Opinion
B298965
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. VON EARLSAL COWAN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA132673) APPEAL from judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed and remanded with directions. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
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Von Earlsal Cowan appeals from the judgment entered after remand for resentencing. Appellant and respondent agree that appellant is entitled to postsentence custody credit for all actual days he served prior to resentencing, and that several errors in the abstract of judgment must be corrected. We remand with directions to recalculate appellant's custody credit and correct the abstract of judgment.
BACKGROUND
Appellant was convicted following a jury trial on four counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1); counts 1, 2, 6, 22); two counts of simple kidnapping (§ 207; counts 14, 16); and 12 counts of robbery (§ 211; counts 3, 4, 7, 8, 9, 11, 12, 15, 17, 19, 24, 25). The jury found true with respect to all counts that appellant personally used a firearm. (§ 12022.53, subd. (b).) Following a motion for a new trial, the trial court reduced four of the kidnapping convictions to misdemeanor false imprisonment. (§ 236; counts 6, 14, 16, 22.) Appellant was sentenced on July 11, 2017. The trial court imposed an aggregate sentence of 540 years to life, consisting of 12 consecutive 45-years-to-life sentences (counts 1, 2, 3, 4, 7, 8, 9, 11, 12, 15, 17, 19). The remaining six counts (counts 6, 14, 16, 22, 24, 25) were stayed pursuant to section 654.
Undesignated statutory references are to the Penal Code.
Two of the robbery counts, 24 and 25, were stayed because they involved the same victims as counts 1 and 2.
Appellant appealed the judgment of conviction. On appeal, we reversed the two counts of kidnapping to commit robbery (counts 1 and 2) and ordered them reduced to false imprisonment in violation of sections 236 and 237, subdivision (a). In all other respects the jury's verdict was affirmed. The case was remanded for resentencing, at which time the trial court was ordered to exercise its discretion in determining (1) whether to strike any of the firearm enhancements pursuant to section 12022.53, subdivision (h), and (2) whether to strike any of the enhancements for prior serious felony convictions pursuant to section 1385, subdivision (b)(1), as amended effective January 1, 2019. (People v. Cowan (Dec. 10, 2018, B285475) [nonpub. opn.].)
On remand the trial court reduced the kidnapping to commit robbery counts (counts 1 and 2) to felony false imprisonment by force or violence (§ 237, subd. (a)) and resentenced appellant to 16 months on each count, stayed pursuant to section 654. As a result, counts 24 and 25 no longer qualified to be stayed under section 654, and the trial court sentenced appellant on each count to 25 years to life plus 10 years for the two prior serious felonies (§ 667, subd. (a)(1)), while exercising its discretion to strike the 10-year firearm enhancements on these counts pursuant to section 12022.53, subdivision (h). The trial court also stayed the 10-year prior serious felony enhancements (§ 667, subd. (a)(1)) on counts 1 and 2 because it was imposing those enhancements on counts 24 and 25.
The trial court imposed an aggregate sentence of 520 years to life, which consisted of 12 consecutive sentences of 25 years to life for 300 years to life, plus 100 years for the firearm enhancements under section 12022.53, subdivision (b), and 120 years for the prior serious felonies under section 667, subdivision (a)(1). The trial court ordered custody credits to remain the same as previously calculated: 1,337 days actual, plus 200 days of presentence conduct credit, for total custody credits of 1,537 days.
On February 21, 2018, appellant's credits had been recalculated as of July 11, 2017.
Appellant immediately filed a notice of appeal.
Thereafter, on August 27, 2019, the trial court received appellant's motion to calculate actual custody credits and correct the abstract of judgment. Appellate counsel sent to the trial court an addendum to the motion on September 18, 2019, and a follow-up letter on November 13, 2019, requesting a ruling on the motion. The trial court did not rule on the motion.
DISCUSSION
I. Appellant Is Entitled to Custody Credit for All Actual Days He Served Prior to Resentencing
Appellant correctly contends that the trial court should have recalculated his custody credits when resentencing appellant on June 6, 2019, and thus erred in failing to give him any postsentence actual custody credit.
"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; § 2900.1 [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"].) Thus, when the trial court modifies a defendant's sentence on remand, it is required to recalculate custody credits and "in its new abstract of judgment, to credit [the defendant] with all actual days he had spent in custody, whether in jail or prison, up to that time." (Buckhalter, at p. 37.)
Appellant is entitled to postsentence custody credit for the actual days he spent in custody up to resentencing on June 6, 2019. The matter is thus remanded to the trial court to determine the number of days appellant has spent in actual custody, both presentence and postsentence, credit those days to appellant, and amend the abstract of judgment to reflect appellant's total credits.
