Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF009268. Albert J. Wojcik, Judge. Affirmed in part; reversed in part.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
A jury found defendant guilty of two counts of sodomy by force (Pen. Code, § 286, subd. (c)(2)); two counts of attempted rape by force (Pen. Code, §§ 664, 261, subd. (a)(2)); two counts of oral copulation by force (Pen. Code, § 288a, subd. (c)(2)); and one count of sexual penetration by force (§ 289, subd. (a)(1)). Defendant appealed and this court directed the trial court to resentence defendant, which the trial court did. Defendant’s first contention is that the trial court erred by referring the recalculation of his custody credits to the Department of Corrections and Rehabilitation. The People support this contention. Defendant’s second contention is the trial court violated his Sixth Amendment right to a jury trial by imposing consecutive sentences based upon facts that were not found by a jury to be true beyond a reasonable doubt. We agree that the court must recalculate defendant’s custody credits, but do not reach the second contention because the trial court stated neither the legal authority nor the reasons for the sentence imposed. We reverse with directions to resentence defendant and to recalculate his credits.
The abstract of judgment incorrectly notes that defendant pled guilty to the charged offenses.
FACTS
There was one named victim in the case; she suffers from cerebral palsy. Defendant is the victim’s uncle. The victim began living with defendant and his wife in 1984. The victim testified that “[defendant] would touch [her] every day,” beginning in 1986 or 1987. The victim went on to describe various sexual acts that defendant forced her to participate in. The victim testified that defendant sexually attacked her “again and again. A lot of times, it just—many, many times, it just happened all the time . . . .” The victim recalled being sodomized by defendant in 2004 and being attacked by defendant every year that she lived with him.
At the original sentencing hearing, on August 26, 2005, the trial court sentenced defendant to 42 years in state prison and ordered him to pay a $50,000 fine. After analyzing defendant’s appeal, this court directed the trial court to resentence defendant and strike the fine. At the resentencing hearing, the trial court vacated the $50,000 fine and sentenced defendant to the midterms for his crimes. The court ordered all the prison terms to be served consecutively, which totaled 34 years in state prison. At the hearing in 2005, the trial court explained why it chose to impose consecutive terms; however, it did not state its reasons at the hearing in 2007.
The record reflects that a discussion took place in chambers regarding defendant’s sentence. The contents of that discussion were not summarized on the record.
DISCUSSION
A. Custody Credits
Defendant contends the trial court erred by referring the recalculation of his custody credits to the Department of Corrections and Rehabilitation. The People support defendant’s contention. We agree.
After a trial court has modified a defendant’s sentence on remand, it must determine “all actual days defendant ha[s] spent in custody, whether in jail or prison, and award such credits in the new abstract of judgment.” (People v. Buckhalter (2001) 26 Cal.4th 20, 41; see also § 2900.1.)
At defendant’s resentencing hearing, the trial court modified defendant’s sentence and then stated, “[c]redits for time served will be as computed before, and is updated through the Department of Corrections.” The credits listed on defendant’s abstract of judgment dated August 29, 2005, are the same credits listed in the abstract of judgment dated in 2007.
The trial court did not recalculate defendant’s actual time spent in custody, which we conclude was an error.
B. Consecutive Terms
In his opening brief, defendant refers to the trial court’s failure to state reasons or reference statutory authority when imposing consecutive sentences at defendant’s resentencing hearing. However, defendant does not argue that this was a procedural error; rather, defendant contends the imposition of consecutive terms violated his right to a jury trial because the trial court relied upon facts not found by a jury to be true beyond a reasonable doubt when imposing consecutive terms. We cannot meaningfully review defendant’s contention due to the trial court’s failure to refer to any reasons or statutory authority when imposing consecutive terms because any attempt to analyze whether the jury decided the facts the trial court relied upon in its sentencing decisions would require speculation on our part.
“A consecutive sentence requires the sentencing judge to articulate a statement of reasons. [Citations.]” (People v. Neal (1993) 19 Cal.App.4th 1114, 1117; see also Cal. Rules of Court, rule 4.406(a), (b)(5).) “The manifest purpose of a statement of reasons is simply to allow for a meaningful appellate review of the exercise of discretion by the trial court. [Citations.]” (People v. Thomas (1990) 218 Cal.App.3d 1477, 1489.) As this court has previously noted, “[i]n . . . resentencing—just as in sentencing—the trial court must state reasons.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1770.) “[I]t is well settled that when a case is remanded for resentencing after an appeal, the defendant is entitled to ‘all the normal rights and procedures available at his original sentencing’ [citations] . . . .” (Dix v. Superior Court (1991) 53 Cal.3d 442, 460.)
We recognize that a court’s failure to state reasons for selecting consecutive sentences is usually subject to a harmless error analysis. (People v. Osband (1996) 13 Cal.4th 622, 729.) However, in this case, the record lacks any indication as to what the authority for the sentence was; thus, we do not know to what sentencing choice the harmless error analysis should be applied. We are able to infer that the court most likely sentenced defendant pursuant to section 667.6 because full term consecutive sentences were imposed; however, it is unclear whether the trial court applied subdivision (c) or (d).
We express no opinion as to which section of the Penal Code the trial court may apply when resentencing defendant; however, the trial court should note the issues raised by our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823, regarding the imposition of consecutive terms.
Consequently, we must reverse, because the lack of reasoning to support the trial court’s decision to impose consecutive terms causes any inquiry on our part to be so “uncertain as to render meaningful analysis impossible.” (People v. Coffey (1967) 67 Cal.2d 204, 214.)
DISPOSITION
The sentence is reversed. The trial court is directed to resentence defendant in accordance with our previous opinion in the case, No. E038826. Further, the court is directed to recalculate defendant’s credits for his actual time in custody and amend the abstract of judgment accordingly. The superior court clerk is directed to correct the abstract of judgment to reflect that defendant was found guilty by a jury, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.