Opinion
F084807
10-23-2023
THE PEOPLE, Plaintiff and Respondent, v. ROLAND BERNARD CAMPBELL, Defendant and Appellant.
Siena Kautz, 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, Kari Ricci Mueller and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F18902433 John F. Vogt, Judge.
Siena Kautz, 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, Kari Ricci Mueller and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In 2019, Roland Bernard Campbell (defendant) was sentenced to an 11-year prison term. His sentence included three enhancements, one of which was later invalidated by Senate Bill No. 136 (2019-2020 Reg. Sess.). In People v. Campbell (Apr. 7, 2022, F080512) (nonpub. opn.) (Campbell I), this court affirmed defendant's convictions but reversed one enhancement and remanded the cause for resentencing. In July 2022, the trial court imposed an aggregate 10-year prison term that included the two enhancements not affected by Senate Bill No. 136.
In this appeal, defendant alleges sentencing error based on a January 2022 amendment to Penal Code section 1385. (All undesignated statutory references are to the Penal Code.) By enactment of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), section 1385 now reflects a legislative preference for the dismissal of enhancements if certain "mitigating circumstances" are shown to exist. (§ 1385, subd. (c)(2).) One such circumstance is where "[m]ultiple enhancements are alleged in a single case." (Id., subd. (c)(2)(B).) In that situation, the preference is for "all enhancements beyond a single enhancement" to be dismissed. (Ibid.)
Sentencing courts must "consider and afford great weight" to the circumstances enumerated in section 1385, meaning "the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (Id., subd. (c)(2).) At defendant's resentencing, the trial court acknowledged the new law and made findings of dangerousness. However, the court did err in failing to update defendant's custody credits. We affirm the judgment but direct the trial court to recalculate the presentence credits.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was prosecuted for committing a violent act against a female acquaintance (the victim) and stealing her bicycle. The incident occurred in 2018, and defendant was tried before a jury in 2019. The charges, as amended to conform to proof during trial, were as follows:
Count 1: Second degree robbery (§§ 211, 212.5) involving personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)).
Count 2: Assault with a deadly weapon or instrument (§ 245, subd. (a)(1)), with personal infliction of great bodily injury.
A prior strike conviction was alleged for purposes of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) Defendant was further alleged to have served two prior prison terms. (§ 667.5, former subd. (b).) He was found guilty as charged and the enhancement allegations were found true. The great bodily injury enhancements were supported by evidence defendant had struck the victim with a metal bicycle lock, causing a head wound that required 23 stitches to close. The allegations of a prior strike and prior prison terms were found true in a separate bench trial.
On December 11, 2019, defendant was sentenced to a total prison term of 11 years. The middle term of three years was imposed for count 1, then doubled because of the prior strike and increased by three years for the great bodily injury enhancement. Additional one-year terms were imposed for the weapon enhancement and one of the prison priors. A concurrent sentence was imposed for count 2.
While defendant's appeal in Campbell I was pending, the one-year enhancement provided for in Penal Code section 667.5, former subdivision (b) became inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) Neither of the prison priors in defendant's case qualified under the new law. Accordingly, the disposition in Campbell I was as follows: "The enhancement findings made pursuant to section 667.5 are reversed and the corresponding prior prison term enhancements are ordered stricken from the judgment. The matter is therefore remanded for resentencing. In all other respects, the judgment is affirmed."
Defendant was resentenced on July 14, 2022. In prefatory remarks, the trial court said it was conducting "an entire resentencing to look at all of the possible and appropriate sentencing options under the revised law as it stands as of January 1st of this year." The court also said, "I want you to know that I have thoroughly reviewed the former report and recommendation of the Probation Department that I acted on back in 2019 and do understand the charges and options-charges and enhancements before me. I have reviewed them in light of the current law."
Defense counsel made a brief argument before the matter was submitted: "Your Honor, I would again respectfully ask the Court to give [defendant] all possible time credits and all consideration under the enactment to lessen the time in custody." The "enactment" to which counsel was referring is not clear from the record.
After the matter was submitted, the trial court discussed a previously denied Romero motion (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); § 1385, subd. (a)):
"I believe the Court's first consideration needs to be, though, I did not hear a specific request anew, to strike the strike finding. In this case, the Court has now reviewed the imposition of that strike impact on sentencing pursuant to the new provisions of [section] 1385 of the Penal Code. And the Court has reviewed the application of the strike in light of the factors of 1385, which directs the Court to consider. In looking at 1385[, subdivision] (c)(2)(A) through (I), the Court finds that there are no mitigating factors that would impact the Court's finding that he otherwise does. In fact, a dismissal of this enhancement would in fact endanger public safety, that is, that there is a likelihood that the dismissal of this enhancement would result in further physical injury or other serious danger to others in the community. So the Court is, therefore, declining any option of exercising its discretion to strike the strike prior and it will be used to enhance the imposition of sentence in this matter."
