Opinion
F086543
04-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JESSE STEWART, Defendant and Appellant.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF012046C. Judith K. Dulcich, Judge.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant Jesse Stewart appeals following resentencing on one count of assault and one count of possession of a weapon by a prisoner. Appellant pleaded no contest to these charges and agreed to admit a prior strike conviction in exchange for an aggregate term of 10 years four months in prison, which was imposed at a sentencing hearing in November 2016. In January 2023, the Department of Corrections and Rehabilitation (CDCR) contacted the trial court to advise the issued sentence was unauthorized. Following appointment of counsel, the court resentenced appellant to an aggregate term of eight years four months in prison, but declined to calculate any credits to be awarded for time served. Appellant claims this violates the logical extension of the rule set forth in People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter). Respondent concurs, as do we, and we remand to the trial court for the limited purpose of calculating the amount of time appellant has served on his sentence.
BACKGROUND
Because the factual background of the case is not relevant to the issues raised on appeal, we omit it here. Appellant was first incarcerated following a sentence of 10 years imposed in a Yuba County case for voluntary manslaughter in May 2000. He was then sentenced to a consecutive term of six years in a Monterey County case in March 2003 and a further consecutive term of two years in a May 2011 Lassen County case. On the current sentence, appellant was charged in May 2016 by amended information with two counts of assault with a deadly weapon, the first of which included an enhancement for great bodily injury. In October 2016, appellant entered a plea of no contest to amended charges of assault (Pen. Code, § 245) and manufacturing of a weapon in a penal institution (§ 4502) in exchange for an aggregate sentence of 10 years four months in prison, consisting of four years for the assault charge, with a five-year enhancement pursuant to section 667, and 16 months for manufacturing a weapon in a penal institution.
All further statutory references are to the Penal Code.
Prior to sentencing in the present proceeding, the probation officer prepared a report stating that the agreed-upon sentence was unauthorized because the Monterey County sentence should remain the principal term, with the terms for both of the counts of conviction in the present case to be imposed at one-third the middle term, for an aggregate term of eight years four months, rather than 10 years four months. The trial court did not heed this recommendation, and sentenced appellant to 10 years four months, per the plea agreement, in November 2016.
Under California's determinate sentencing law, when sentences are imposed to run consecutively, the longest term is designated as the principal term, and the other sentences are served at one-third the middle term for each subordinate term and "one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (§ 1170.1, subd. (a).)
In January 2023, CDCR sent the trial court a letter indicating that it believed the abstract of judgment may be in error or contain an unauthorized sentence, because the Monterey County sentence should have remained the principal term. This meant the current sentence should have been imposed as a subordinate term, instead of a principal term, which would result in an aggregate sentence of eight years four months, not 10 years four months. The trial court agreed appellant should be resentenced, and appointed counsel for appellant in May 2023. Appellant was resentenced on July 7, 2023, to an aggregate term of eight years four months. However, during the sentencing hearing, the trial court refused to calculate any time credits for appellant, saying CDCR would do so once appellant was remanded to its custody. Accordingly, the new abstract of judgment issued in July 2023 reflects "NO CREDIT" to appellant for time served, even though the sentence was originally imposed in November 2016 and it is apparent appellant had already served at least some of the time imposed in this sentence. Appellant complains this failure to calculate appellant's credit for time served is error, and respondent agrees.
Neither party contests the length of the sentence, the appropriate designation of the principal term, or any other issues with the underlying sentence in this appeal, so we accept it as correct.
DISCUSSION
In Buckhalter, supra, 26 Cal.4th 20, our Supreme Court resolved the issue of whether a trial court must calculate credits for time served when resentencing a defendant, and which credits are eligible for inclusion in said calculation. In that case, the trial court conducted a resentencing following an appellate remand, and in doing so declined to award any "additional time and good behavior credits for his confinement pending the remand hearing, even for the five months he had been physically housed in the county jail, rather than prison, while awaiting the hearing." (Id. at pp. 26-27.) The trial court in Buckhalter, similar to the trial court here, explained CDCR was responsible for calculating and applying credits during that period. (Id. at p. 27.) The defendant appealed following resentencing, claiming he should have been eligible for both custody and good behavior credits under section 4019, which applies "[w]hen a prisoner is confined in a county jail ... prior to the imposition of sentence for a felony conviction." (§ 4019, subd. (a)(4).)
The Supreme Court found the defendant was not eligible for good behavior credits under section 4019, but was eligible for custody credits, noting "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." (Buckhalter, supra, 26 Cal.4th at p. 29.) While the majority of the court's opinion was devoted to explaining why good behavior credits under section 4019 did not apply to one being resentenced in that situation, it also noted that "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." (Buckhalter, at p. 37.)
This duty arose from section 2900.1, which states "[w]here a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently ... modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (§ 2900.1.) The Supreme Court specifically found error in the trial court's failure to recalculate actual custody credits, and found the court should have "awarded such credits in the new abstract of judgment." (Buckhalter, at p. 41.)
In this case, appellant requested the trial court, which was resentencing him, recalculate the actual time credits pursuant to Buckhalter. The court refused, believing this to be an administrative function of CDCR. This is incorrect. As our Supreme Court specified in Buckhalter, section 2900.1 requires a resentencing court to recalculate the actual time appellant has served pursuant to the sentence for which he is being resentenced, and award those credits in the new abstract of judgment.
It is true Buckhalter involved a somewhat different procedural posture, in which resentencing was due to an appellate remand. (Buckhalter, supra, 26 Cal.4th at p. 29.) Here, the resentencing occurred of the trial court's own volition pursuant to a notice from CDCR that the sentence was apparently unauthorized. However, we discern no reason not to apply the logic of Buckhalter, which itself merely applies the plain text of section 2900.1, stating that when a defendant has served "any portion of his sentence" and that sentence "is subsequently . . . modified," the time he previously served "shall be credited upon any subsequent sentence he may receive." The People do not suggest any reason these procedural postures should or could be treated differently.
DISPOSITION
The matter is remanded to the trial court for the limited purpose of recalculating the actual time credits for which appellant is eligible on his resentencing, and issuing an amended abstract of judgment so reflecting, to be forwarded to the appropriate entities.
[*] Before Levy, Acting P. J., Detjen, J. and Snauffer, J.