Opinion
F050179
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. ALEX CAVAZOS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.
In December 2003, a jury convicted appellant Alex Cavazos of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine (§ 11377, subd. (a)), resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). In a separate proceeding, the court found true allegations that appellant had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)) and had suffered four prior convictions of drug-related offenses, within the meaning of section 11370.2, subdivision (a).
Except as otherwise indicated, all further statutory references are to the Health and Safety Code.
In February 2004, Cavazos moved for a new trial. In March 2004, the court denied the motion and imposed a prison term of 17 years, which included three years on each of the four prior drug conviction enhancements and one year on each of the two prior prison term enhancements. Cavazos appealed.
On appeal, in September 2005, this court struck one prior drug conviction enhancement and one prior prison term enhancement; held that the remaining prior drug conviction enhancements were not properly imposed under section 11370.2, subdivision (a), but were proper under subdivision (c) of section 11370.2; and remanded the matter to the trial court with directions to rehear the motion for a new trial. We further held as follows. If the motion was granted, the judgment would be reversed. However, if the motion was denied, the judgment would be affirmed, with the exception that the court would be directed to prepare a modified abstract of judgment correcting the various sentencing errors.
We have previously taken judicial notice of our nonpublished opinion in appellants earlier appeal: People v. Cavazos (September 16, 2005, F045358). (Evid. Code, §§ 452, subd. (d); 459.)
On remand, the trial court denied the motion for new trial. The instant appeal followed. Thereafter, on July 10, 2006, the trial court issued a modified abstract of judgment correcting the errors specified in this courts opinion in appellants earlier appeal.
We take judicial notice of the modified abstract of judgment filed July 10, 2006. (Evid. Code, §§ 452, subd. (d); 459.)
Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant, apparently in response to this courts invitation to submit additional briefing, has submitted a letter in which he argues, as best we can determine, that the evidence was insufficient to support his convictions. However, the time for appealing those convictions has long since passed, and therefore we need not address this contention.
We adopt and incorporate by reference the factual summary in our opinion in People v. Cavazos, supra, F045348.
Upon independent review of the record, we have determined the following. The modified abstract of judgment does not indicate appellant received actual time credits for the number of days of his custody from March 3, 2004, the date he was initially sentenced, to and including March 8, 2006, the date of resentencing. This period consists of 736 days. The failure to include actual time credits for this period was error. "Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30, emphasis added.) In addition, a detainee or inmate may earn what are commonly called "conduct credits," i.e., "credits for good behavior and participation in qualifying work programs to shorten the term of sentence . . . ." (People v. Johnson (2004) 32 Cal.4th 260, 263.) In Buckhalter, our Supreme Court held "the trial court had no responsibility whatever to recalculate custody credits upon remand." (Buckhalter, supra, 26 Cal.4th at p. 41, emphasis added.) But the court also held as follows: "[T]he trial court, having modified defendants 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. [T]he courts duty in this respect arose from section 2900.1, which specifies that when a sentence is modified while in progress, the `time already served `shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts. " (Id. at p. 37.) In the instant case, as indicated above, the court modified appellants sentence on remand. Accordingly, under Penal Code section 2900.1, the court was required to award actual time credits as set forth above. (Buckhalter, supra, 26 Cal.4th at p. 37.)
We have further concluded, following our independent review of the record, that no other reasonably arguable legal or factual issues exist.
DISPOSITION
The trial court is directed to issue a modified abstract of judgment reflecting actual time credits of 736 days, for the period from March 3, 2004, to and including March 8, 2006. In all other respects, the judgment is affirmed.