II. Errors in the Sentencing Minute Order and Abstract of Judgment Must Be Corrected
Neither a court's minute order nor the abstract of judgment constitutes the judgment of conviction. Rather, it is the trial court's oral judgment that controls when a discrepancy exists, and neither the minute order nor abstract may add to or modify the judgment it purports to digest or summarize. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Thus, "[i]f the minute order or abstract of judgment is different from the oral pronouncement of judgment, the oral pronouncement controls." (People v. Mullins (2018) 19 Cal.App.5th 594, 612.)
Numerous discrepancies appear between the sentence orally imposed by the trial court on the one hand, and the sentencing minute order and the abstract of judgment on the other hand. The sentencing minute order and the abstract of judgment must be corrected to reflect the trial court's oral pronouncement of sentence.
First, the abstract of judgment incorrectly reflects that appellant was convicted of "kidnapping to commit another crime" (§ 209, subd. (b)(1)) in counts 1 and 2. In fact, on remand the trial court reduced these counts to felony false imprisonment in violation of section 237, subdivision (a). The trial court is directed to correct the abstract of judgment to reflect convictions of felony false imprisonment (§ 237, subd. (a)) on counts 1 and 2.
Second, according to the abstract of judgment, the trial court imposed and stayed the 10-year firearm enhancement under section 12022.53, subdivision (b) on counts 1 and 2. This is incorrect. The trial court stated that it was not imposing the firearm enhancements on counts 1 and 2 because section 12022.53 does not apply to felony false imprisonment. The section 12022.53, subdivision (b) enhancements on counts 1 and 2 must therefore be stricken from the abstract of judgment.
Third, the abstract of judgment incorrectly reflects that the trial court imposed section 12022.53, subdivision (b) enhancements on counts 24 and 25. This error also appears in the sentencing minute order. However, the trial court exercised its discretion under section 12022.53, subdivision (h) to strike the firearm enhancements on counts 24 and 25. The section 12022.53, subdivision (b) enhancements as to counts 24 and 25 reflected in the abstract of judgment and the minute order must be stricken.
The trial court later indicated it would stay these enhancements. But the trial court had no authority to stay an enhancement under section 12022.53. (§ 12022.53, subd. (h) ["the court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section"].) Indeed, " '[u]nless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed; to do so is an illegal sentence.' " (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) --------
Fourth, appellant was convicted in counts 6, 14, 16, and 22 of misdemeanor false imprisonment (§ 236), and the trial court stayed the sentences on these counts. However, the abstract of judgment omits any reference to these counts or the stayed sentences. The trial court is directed to correct the abstract of judgment to reflect the convictions and stayed sentences on counts 6, 14, 16, and 22.
Fifth, the abstract of judgment incorrectly reflects an aggregate sentence of 540 years to life. However, as pronounced by the court, appellant's sentence consists of 12 consecutive sentences of 25 years to life on counts 3, 4, 7, 8, 9, 11, 12, 15, 17, 19, 24, and 25 for 300 years to life, plus 100 years for the firearm enhancements under section 12022.53, subdivision (b) on counts 3, 4, 7, 8, 9, 11, 12, 15, 17, and 19, and 120 years for the prior serious felonies under section 667, subdivision (a)(1) imposed on counts 3, 4, 7, 8, 9, 11, 12, 15, 17, 19, 24, and 25. The trial court is directed to correct the abstract of judgment to reflect the aggregate sentence of 520 years to life.
Finally, as set forth above, the trial court is directed to recalculate appellant's custody credits and modify the abstract of judgment accordingly.
DISPOSITION
The matter is remanded and the trial court directed to:
(1) Correct the abstract of judgment to reflect convictions of felony false imprisonment (§ 237, subd. (a)) on counts 1 and 2;
(2) Strike the section 12022.53, subdivision (b) enhancements on counts 1 and 2 from the abstract of judgment;
(3) Strike the section 12022.53, subdivision (b) enhancements as to counts 24 and 25 from the abstract of judgment and the sentencing minute order;
(4) Correct the abstract of judgment to reflect the convictions and stayed sentences on counts 6, 14, 16, and 22;
(5) Correct the abstract of judgment to reflect the aggregate sentence of 520 years to life; and
(6) Recalculate appellant's postsentence custody credit to include all actual days appellant served in custody up to the time of resentencing.
The trial court is further directed to file and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
CHAVEZ, J.
HOFFSTADT, J.