Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF123971A & BF112962A. Lee P. Felice, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Dawson, J.
Appellant, Ashley Nicole Gahagan, pled no contest in case No. BF112962A to second degree burglary (Pen. Code, § 460, subd. (b)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. BF123971A. On appeal, Gahagan contends the court erred by its failure to calculate the actual number of days Gahagan was in custody following the court’s recall of her sentence. We will conclude the court was not authorized to revise Gahagan’s credits because it acted in excess of its jurisdiction when it recalled her sentence. We will direct the trial court to issue a new abstract of judgment that contains the information contained in her original judgment. In all other respects, we will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS
On December 15, 2005, Gahagan and another woman took merchandise from a Kohl’s store in Bakersfield without paying for it. The two women fled from the store parking lot in a car but were arrested a short time later. (Case No. BF112962A)
On February 24, 2006, Gahagan pled no contest to second degree burglary.
On March 24, 2006, the court granted Gahagan probation for five years conditioned on her serving 365 days in local custody.
On July 17, 2008, Gahagan pled no contest to possession of methamphetamine in case No. BF13971A and admitted violating her probation in case No. BF112962 based on her no contest plea. After Gahagan waived a probation report, the court sentenced her to an aggregate 2-year term, the mitigated 16-month term on her burglary conviction and a consecutive 8-month term on her possession of methamphetamine conviction. The court also awarded Gahagan 276 days of presentence credit consisting of 184 days of presentence actual custody credit and 92 days of presentence conduct credit.
On August 6, 2008, Gahagan filed a notice of appeal of the July 17, 2008, judgment.
In a letter to the court dated August 10, 2008, Gahagan alleged she was misadvised as to the consequences of her plea and understood that she was going to be sentenced to concurrent terms.
On August 20, 2008, the court recalled Gahagan’s sentence to allow her to file a motion to withdraw plea. The court also appointed new counsel for Gahagan and set a hearing on the matter.
On September 3, 2008, Gahagan filed a motion to withdraw her plea.
On September 17, 2008, the court heard and denied the motion.
On October 16, 2008, the court resentenced Gahagan to an aggregate term of two years. The court also recalculated Gahagan’s presentence custody credit and awarded her 408 days of presentence custody credit consisting of 272 days of presentence actual custody credit and 136 days of presentence conduct credit.
DISCUSSION
“[A] convicted felon once sentenced, committed, and delivered to prison is not restored to presentence status, for purposes of the sentence-credit statutes, by virtue of a limited appellate remand for correction of sentencing errors. Instead, he remains ‘imprisoned’ [citation] in the custody of the Director [of Prisons] ‘until duly released according to law’ [citation], even while temporarily confined away from prison to permit his appearance in the remand proceedings. Thus, he cannot earn good behavior credits under the formula specifically applicable to persons detained in a local facility, or under equivalent circumstances elsewhere, ‘prior to the imposition of sentence’ for a felony. [Citations.] Instead, any credits beyond actual custody time may be earned, if at all, only under the so-called worktime system separately applicable to convicted felons serving their sentences in prison. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 29-30.) “[Thus,] [w]hen … 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.’ [Citation.]” (Id. at p. 29.)
Section 1170, subdivision (d), in pertinent part, provides:
“When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion... recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.”
A defendant who is returned to the trial court from prison because her sentence is recalled is not returned to presentence status and, thus, not entitled to presentence conduct credit from the time she was originally sentenced until she is resentenced after her sentence is recalled. (People v. Johnson (2004) 32 Cal.App.4th 260, 265.) In these circumstances the trial court must calculate the actual time the defendant has already served, credit that time against the new sentence imposed, and leave the calculation of sentence conduct credit to the Director of Prisons. (Cf. People v. Buckhalter, supra, 20 Cal.4th at pp. 29-30.) Accordingly, for these reasons, and the additional reason discussed below, we conclude the court erred when it calculated Gahagan’s conduct credit for the period encompassing the day after it originally sentenced her through the day it resentenced her after recalling her sentence.
Moreover, in People v. Alanis (2008) 158 Cal.App.4th 1467, the court explained one limitation to the court’s power to recall a sentence:
“In Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, … the court held that section 1170(d) is a statutory exception to the general rule that a court loses jurisdiction upon the filing of an appeal and commencement of the sentence. The court held that under section 1170(d), a court has 120 days to recall a sentence after commitment even if an appeal from the judgment is pending. [Citations.]
“However, the exception provided by section 1170(d) is not without limitations. ‘A court may recall a sentence only for reasons rationally related to lawful sentencing.’ [Citations.]” (People v. Alanis, supra, 158 Cal.App.4th at p. 1475, italics added.)
Here, the court did not recall Gahagan’s sentence for “reasons rationally related to lawful sentencing.” Instead it “recalled” the sentence for the purpose of allowing Gahagan to withdraw her plea, a motion it eventually denied. Thus, the new judgment was null and void because the court acted in excess of its jurisdiction when it recalled Gahagan’s sentence and entered the new judgment. (People v. Alanis, supra, 158 Cal.App.4th at p. 1476.) Further, since the court did not lawfully resentence Gahagan, it follows that: 1) the unauthorized recall of Gahagan’s sentence did not trigger the court’s duty to calculate Gahagan’s actual custody credit from the date it sentenced her through the date it resentenced her, and 2) the court erred when it calculated Gahagan’s actual custody and conduct credit for this period of time. Accordingly, we will direct the trial court to issue an amended abstract of judgment that incorporates the information contained in Gahagan’s original abstract of judgment including presentence custody credit.
See § 1018 [motion to withdraw plea may be filed “at any time before a judgment or within six months after an order granting probation if entry of judgment has been suspended”].
Respondent states that he has learned Gahagan was released from prison on April 14, 2009, and contends that this renders Gahagan’s credit issue moot. We reject this contention because it relies on facts outside the record.
DISPOSITION
The court’s October 16, 2008, judgment in this matter is reversed and its July 17, 2008, judgment is substituted in its stead. The trial court is directed to issue an amended abstract of judgment that contains all the information included in Gahagan’s original abstract of judgment, which was filed on July 21, 2008, and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the July 17, 2008, judgment is affirmed.