Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. SWF015130, Michael S. Hider, Judge.
McDONALD, J.
Charles Cleek appeals a judgment resentencing him on remand after we affirmed his criminal convictions but reversed his sentence in a nonpublished opinion (People v. Cleek (June 9, 2009, D054596) (Cleek I)). On appeal, he contends: (1) the trial court violated his constitutional rights by increasing his original restitution fine from $2,000 to $4,000; and (2) the trial court erred by not calculating and awarding him actual and conduct credits for the period he was in custody following the issuance of Cleek I until his resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In Cleek I, we affirmed Cleek's convictions of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and petty theft (§§ 484, 488) and true findings on certain enhancement allegations. (Cleek I, supra, D054596, at pp. 1-2, 16.) However, we reversed his nine-year sentence because, as the People asserted, the trial court did not impose the required five-year prior serious felony enhancement (§ 667, subd. (a)(1)), which resulted in a legally unauthorized sentence. (Id. at pp. 2, 12-16.) We remanded the matter for resentencing. (Id. at pp. 14-16.)
All statutory references are to the Penal Code.
On remand, the trial court resentenced Cleek, imposing a total term of 14 years in prison, consisting of an eight-year base term for assault with a deadly weapon, a concurrent six-year term for petty theft with a prior theft conviction (both terms were doubled because of his prior strike conviction), a consecutive five-year enhancement for his prior serious felony, and a consecutive one-year enhancement. The court also imposed a $4,000 restitution fine pursuant to section 1202.4, subdivision (b). Cleek timely filed a notice of appeal challenging his new sentence.
DISCUSSION
I
Increase in Restitution Fine
Cleek contends the trial court violated his constitutional rights in resentencing him by increasing his section 1202.4 restitution fine to $4,000 from the $2,000 amount it imposed at his original sentencing. He asserts the increase violated the double jeopardy clause and his due process rights.
A
Section 1202.4, subdivision (b), provides:
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.
"(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony....
"(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted."
"In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200)... minimum, the court shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime...." (§ 1202.4, subd. (d).)
At Cleek's original sentencing, the trial court treated his petty theft offense as a misdemeanor (sentencing him to a 90-day jail term) and imposed a total prison term of nine years for his assault with a deadly weapon offense and section 12022.7, subdivision (a), enhancement. The court also imposed a $2,000 restitution fine under section 1202.4, subdivision (b).
At Cleek's resentencing on remand after Cleek I, the trial court imposed a total term of 14 years in prison, including an eight-year term for his assault conviction and a concurrent six-year term for his petty theft with a prior theft conviction. The court also imposed a $4,000 restitution fine under section 1202.4, subdivision (b).
B
We conclude the trial court properly exercised its discretion and did not violate Cleek's constitutional rights in imposing an increased section 1202.4 fine of $4,000 on resentencing him. In Cleek I, we expressly instructed that we "remand[ed] the matter for resentencing without limitations." (Cleek I, supra, D054596, at p. 14, italics added.) In so doing, we rejected Cleek's assertion that any increase in punishment over his original sentence would violate the double jeopardy clause. (Id. at pp. 13-14.) We explained:
"With regard to unauthorized sentences, the rule against imposition of a harsher sentence on remand for resentencing due to double jeopardy concerns generally does not apply where the original sentence is unauthorized. (See People v. Serrato (1973) 9 Cal.3d 753, 764-765 (Serrato), disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Hill (1986) 185 Cal.App.3d 831 (Hill).) In upholding the imposition of a corrected sentence that was longer than the one originally illegally imposed, the court in Hill, supra, 185 Cal.App.3d 831 stated that '[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme. [Citation.]... The trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal.... [¶]... [A defendant is not entitled to] keep favorable aspects of the first sentence and to eliminate unfavorable aspects.' (Id. at pp. 834-835.)" (Cleek I, supra, D054596, at pp. 13-14, italics added.)
