Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA245455, Lance A. Ito, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
We previously affirmed the judgment of conviction of defendant and appellant James Collier (defendant) (Court of Appeal case number B194336) for one count of first degree murder; six counts of attempted willful, deliberate, premeditated murder; one count of attempted murder; and one count of shooting at an inhabited dwelling. We also affirmed defendant’s sentence of life in prison without the possibility of parole for his first degree murder conviction and the determinate one year, eight month sentence for his conviction for shooting at an inhabited dwelling. We remanded for resentencing as to defendant’s remaining convictions. After the trial court resentenced defendant, defendant filed this appeal contending that the trial court erred in failing to strike a parole revocation restitution fine pursuant to Penal Code section 1202.45, and in failing to recalculate his presentence credit. In defendant’s reply brief, defendant appropriately concedes that the parole restitution revocation fine was properly imposed under People v. Brasure (2008) 42 Cal.4th 1037, 1075. We order the abstract of judgment amended to reflect 1,915 days of actual custody credit.
Defendant also states in his opening brief that the trial court orally imposed an improper term of life without the possibility of parole for defendant’s conviction of attempted murder in count 4 rather than the correct sentence of life with the possibility of parole. (Pen. Code, § 664, subd. (a).) Defendant states that because the minute order and abstract of judgment reflect the correct sentence, he does not request this court to take any action. We note that in initially discussing the sentence for this count, the trial court stated that the sentence would be “life with parole.”
Because this appeal concerns sentencing issues following a remand for resentencing, we dispense with a recitation of the facts underlying defendant’s offenses.
I. Defendant’s Parole Revocation Restitution Fine
In our prior opinion, we ordered the abstract of judgment modified to strike the $10,000 parole revocation restitution fine pursuant to Penal Code section 1202.45. On remand, after initially stating its intention to strike the parole revocation restitution fine the trial court did not strike the fine in its oral pronouncement of sentence. Likewise, the trial court’s minutes do not reflect that the trial court struck this fine. The abstract of judgment, however, reflects a parole revocation restitution fine of $10,000.
In his opening brief, defendant asserts that the matter should again be remanded to the trial court with directions to the trial court to strike the parole revocation restitution fine under Penal Code section 1202.45. In its respondent’s brief, respondent cites People v. Brasure, supra, 42 Cal.4th 1037, for the proposition that a parole revocation restitution fine must be imposed when a defendant is sentenced to a determinate term even though the defendant’s overall sentence does not contemplate a period of parole. In People v. Brasure, the Supreme Court held that a parole revocation restitution fine under Penal Code section 1202.45 was mandatory for a defendant sentenced to death because the defendant also was sentenced to a determinate term under Penal Code section 1170. (People v. Brasure, supra, 42 Cal.4th at p. 1075.) Defendant appropriately concedes this issue in his reply brief.
II. Defendant’s Presentence Credit
Defendant contends that the trial court erred in failing to recalculate his presentence credit when he was resentenced. Respondent argues that we must reject defendant’s argument because the record does not reflect the trial court’s failure to recalculate defendant’s presentence credit, and, even if defendant can demonstrate error, defendant should have first brought this claim in the trial court. (Pen. Code, § 1237.1.)
Defendant moved to augment the clerk’s transcript on appeal to include the abstract of judgment entered after defendant’s initial sentencing on September 25, 2006, in order to demonstrate the trial court’s error in failing to recalculate his presentence credit. We grant that motion. Because the issue regarding defendant’s presentence credit is not the sole issue on appeal, Penal Code section 1237.1 does not bar defendant from asserting that error even though he has not first raised the issue in the trial court. (People v. Acosta (1996) 48 Cal.App.4th 411, 427; People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12.)
“[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, 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.” (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) At defendant’s initial sentencing on September 25, 2006, the trial court awarded defendant 1,262 days of presentence credit. At defendant’s resentencing on remand on July 9, 2008, the trial court did not recalculate defendant’s presentence credit; the abstract of judgment entered after defendant’s resentencing reflects 1,262 days of presentence credit. In addition to the 1,262 days of presentence credit the trial court awarded defendant at defendant’s initial sentencing, defendant was entitled to credit for the additional time he spent in custody prior to his resentencing. (Ibid.) The trial court’s failure to recalculate defendant’s presentence credit was error.
As stated, defendant initially was sentenced on September 25, 2006, and resentenced on July 9, 2008. Defendant thus was entitled to actual custody credit for the 653 days from September 25, 2006, to and including July 9, 2008. (People v. Buckhalter, supra, 26 Cal.4th at p. 29.) Defendant was not entitled to conduct credit. (Pen. Code, § 2933.2; People v. Wheeler (2003) 105 Cal.App.4th 1423, 1431-1432.) The abstract of judgment is ordered amended to reflect a total of 1,915 days of actual custody credit.
DISPOSITION
The abstract of judgment is ordered amended to reflect a total of 1,915 days of actual custody credit. Defendant’s sentence is otherwise affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.