Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA041930, Richard H. Kirschner, Judge.
Richard L. Fitzer for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
On December 4, 2009, we rendered our decision in case No. B211252, a prior appeal in this matter from the judgment entered upon Antrero Fuller’s convictions by guilty plea of two counts of second degree robbery (Pen. Code, § 211), three counts of false imprisonment by violence (§ 236), and one count of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)). Appellant had also admitted having suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court had sentenced appellant to an aggregate prison term of 14 years four months. Our prior decision struck a five-year prior serious felony enhancement within the meaning of section 667, subdivision (a) and otherwise affirmed the judgment and remanded for resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant now appeals from the judgment entered upon his resentencing after remand. He contends that the trial court erroneously failed to recalculate his total presentence credits as required by People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter).
We dismiss this appeal as moot.
PROCEDURAL BACKGROUND
Appellant was convicted by plea of two counts of second degree robbery, three counts of false imprisonment by violence and one count of dissuading a witness. At the original sentencing hearing, the trial court awarded him 553 days actual custody credits and 82 days conduct credits, for a total of 635 days of presentence credits.
On the prior appeal in this matter, we struck a five-year, prior serious felony enhancement and remanded for resentencing.
At the resentencing hearing, the trial court sentenced appellant to an aggregate sentence of 14 years. It calculated appellant’s presentence credits as 19 days actual custody credits plus two days conduct credits.
Appellant filed a timely notice of appeal. Before the filing of appellant’s opening brief, he filed a motion in the superior court seeking to amend the abstract of judgment to reflect 498 days of additional actual custody credits for his incarceration between the time of his initial sentencing and resentencing. When briefing in this appeal was completed, the motion had not yet been ruled upon.
DISCUSSION
Appellant’s sole contention is that the trial court on resentencing failed to award him the additional actual custody credits, between the time of his initial sentencing and the time of his resentencing, to which he was entitled under Buckhalter. He argues, quoting Buckhalter, that “[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.” (Buckhalter, supra, 26 Cal.4th at p. 29.) Consequently, he claims he is entitled to an additional 498 days of actual custody credits, for a total presentence credits of 1, 051 days, plus 82 days of conduct credits previously awarded. In addition, he claims that the trial court must order the Department of Corrections and Rehabilitation (Department) to calculate the conduct credits appellant earned while in custody between the two sentencing dates.
In response to appellant’s opening brief, the People filed a letter indicating that they agreed with appellant that his presentence credits had to be recalculated under Buckhalter.
On February 4, 2011, the trial court finally ruled on appellant’s long-pending motion to correct his presentence credits. Consistent with appellant’s request here, the trial court ordered his presentence custody credits to be amended to reflect 1, 051 days of actual custody credits and 82 days of conduct credits, for a total of 1, 133 days of presentence credits. It further ordered the Department to calculate the amount of conduct credits appellant earned between his two sentencing dates of July 28, 2008, and December 7, 2009.
Pursuant to Evidence Code section 452, subdivision (d), we take judicial notice of the February 4, 2011, minute order of the superior court ordering additional presentence credits.
The superior court ruling has rendered this appeal moot. The relief which appellant seeks here has now been given by the trial court, thereby rendering any ruling on this appeal to be without practical effect. It is settled that an action involving only abstract or academic questions of law cannot be maintained. (People v. DeLong (2002) 101 Cal.App.4th 482, 486, quoting In re Dani R. (2001) 89 Cal.App.4th 402, 404 [“‘[A]n action that originally was based on a justifiable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed’”].)
DISPOSITION
The appeal is dismissed as moot.
We concur: BOREN, P. J., CHAVEZ, J.