Next, the court considered whether to "deviate from the presumed imposition of the middle term" for counts 1 and 2. The remarks alluded to Senate Bill No. 567 (20212022 Reg. Sess.) (Senate Bill 567), which amended sections 1170 and 1170.1 effective January 1, 2022. (Stats. 2021, ch. 731 §§ 1.3, 2.) The court found there was "[no] reason to deviate either upwardly or downwardly from the middle term."
Defense counsel requested and was granted permission to "comment upon" the court's statements regarding imposition of the middle term. The ensuing argument was, by counsel's own admission, a "rehashing" of the defense theory at trial that the victim was the initial aggressor. The trial court was asked "to consider a downward . imposition of time based upon the relationship that existed between the victim and [defendant]...." In other statements, defense counsel asked the trial court "to impose a lesser sentence in regards to whether or not [defendant] is a continuing danger to the public."
The trial court rejected the defense arguments and reimposed the middle term for count 1. This base term was doubled because of the prior strike, and the great bodily injury and weapon enhancements were consecutively imposed. A concurrent term was imposed for count 2. The aggregate sentence was 10 years. Defendant filed a timely notice of appeal.
DISCUSSION
I. Legal Overview
Senate Bill 81's amendments to section 1385 "apply to all sentencings occurring after January 1, 2022." (§ 1385, subd. (c)(7).) When defendant was resentenced in July 2022, the relevant provisions of section 1385, subdivision (c) provided as follows:
"(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
"(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. 'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
"(A) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
"(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness. "(E) The current offense is connected to prior victimization or childhood trauma. "(F) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
"(G) The defendant was a juvenile when they committed the current offense or any prior offenses, including criminal convictions and juvenile adjudications, that trigger the enhancement or enhancements applied in the current case.
"(H) The enhancement is based on a prior conviction that is over five years old.
"(I) Though a firearm was used in the current offense, it was inoperable or unloaded."
The first published case interpreting the new version of section 1385 was People v. Walker (2022) 86 Cal.App.5th 386, review granted March 22, 2023, S278309 (Walker). The opinion addressed two issues. First was whether the "shall be dismissed" language in section 1385, subdivision (c)(2)(B) (hereafter section 1385(c)(2)(B)) is a mandatory directive of automatic dismissal. "Second, what does it mean to 'greatly weigh' a mitigating circumstance in deciding whether to dismiss an enhancement?" (Walker, at p. 391.)
The Second Appellate District, Division Two, concluded sentencing courts retain discretion to impose multiple enhancements even though section 1385(c)(2)(B) says, "all enhancements beyond a single enhancement shall be dismissed." (Walker, supra, 86 Cal.App.5th at pp. 396-397, review granted.) However, "section 1385's use of the additional phrase 'great weight' . erects a presumption in favor of the dismissal of the enhancement unless and until the court finds that the dismissal would 'endanger public safety'.." (Id. at pp. 398-399.)
In People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted April 12, 2023, S278894 (Ortiz), the Sixth Appellate District disagreed with Walker. The Ortiz opinion holds that enhancements may be imposed without a public safety determination, even if one or more of the mitigating circumstances listed in section 1385 are established. (Ortiz, at pp. 1096-1098.) The split of authority is now under review by the California Supreme Court. There are other published decisions, but "[n]one of the cases holds that dismissal is required even when it would endanger public safety." (People v. Mendoza (2023) 88 Cal.App.5th 287, 297.) The trial court's express and implied findings of dangerousness in this case make it unnecessary for us to take a position on the issue. (See, e.g., People v. Mendoza, supra, at p. 297; People v. Lipscomb (2022) 87 Cal.App.5th 9, 18.)
II. The Parties' Contentions
Defendant makes several interrelated contentions. He begins by claiming the trial court erred by not articulating an "individualized finding of dangerousness" for each enhancement that was imposed. The People respond that such explicit findings were unnecessary. We agree with the People. Although an explanation must be provided for granting relief under section 1385, the court is not required to state its reasons for declining to dismiss an enhancement. (§ 1385, subd. (a); see Cal. Rules of Court, rule 4.406(b)(7).) "'We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.'" (People v. Francis (2002) 98 Cal.App.4th 873, 878.)
