Opinion
E073687
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID BENJAMIN CORDOVA, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1901555) OPINION APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; vacated in part with directions. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
In July 2019, a jury found defendant and appellant David Benjamin Cordova guilty of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). He admitted he had not remained free for five years since his release from prison where he had served a term following his conviction for robbery. The trial court sentenced him to seven years in state prison, which included a one-year enhancement for the prison prior. It also credited defendant with 147 days' presentence time served and 146 conduct credits. Defendant appealed.
All statutory references are to the Penal Code unless otherwise noted. --------
DISCUSSION
Defendant argues, and the People agree, that (i) amendment of the provision authorizing prison term enhancements for new offenses calls for striking the one-year sentence for his prison prior, and (ii) defendant's presentencing custody and conduct credits were calculated incorrectly. We will order the trial court to correct the credits and to strike the prior prison term enhancement and resentence defendant.
1. The prior prison term enhancement
When defendant was sentenced in July 2019, former subdivision (b) of Penal Code section 667.5 required the trial court to impose a one-year sentence enhancement for each true finding on an allegation a defendant had served a separate prior prison term and had not remained free from custody for at least five years. (Pen. Code, former § 667.5, subd. (b).) Thereafter, Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b), to limit the enhancement provision to prior prison terms resulting from convictions for sexually violent offenses as defined by section 6600 of the Welfare and Institutions Code. (Stats 2019, ch. 590, § 1.) The amendment became effective January 1, 2020. (Ibid.)
An amended statute that reduces the punishment for an offense will, absent evidence to the contrary, apply retroactively to any case in which the judgment is not yet final on the statute's operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1196, disapproved on other grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) For the purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review, including the time within which to petition the United States Supreme Court for a writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336; see People v. Covarrubias (2016) 1 Cal.5th 838, 935 [Judgment not final until time to petition for writ of certiorari has elapsed.].)
When a newly amended statute provides for reduction of punishment for an offense in cases not yet final, the appropriate remedy is to vacate the sentence and remand the matter with instructions to strike the enhancements and to resentence defendant in light of the new provision so long as the new sentence is not for a term in excess of the original. (See People v. Wright (2019) 31 Cal.App.5th 749, 756-757.)
Here, defendant's sentence included a one-year enhancement for a prior prison term that did not involve a sexually violent offense. This appeal from that judgment was not final before January 1, 2020, and the parties have the right to further review by other courts even after our opinion becomes final. Defendant is, therefore, entitled to benefit from the ameliorative effect of Senate Bill No. 136's amendment to subdivision (b) of section 667.5. Accordingly, we will order the trial court to strike the one-year enhancement and to resentence defendant.
2. The credits
Defendant argues and the People concede, that the trial court miscalculated his presentence custody and conduct credits. We agree.
Section 2900.5 requires defendants be given credit against their term of imprisonment for time spent in custody from the day of arrest to and including the day of sentencing. (§ 2900.5, subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 allows defendants to earn conduct credits at the rate of two days' credit for every two days of custody. (§ 4019, subds. (b), (c), & (f).) A mistake in calculation of credits results in an unauthorized sentence, an error that is not forfeited by failure to object and may be corrected on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
Here, defendant was in custody for 154 days (from April 6, 2019 to and including September 6, 2019) before he was sentenced. He is, therefore, entitled to 308 total credits, consisting of 154 custody and 154 conduct credits. The trial court awarded only 293 in total credits when sentencing defendant in September 2019. That error must be corrected when this matter is remanded for resentencing.
DISPOSITION
The sentence is vacated. The matter is remanded with instructions to strike the one-year prior prison term and to resentence defendant in a manner consistent with the views expressed in this opinion. The clerk of the Superior Court of Riverside County is to include in the sentencing minutes and abstract of judgment custody credits of 154 days and conduct credits of 154 days, for a total of 308 days' credit. The superior court clerk is directed to forward a copy of the abstract of judgment reflecting the new sentence and corrected award of credits to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MENETREZ
J.