Opinion
F074781
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SHANE BOSCO, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF268399)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Black, J.†
-ooOoo-
Defendant Joseph Shane Bosco was resentenced after we vacated his sentence and remanded his case to the trial court. He now contends that on resentencing, the trial court failed to award presentence conduct credits, and also miscalculated his credits based on erroneous dates. The People concede and we agree. We vacate the sentence and remand for recalculation of actual time served, calculation of conduct credits, and correction of the abstract of judgment.
We take judicial notice of our nonpublished opinion in People v. Bosco (Feb. 29, 2016, F068693). --------
BACKGROUND
Defendant was arrested on May 29, 2012. After his conviction, he was sentenced on December 26, 2013. On appeal, we reversed and remanded the case for resentencing. Defendant was resentenced on November 10, 2016.
At the resentencing hearing on November 10, 2016, the trial court failed to award any conduct credits, based on the probation officer's incorrect recommendation that the court need only calculate defendant's actual time served and should leave the determination of custody credits to the Department of Corrections and Rehabilitation, pursuant to People v. Honea (1997) 57 Cal.App.4th 842 (Honea), disapproved on another ground in People v. Johnson (2004) 32 Cal.4th 260, 268, fn. 3.
The parties agree that the probation officer incorrectly advised the trial court it was not responsible for calculating custody credits, and misinterpreted Honea in doing so. The parties recognize that "Penal Code section 2900.5 imposes on the sentencing court the obligation to determine the number of days of custody and, in those cases to which it expressly applies, conduct credit to which the defendant is entitled, and to enter the credits on the abstract of judgment." (People v. Sage (1980) 26 Cal.3d 498, 508-509; People v. Fares (1993) 16 Cal.App.4th 954, 958.) We will remand to the trial court for this purpose.
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court with directions to calculate the credits for actual time served and conduct credits based on the correct dates, and to amend the abstract of judgment by listing those credits. The court is directed to forward a certified copy of the amended abstract of judgment to the appropriate entities. As so modified, the judgment is affirmed.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.