The People also contend defendant's claims are forfeited. "A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it ... failed to state any reasons or give a sufficient number of valid reasons.'" (People v. Gonzalez (2003) 31 Cal.4th 745, 751.)
Defendant attempts to defeat the forfeiture argument by characterizing his sentence as "unauthorized." "The unauthorized sentence doctrine is designed to provide relief from forfeiture for 'obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.'" (People v. Anderson (2020) 9 Cal.5th 946, 962.) An unauthorized sentence is one that "could not lawfully be imposed under any circumstances in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Even under Walker, the trial court had discretion to impose multiple enhancements if it found dismissal of an enhancement would endanger public safety. (Walker, supra, 86 Cal.App.5th at pp. 398-400, review granted.) The true essence of defendant's claim is that the trial court did not understand the applicable law.
In a further effort to avoid forfeiture, defendant alleges ineffective assistance of counsel (IAC). He contends "there is no tactical reason that could excuse counsel's failure to object to the court's lack of consideration of relevant mitigating circumstances when imposing multiple enhancements." Defendant also faults his trial counsel for not requesting a supplemental probation report on his "in-prison behavior" since the time of the original sentencing. He theorizes that evidence of good postsentencing behavior might have "convince[d] the court to impose the lower term or strike one or more of the enhancements." The People dispute these claims.
Lastly, defendant argues the trial court was obligated "to recalculate his presentence confinement credit award" to account for "the period from the date he was originally sentenced until the date [he was resentenced]." This claim is appropriately conceded by the People. (See further discussion, post).
III. Senate Bill 81 Does Not Affect the Three Strikes Law
The trial court reconsidered defendant's Romero motion in light of section 1385, subdivision (c), which concerns enhancements. As we will discuss, penalties imposed under the Three Strikes law are not enhancements. Defendant seeks to capitalize on the trial court's mistake by alleging error under section 1385, subdivision (c)(2)(H), which supports the dismissal of an enhancement "based on a prior conviction that is over five years old." Defendant argues that because his prior strike is from 2006, the trial court erred by not giving proper weight to the age of the strike.
The California Supreme Court has explained that the Three Strikes law is an alternative sentencing scheme, not an enhancement. (Romero, supra, 13 Cal.4th at p. 527.) "The plain language of subdivision (c) of section 1385 applies only to an 'enhancement,' and the Three Strikes law is not an enhancement." (People v. Burke (2023) 89 Cal.App.5th 237, 244.) Therefore, Senate Bill 81's amendments to section 1385 "do not apply to the Three Strikes law." (Ibid.; accord, People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2.) To the extent defendant relies on a contrary interpretation of the statute, his claims fail on the merits.
Defendant's briefing alleges "[t]here is some dispute as to whether section 1385[, subdivision] (c) applies to strike priors." He purports to rely on the Ortiz decision. There, the Sixth Appellate District chose to assume the applicability of section 1385, subdivision (c) to the appellant's underlying Romero motion "for purposes of [the] appeal." (Ortiz, supra, 87 Cal.App.5th at p. 1095, review granted.) The "dispute" alleged in defendant's briefing was merely between the Ortiz appellant and the Attorney General. There is no split of authority on this issue among the appellate courts.
IV. The Trial Court Presumably Knew and Followed the Applicable Law
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) But trial courts are presumed to know and follow the relevant law. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550; People v. Mosley (1997) 53 Cal.App.4th 489, 496.) A remand for resentencing is not required "if the record demonstrates the trial court was aware of its sentencing discretion" or "if the record is silent concerning whether the trial court misunderstood its sentencing discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.) "Error may not be presumed from a silent record." (Id. at p. 1229.)
Defendant relies on the trial court's discussion of section 1385, subdivision (c) in relation to his prior strike and its failure to specifically discuss the great bodily injury and weapon enhancements. It is true that "when a judge's remarks preceding a ruling reflect a misapprehension of the law upon which that ruling is based, the appellate court must consider the judge's remarks in its review." (People v. Carter (2014) 227 Cal.App.4th 322, 324.) However, the trial court's mistaken belief that punishment under the Three Strikes law constituted an "enhancement" hardly proves its ignorance of section 1385(c)(2)(B).
The trial court claimed to have reviewed the "charges and enhancements ... in light of the current law." It then referenced "the new provisions of [section] 1385," and specifically "1385(c)(2)(A) through (I)." We may therefore presume the court was aware of section 1385(c)(2)(B) and understood that the existence of multiple enhancements was a "mitigating circumstance."
