

Abstracts and Minutes, Sentencing

Case 000959

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to recalculate his custody credits and the amended abstract of judgment reflects the incorrect amount of conduct credit. The abstract of judgment must be amended to accurately reflect defendant’s custody credits and his restitution fine must be vacated due to recent amendments to section 1465.9.

First Holding:

The trial court, having modified defendant’s sentence on remand, 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.

Authority:

PEN 2900.1

PEN 2900.5

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

Second Holding:

In cases where there is no factual dispute as to the dates of custody and the calculation is merely arithmetical, the defendant should not be deprived of credit to which he or she is entitled merely because trial counsel made a mistake.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

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

Third Holding:

The abstract of judgment reflects that the conduct credit days ordered at the original sentencing hearing was 40 days instead of the 70 days actually granted. The abstract must be corrected to reflect the 70 days pre-sentence conduct credit.

Authority:

People v. Hernandez (2024) 103 Cal.App.5th 981, 993

People v. Boyd (2024) 103 Cal.App.5th 56, 74–75

Fourth Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years must be vacated.

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 restitution fine was originally imposed in 2007, and defendant was resentenced over 18 years later. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000952

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in pronouncing judgment regarding custody credits. Though the court announced the actual and conduct amounts separately and correctly, the court announced an incorrect total of the two. We modify the judgment accordingly.

Holding:

the trial court awarded the defendant 98 days of actual credit and 98 days of conduct credit (sec. 4019), but made a mathematical error in announcing the defendant’s total credit as 180 days rather than 196 days. The abstract of judgment already reflects the proper total and need not be corrected, but we modify the judgment to reflect the correct total.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment]

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Sentencing

Case 000930

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

The court awarded 42 days of actual custody credit spent between the date of his conviction and the date of sentencing, but apparently did not recognize that he spent one more day in custody before posting bail the day he was arrested. Presentence actual custody credits include the day of arrest, and any day spent even partially in custody counts for a full day of credit.

The defendant is entitled to a day of actual custody credit for the time that he spent in jail on the day of his arrest. Accordingly, we will order the judgment modified to reflect that the defendant is entitled to 43 days of actual custody credits and six days of conduct credits. (Conduct credit is limited to 15% because he was convicted of a violent felony, and section 2933.1 therefore applies.)

Authority:

PEN 2933.1

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

People v. Valdes (2020) 53 Cal.App.5th 953, 955