Cleek argues that our language in Cleek I allowing resentencing "without limitations" must be limited to allow an increase only in his total prison term and not in his restitution fine. We decline to adopt his proposed limitation. Restitution fines, like prison terms, are considered punishment for criminal offenses. (People v. Hanson (2000) 23 Cal.4th 355, 361-363.) Therefore, on remand for resentencing after a sentence is reversed for legally unauthorized leniency, a trial court can reconsider all sentencing choices, including prison terms and restitution fines. Accordingly, the trial court in this case was permitted on remand to reconsider all its sentencing choices, including prison terms and restitution fines, without limitation.
Because in Cleek I we reversed the trial court's original sentence for legally unauthorized leniency, the general double jeopardy prohibition against imposing greater punishment on retrial (after reversal of a defendant's original conviction) does not apply. (People v. Hanson, supra, 23 Cal.4th at p. 360, fn. 3 [noting Serrato exception to general rule].)
Furthermore, the trial court implicitly acted within its reasonable discretion by imposing an increased $4,000 restitution fine on resentencing Cleek on remand. A court may determine the amount of a section 1202.4, subdivision (b), fine by multiplying $200 by the number of years of imprisonment the defendant is ordered to serve and again by the number of felony counts of which the defendant is convicted. (§ 1202.4, subd. (b)(2).) At Cleek's original sentencing, the trial court imposed a total term of nine years and treated his petty theft conviction as a misdemeanor, leaving only one felony count (i.e., assault with a deadly weapon). Applying the above formula, the court could have imposed a restitution fine of $1,800 (i.e., $200 x 9 x 1). (§ 1202.4, subd. (b).) Although the trial court imposed a $2,000 fine, Cleek did not challenge the amount of that fine. At Cleek's resentencing on remand, the trial court imposed a total term of 14 years and treated his conviction for petty theft with a prior theft conviction as a felony, resulting in two felony convictions. Applying the same formula, the court could have imposed a restitution fine of $5,600 (i.e., $200 x 14 x 2). (§ 1202.4, subd. (b).) However, it imposed a $4,000 fine, albeit an increase over the $2,000 fine originally imposed. Because on remand the court increased Cleek's sentence from nine to 14 years and treated his conviction for petty theft with a prior theft conviction as a felony offense, the circumstances on resentencing changed adversely to Cleek from the circumstances at his original sentencing. The trial court properly imposed a greater restitution fine of $4,000 on resentencing Cleek.
Contrary to Cleek's apparent assertion, his petty theft offense became a felony offense when the trial court resentenced him on remand, exercising its section 666 discretion to treat his petty theft with a prior theft conviction as a felony and imposing a concurrent six-year term. (§§ 17, subd. (a) [a felony is a crime punishable by imprisonment in the state prison], 666; People v. Stevens (1996) 48 Cal.App.4th 982 ["when a defendant has suffered any of the enumerated theft-related prior convictions, a subsequent petty theft can be a felony. (§ 666.) If a felony punishment is selected by the court, the subsequent petty theft is not merely punished as a felony; it is a felony."].)
Cleek does not cite any apposite cases or otherwise persuade us the increased $4,000 restitution fine violated the double jeopardy clause. People v. Henderson (1963) 60 Cal.2d 482 and People v. Hanson, supra, 23 Cal.4th 355, cited by Cleek, are inapposite because in those cases the defendants had successfully appealed and obtained reversal of their convictions before being retried and given greater punishments on conviction. (Henderson, at pp. 484, 495; Hanson, at pp. 357-358.) In this case, Cleek did not successfully appeal his convictions in Cleek I. Rather, Cleek's appeal was rejected and his convictions were affirmed, while the People were successful in asserting the trial court had imposed a legally unauthorized sentence by not imposing the required five-year term for Cleek's prior serious felony. Neither Henderson nor Hanson involved the exception to the double jeopardy prohibition for unauthorized sentences. As noted above, this case involves that exception. (People v. Serrato, supra, 9 Cal.3d at pp. 764-765; Hanson, at p. 360, fn. 3.) We conclude the trial court's increased $4,000 restitution fine did not violate the double jeopardy clause.
Contrary to Cleek's apparent assertion, he did not suffer a penalty (i.e., increased restitution fine) for invoking his right to appeal his convictions in Cleek I.