The trial court also incorporated relevant statutory language into its decision. The statute says, "'Endanger public safety' means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (§ 1385, subd. (c)(2).) The trial court found, "[T]here is a likelihood that the dismissal of this enhancement would result in further physical injury or other serious danger to others in the community." The statement was admittedly made in reference to defendant's prior strike, but the court's decision not to dismiss either of the enhancements implies the same findings were made in relation to section 1385(c)(2)(B). (See People v. Brugman (2021) 62 Cal.App.5th 608, 637 ["'The trial court is not required to state reasons for declining to exercise its discretion under section 1385' [citations], and 'is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary'"].)
The trial court's implied findings of danger to public safety are supported by substantial evidence. The court "thoroughly reviewed" the probation report from the original sentencing, which included a risk assessment score of "High Violent." As reflected in the report, defendant is a habitual offender with at least 14 prior felony convictions and 32 misdemeanors dating back to 1987. His prior performance on probation and parole was abysmal, and he was on parole at the time of the current offenses. Defendant had been out of custody for less than two months when he inflicted great bodily injury upon the victim in this case.
Viewing the claim as one of IAC does not change the outcome. "To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted." (People v. Anderson (2001) 25 Cal.4th 543, 569.) In his reply brief, defendant argues his trial counsel "was not required to specifically refer to section 1385, subdivision (c), since it is presumed that the trial court knew the laws applicable to [defendant's] sentencing." We agree. Defense counsel made a generalized request for the trial court "to impose a lesser sentence in regards to whether or not [defendant] is a continuing danger to the public," and the court refused. Nothing in the record suggests defendant might have obtained a more favorable outcome but for counsel's failure to specifically argue for relief under section 1385(c)(2)(B).
V. A Supplemental Probation Report Was Not Required
"[W]hen a case is remanded for resentencing after an appeal, the defendant is entitled to 'all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed [citation]." (Dix v. Superior Court (1991) 53 Cal.3d 442, 460.) The defendant's conduct in prison is among the various circumstances a trial court may consider in deciding whether to strike an enhancement. (People v. Yanaga (2020) 58 Cal.App.5th 619, 627.) Based on these principles, defendant claims the trial court erred by not ordering a supplemental probation report before resentencing him. He argues such a report may have contained evidence of positive "in-prison behavior and rehabilitative efforts, as well as information relevant to [other mitigating factors listed in section 1385, subdivision (c)]."
Case law holds "that where a defendant fails to request a supplemental probation report, voices no objection to proceeding with resentencing without a supplemental probation report, and states there is no legal cause why judgment cannot be imposed, the issue of requiring a supplemental probation report is waived." (People v. Johnson (1999) 70 Cal.App.4th 1429, 1431.) That is exactly what happened at defendant's resentencing hearing. This district has applied the waiver/forfeiture rule "even where ... the issue before the sentencing court was whether to exercise discretion ... under section 1385." (People v. Franco (2014) 232 Cal.App.4th 831, 834.) The People rely on Franco and Johnson in their briefing, but defendant has not addressed either case. We conclude defendant's claim is forfeited.
The claim also fails on the merits. As explained in Franco, "[r]eferral of the matter to the probation officer for investigation and report is mandatory when a defendant convicted of a felony is eligible for probation [citations], but discretionary when the defendant is ineligible for probation, except where the amount of a restitution fine must be determined [citation]." (People v. Franco, supra, 232 Cal.App.4th at p. 834, fn. omitted.) When a presentence investigation and report is required for the issue of restitution (see Cal. Rules of Court, rule 4.411(a)(1)(B)), the trial court, "in [its] discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the [defendant]" (§ 1203, subd. (g)). (Italics added; subsequent rule references are to the California Rules of Court.)
Rule 4.411(a)(2) requires preparation of a supplemental probation report "if a significant period of time has passed since the original report was prepared." If a report concerning restitution was required at the original sentencing, this provision may require a supplemental report on that issue. But if the defendant is ineligible for probation and an expanded report on other issues was optional in the first instance, rule 4.411(a)(2) does not require a supplemental report on the optional information. (People v. Franco, supra, 232 Cal.App.4th at p. 834, fn. 21; People v. Johnson, supra, 70 Cal.App.4th at p. 1431.)
Defendant was ineligible for probation under section 667, subdivision (c)(2); section 1170.12, subdivision (a)(2); and section 1203.075, subdivision (a)(2). Defendant does not deny his ineligibility but contends a supplemental probation report was still required. He misunderstands the case law on this issue.
