Opinion
F082304
10-05-2021
THE PEOPLE, Plaintiff and Respondent, v. BRANDON CHARLES FAN, Defendant and Appellant.
Steven A. Torres, 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, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18908758. Houry A. Sanderson, Judge.
Steven A. Torres, 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, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In both this matter and the companion appeal in People v. Fan, case No. F079276 (the Companion Appeal), a jury convicted appellant Brandon Charles Fan of the following six charges:
(1) Corporal injury to spouse (Pen. Code, § 273.5, subd. (a); count 1);
Further undesignated statutory references are to the Penal Code.
(2) Attempted criminal threats (§§ 664/422, subd. (a); count 2);
(3) Dissuading a witness (§ 136.1, subd. (b)(1); count 3);
(4) Child abduction (§ 278.5, subd. (a); count 4);
(5) Child abduction (§ 278.5, subd. (a); count 5); and
(6) Disobeying a domestic relations court order (§ 273.6, subd. (a); count 8).
The jury found appellant not guilty of child endangerment (§ 273a, subd. (b); count 6) and making criminal threats (§ 422, subd. (a); count 9). Prior to the start of jury deliberations, the prosecution dismissed the charge in count 7, disobeying a domestic relations court order.
In 2019, the trial court sentenced appellant to an aggregate prison term of five years, consisting of the middle term of three years in count 1, and consecutive terms of eight months (one-third subordinate middle terms of two years) in counts 3, 4 and 5. For counts 2 and 8, both misdemeanors, the court imposed time served.
In 2020, the California Department of Corrections and Rehabilitation (CDCR) alerted the trial court that a sentencing error existed. In January 2021, the court resentenced appellant. He again received an aggregate sentence of five years, but his sentence was modified. He again received the middle term of three years in count 1, but he also received a full consecutive subordinate middle term of two years in count 3. Concurrent subordinate terms of eight months were imposed in counts 4 and 5.
The trial court had failed to impose a full consecutive subordinate sentence in count 3 for dissuading a witness. (See § 1170.15 [a subordinate term for each consecutive felony offense under § 136.1 “shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed”.)
In the present appeal, we agree with the parties that resentencing is required because the trial court did not understand the scope of its sentencing discretion. At the 2021 resentencing, the trial court failed to provide appellant with a full sentencing hearing. The court also failed to recalculate appellant's custody credits. We vacate appellant's sentence and remand this matter for a full resentencing.
In the Companion Appeal, we also agree with the parties that appellant was improperly convicted twice for child abduction (§ 278.5, subd. (a)) in counts 4 and 5. In the Companion Appeal, we direct the trial court to strike either the conviction in count 4 or the conviction in count 5, and resentence appellant accordingly.
BACKGROUND
The issues in the present appeal deal only with sentencing. As such, we do not summarize the facts which support appellant's convictions. In the Companion Appeal, however, we provide a summary of the material trial facts.
DISCUSSION
I. The Trial Court Erred When It Failed To Provide Appellant With a Full Sentencing Hearing at the 2021 Resentencing.
The parties agree that the trial court erred when it failed to provide appellant with a full resentencing after CDCR alerted the court of the sentencing error. We agree with the parties that the court did not understand its sentencing discretion and a remand is required.
In its 2020 letter to the court, CDCR indicated that appellant's sentence needed correction because he should not have received a one-third subordinate term of eight months in count 3. Instead, he was required to receive a full subordinate middle term of two years for the crime of dissuading a witness (§ 136.1, subd. (b)(1)). (See § 1170.15.) CDCR correctly notified the court in the letter that, if the sentence needed correction, the court was entitled to reconsider all sentencing choices. CDCR cited People v. Hill (1986) 185 Cal.App.3d 831 (Hill) for this proposition.
At the 2021 resentencing, appellant asked the trial court to consider placing him on probation rather than return him to prison. Appellant also asked the court to consider his postconviction behavior that may reflect favorably for him during resentencing. The court responded it was “not prepared to do any resentencing other than correcting any errors that may have been part of the original Probation recommendation and not picked up by either counsel and or the Court.” The court later indicated it would not consider appellant's postconviction behavior during this hearing.
The court's comments demonstrate it did not understand the scope of its sentencing discretion when appellant was resentenced in 2021. Section 1170 permits a trial court to recall a sentence when such action is recommended, in part, by the CDCR. (§ 1170, subd. (d)(1).) When CDCR makes a recommendation for resentencing, the trial court may recall the sentence and resentence the defendant as if he or she is being sentenced anew; however, the new sentence may not exceed the previously imposed sentence. (Ibid.) In Hill (the case which CDCR cited in its letter to the trial court), it was held that, when a case is remanded for resentencing, the entire sentence is again open for consideration. (Hill, supra, 185 Cal.App.3d at p. 834.)
Respondent asserts that the trial court did more than correct a mere clerical error, and, instead, the court reconfigured appellant's sentence. We agree with respondent's view of this record. At the 2021 resentencing, the court imposed a two-year full subordinate middle term in count 3 to be served consecutively, and it deemed that the subordinate terms in counts 4 and 5 would run concurrently. As respondent notes, the court effectively recalled and resentenced appellant under section 1170, subdivision (d)(1), but it failed to follow that section's mandate that it must resentence appellant as if he had not previously been sentenced. Thus, remand for a new sentencing hearing is required because the court proceeded at the 2021 resentencing under the erroneous assumption it lack discretion to conduct a full sentencing hearing. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [a new sentencing hearing is required if a trial court proceeds with sentencing on the erroneous assumption it lacks discretion]; see also People v. Warren (1986) 179 Cal.App.3d 676, 695 [remand necessary when trial court failed to consider defendant's postconviction behavior at resentencing].)
Merely correcting a clerical sentencing error does not amount to an exercise of judicial discretion. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1474.)
At the new sentencing hearing, the court may consider appellant's postconviction factors, including, but not limited to, his “disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced [appellant's] risk for future violence, and evidence that reflects that circumstances have changed since [appellant's] original sentencing so that [appellant's] continued incarceration is no longer in the interest of justice. Credit shall be given for time served.” (§ 1170, subd. (d)(1).)
We vacate appellant's sentence and remand this matter for a full resentencing.
II. Appellant's Custody Credits Must Be Updated When He Is Resentenced.
The parties agree, as do we, that the trial court failed to update appellant's custody credits when he was resentenced in 2021. The first amended abstract of judgment reflects the same custody credits as the original abstract of judgment. This was error. When resentenced, appellant is entitled to credit for his time served. (§ 1170, subd. (d)(1).) In addition, section 2900.1 provides that a defendant is entitled to credit for any portion of a sentence served which is subsequently declared invalid or which is modified. Such time must be credited “upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (§ 2900.1.)
We direct the court to calculate and update appellant's custody credits, and reflect those on an amended abstract of judgment.
DISPOSITION
Appellant's sentence is vacated and this matter is remanded for resentencing. The trial court shall conduct a full sentencing hearing in conformity with section 1170, subdivision (d)(1). In addition, the court shall calculate and update appellant's custody credits. In conformity with the disposition in the Companion Appeal (F079276), the court shall also strike either the conviction in count 4 or the conviction in count 5. Appellant shall be resentenced. The court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. In all other respects, the judgment is affirmed.
[*] Before Levy, Acting P. J., Franson, J. and Peña, J.