Cleek does not cite any apposite cases or otherwise persuade us the increased restitution fine violated his right to due process of law. North Carolina v. Pearce (1969) 395 U.S. 711, cited by Cleek, is inapposite because in that case the defendant had successfully appealed and obtained reversal of his conviction before being retried and given greater punishment on conviction. (Id. at pp. 713-714, 723-724.) In this case, Cleek did not successfully appeal his convictions in Cleek I. Rather, Cleek's appeal was rejected and his convictions were affirmed, while the People were successful in asserting the trial court had imposed a legally unauthorized sentence by not imposing the required five-year term for Cleek's prior serious felony conviction. Accordingly, the increased restitution fine in this case does not support a finding of actual or presumptive vindictiveness or retaliation based on Cleek's exercise of his right to challenge his convictions. (Cf. North Carolina v. Pearce, at pp. 725-726.) We conclude Cleek's right to due process was not violated.
II
Presentence Custody Credits
Cleek contends the trial court erred by not calculating and awarding him actual and conduct credits for the period he was in custody from the issuance of Cleek I until his resentencing (i.e., from June 9, 2009, through November 13, 2009). He argues the court erred by stating the State of California Department of Corrections and Rehabilitation (DCR) would make the determination regarding those credits.
A
A defendant "sentenced to prison for criminal conduct is entitled to credit against his [or her] term for all actual days of [presentence] confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) That confinement or custody includes days spent in jail before sentencing. (§ 2900.5, subd. (a).) Pursuant to section 4019, a defendant may also earn "conduct credit" for good behavior (i.e., compliance with rules and regulations) and satisfactory performance of any labor assigned him or her during presentence custody. (§ 4019, subds. (b), (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3; Buckhalter, at p. 30.)
Section 2900.5 provides, in part:
"(a) In all felony and misdemeanor convictions... when the defendant has been in custody, including, but not limited to, any time spent in a jail, ... [or] prison, ... all days of custody of the defendant, ... including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment.... [¶]... [¶]
"(d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213."
The California Supreme Court has stated that when a trial court imposes a sentence, it "has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing, ' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment." (Buckhalter, supra, 26 Cal.4th at p. 30.) Section 4019, subdivision (a)(4), provides for an award of conduct credits by a trial court "[w]hen a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction, " but not for postsentence confinement in prison. (§ 2900.5, subd. (e); People v. Brown (2004) 33 Cal.4th 382, 405.) "The agency to which the defendant is committed, not the trial court, has the responsibility to calculate and apply any custody credits that have accrued between the imposition of sentence and physical delivery of the defendant to the agency. (§ 2900.5, subd. (e).)" (Buckhalter, at p. 31.)
Section 2900.1 provides: "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is 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." Nevertheless, Buckhalter stated:
"[A]n appellate remand solely for correction of a sentence already in progress does not remove a prisoner from the [Director of Corrections and Rehabilitation's] custody or restore the prisoner to presentence status as contemplated by section 4019. Clearly defendant is not entitled to section 4019 credits for his time in a state penitentiary. Nor could he earn them during the time he was physically housed in county jail to permit his participation in the remand proceedings. Section 4019 does allow such credits for presentence custody in specified city or county facilities. (Id., subd. (a)(4).) But defendant's temporary removal from state prison to county jail as a consequence of the remand did not transform him from a state prisoner to a local presentence detainee. When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status. [Citations.] Prison regulations specify how persons otherwise entitled to earn prison worktime credits under article 2.5 are to accrue such credits while '[r]emoved to out-to-court status.' " (Buckhalter, supra, 26 Cal.4th at pp. 33-34.)
Accordingly, Buckhalter held: "[T]he Court of Appeal correctly concluded that defendant was not entitled to presentence good behavior credit under section 4019 for the time he spent in county jail while awaiting the remand hearing. On the other hand, the Court of Appeal erred in concluding that the trial court had no responsibility whatever to recalculate custody credits upon the remand.... [U]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Buckhalter, at pp. 40-41, italics added.)