In People v. Brady (1984) 162 Cal.App.3d 1 (Brady), this district held "that upon remand for resentencing, even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant's imprisonment, it must obtain a new, updated probation report, including information regarding the defendant's behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing." (Id. at p. 7.) Defendant's briefing correctly notes that the Third Appellate District reached the same conclusion in People v. Foley (1985) 170 Cal.App.3d 1039 (Foley). What defendant fails to mention is that in People v. Webb (1986) 186 Cal.App.3d 401, the Third District disapproved of its earlier decision in Foley and rejected the rationale of Brady. (Webb, at p. 409.) Other districts subsequently endorsed Webb and disagreed with Brady, which led this district to revisit the issue in People v. Bullock (1994) 26 Cal.App.4th 985. The Bullock opinion concluded Brady was wrongly decided and held that although supplemental probation reports are generally recommended in all situations, they are not mandatory if the defendant is ineligible for probation. (Bullock, at p. 989; accord, People v. Franco, supra, 232 Cal.App.4th at p. 834.)
Defendant erroneously contends People v. Yanaga, supra, 58 Cal.App.5th 619 "revives" the holdings of Brady and Foley. In Yanaga, a trial court "refused to consider [the] appellant's postjudgment rehabilitative efforts in prison because it mistakenly believed it could consider only information before the original sentencing court." (Yanaga, at p. 622.) The opinion references Brady in a "see also" string citation (Yanaga, at p. 625) and contains a footnote quoting language originally found in this district's Bullock opinion: "There may be compelling reasons for ordering a probation report even when the defendant is ineligible for probation" (People v. Bullock, supra, 26 Cal.App.4th at p. 990). The Yanaga case does not support defendant's claim of error. As in Franco and unlike the facts of Yanaga, "[n]othing in the record suggests the trial court incorrectly believed it could not order a supplemental report if it wanted to do so." (People v. Franco, supra, 232 Cal.App.4th at p. 835, fn. 22.)
Defendant's IAC claim also fails. Constitutionally deficient performance may be found on direct appeal "only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.) It is possible defendant's trial counsel was privy to information about his postsentencing conduct that would have further weighed against striking an enhancement. (See People v. Johnson, supra, 70 Cal.App.4th at p. 1433 ["There are cases where the defendant may not want a supplemental report"].)
Defendant is also incapable of showing prejudice from counsel's allegedly deficient performance. Nothing in the record suggests that a supplemental probation report would have contained information supporting a more lenient sentence. Therefore, "'without engaging in speculation, we cannot infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial.'" (People v. Bolin (1998) 18 Cal.4th 297, 345; accord, People v. Lewis (2001) 25 Cal.4th 610, 675; see People v. Maury (2003) 30 Cal.4th 342, 389 ["the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'"].) "Because [the] claim of ineffective assistance of counsel relies on matters outside the appellate record, a petition for habeas corpus is a proper vehicle for getting the matter before the court." (People v. Cotton (1991) 230 Cal.App.3d 1072, 1083.)
VI. The Trial Court Must Recalculate Defendant's Custody Credits
Defendant's original sentencing date was December 11, 2019, at which time he was awarded 611 days of presentence custody credit. He was resentenced 946 days later, on July 14, 2022. On the latter date, the trial court said, "I do not have an updated calculation, but he is entitled to credits . as calculated by the Department [of Corrections and Rehabilitation (CDCR)]." The court apparently believed it was the CDCR's responsibility to update defendant's custody credits, which explains why the abstract of judgment still shows only 611 days of credit for actual time served.
"Persons who remain in custody prior to sentencing receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction. This form of credit ordinarily is referred to as credit for time served." (People v. Duff (2010) 50 Cal.4th 787, 793, citing § 2900.5.) "When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.'" (People v. Buckhalter (2001) 26 Cal.4th 20, 23, citing § 2900.1.) Therefore, we agree with the parties that the trial court erred by not recalculating defendant's custody credits between the date of his original sentencing hearing and his resentencing hearing. (Buckhalter, at p. 29.) "[H]aving modified defendant's sentence on remand, [the court] 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." (Id. at p. 37, italics omitted.)
DISPOSITION
The trial court is directed to prepare and forward to the CDCR an amended abstract of judgment awarding defendant additional custody credits for the period after he was originally sentenced in 2019 to July 14, 2022. In all other respects, the judgment is affirmed.
[*] Before Levy, Acting P. J., Pena, J. and Meehan, J.