B
At Cleek's resentencing on November 13, 2009, Dario Bejarano, Cleek's counsel, stated "[c]redit for time served [by Cleek] was computed at 678 days at the date of the actual [i.e., original] sentencing. I don't know what credits he has now. I have not calculated those. I would ask the Court to ask the probation department to calculate credit. Well, I'm not sure if probation will do it or [DCR] will do it." The trial court replied: "I think once he's been sentenced, you usually come back for resentencing, but once he's been turned over to the [DCR] and they have not turned him back over to the county, as far as I know, that they will make the determination. If there's a problem, we'll just have to revisit that." Accordingly, the court's minutes for that hearing provided: "Court orders: CDC [i.e., DCR] to determine credits."
Nevertheless, the new abstract of judgment issued on November 24, 2009, reflected an award of a total of 678 credits, presumably restating the amount of credits awarded Cleek at his original sentencing, but not including any additional credits earned by Cleek for the period between the issuance of Cleek I and his resentencing on November 13, 2009.
C
Cleek argues the trial court erred by not calculating and awarding him actual and conduct credits for the period he was in custody between the issuance of Cleek I and his resentencing (i.e., from June 9, 2009, through November 13, 2009). The People apparently concede, and we agree, the trial court erred by not awarding Cleek credits for the actual days he was in custody from the date of issuance of Cleek I until his resentencing. Buckhalter is directly on point, stating: "[U]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Buckhalter, supra, 26 Cal.4th at p. 41, italics added.) Accordingly, the trial court should have calculated all days Cleek actually was in custody before sentencing, both before his original sentencing (October 12, 2007) and between the issuance of Cleek I (June 9, 2009) and his resentencing (November 13, 2009), and should have awarded him all such actual days in custody. Furthermore, the court should have reflected that award in the new abstract of judgment. Because the court failed to take those actions, we will remand the matter so that it can do so and issue an amended abstract of judgment reflecting the total amount of those credits.
We reject Cleek's additional assertion that the trial court erred by not awarding him section 4019 conduct credits for the days he was in custody from the date of issuance of Cleek I until his resentencing. Again, Buckhalter is directly on point, stating: "[D]efendant's temporary removal from state prison to county jail as a consequence of the remand did not transform him from a state prisoner to a local presentence detainee. When a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status." (Buckhalter, supra, 26 Cal.4th at p. 33.) Cleek "is not entitled to section 4019 conduct credits for his time in a state penitentiary." (Ibid.) Accordingly, we conclude Cleek "was not entitled to presentence good behavior credit under section 4019 for the time he spent in county jail while awaiting the remand [resentencing] hearing." (Buckhalter, at p. 40.) Nevertheless, Cleek retains the section 4019 conduct credits he earned before his original sentencing on October 12, 2007. Therefore, on remand the trial court's calculation and award of Cleek's presentence custody credits should include those section 4019 conduct credits he earned while in custody before October 12, 2007, and its amended abstract of judgment should reflect that award. In calculating and awarding Cleek section 4019 conduct credits he earned before his original sentencing on October 12, 2007, the trial court should consider whether the amended version of section 4019, effective January 25, 2010, should apply retroactively to that period of presentence custody, which issue is currently pending before the California Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
The case cited by Cleek in support of his section 4019 argument, In re Martinez (2003) 30 Cal.4th 29, is inapposite because it involved a complete reversal of the defendant's conviction, and not merely resentencing on remand as in this case. (Id. at pp. 31-32.) Cleek does not persuade us that he is entitled to section 4019 conduct credits for the period between the issuance of Cleek I and his resentencing.
Because we conclude the trial court erred by not calculating and awarding Cleek credit for the actual days he was in custody between Cleek I and his resentencing, we need not address the merits of his related contention that the trial court violated the separation of powers doctrine by delegating that statutory responsibility to DCR.
DISPOSITION
The judgment is reversed to the extent it omitted an award of presentence custody credits. In all other respects, the judgment is affirmed. The matter is remanded with directions that the trial court conduct further proceedings consistent with this opinion (i.e., for calculation and award to Cleek of presentence custody credits). After the trial court enters its amended judgment, it shall amend its abstract of judgment to reflect that amended judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., IRION, J.