Opinion
C099283
08-09-2024
THE PEOPLE, Plaintiff and Respondent, v. DERRICK O'NEAL HENDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 18FE023239)
BOULWARE EURIE, J.
On remand from this court, the trial court resentenced defendant Derrick O'Neal Henderson, reducing his sentence from 23 years to 14 years in prison by selecting middle term sentences rather than the upper term sentences previously imposed. Henderson appeals, arguing that: (1) the trial court erred by selecting the middle term sentence for the principal term because he experienced childhood trauma, which presumptively entitled him to a lower term sentence and (2) the trial court failed to update Henderson's actual custody credits. The People contend the trial court did not err in selecting the middle term sentence but concede that the trial court failed to update Henderson's custody credits. We agree with the People. We will affirm the judgment and remand for the trial court to update Henderson's custody credits.
BACKGROUND
In 2019, Henderson was sentenced to 23 years in prison, including an upper term sentence of nine years in prison for the principal term, assault with a semiautomatic firearm, and an upper term sentence of 10 years for the related firearm enhancement. The trial court awarded custody credits for a total of 396 days. Henderson appealed, and this court remanded for the trial court to resentence him applying the amended version of Penal Code section 1170, which took effect January 1, 2022. (People v. Henderson (Jan. 20, 2022, C090899) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
On remand, Henderson argued that the court should not impose the upper term sentence because section 1170, subdivision (b) requires a jury to find aggravating factors true in order for the court to impose the upper term sentence. A jury had not found any aggravating factors true, so the court could only consider Henderson's prior convictions. Henderson contended his prior convictions were not serious enough to justify an upper term sentence.
Henderson also argued the court should impose the lower term under section 1170, subdivision (b)(6) because he had experienced "childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." To establish his childhood trauma, Henderson presented a probation report that was initially filed in 1998 after the juvenile court found he committed robbery and felony false imprisonment. According to this probation report, Henderson's aunt reported that Henderson's mother "failed to provide him with basic care" and was "very unstable" which led to Henderson experiencing behavioral problems at a young age. Henderson "had suffered physical abuse at the hands of [his] mother[']s, then, husband," and his mother and her husband used drugs. Henderson's grandmother believed that his childhood experiences under his mother's care "placed [him] at a disadvantage," but he was not" 'bright' enough to plan and carry out a robbery." The 1998 probation report did not address whether Henderson's childhood trauma contributed to the commission of any offenses, but defense counsel argued that his trauma "undoubtedly" contributed to the commission of the assault with a semiautomatic firearm in the present case.
Finally, Henderson asked the court to strike the firearm enhancement attached to the principal count of assault with a semiautomatic firearm.
The People submitted a certified record of Henderson's prior convictions and argued that his record justified upper term sentences for the assault and the firearm enhancement. Though acknowledging that some of Henderson's prior drug offenses would not be considered as serious today, the People emphasized that Henderson's criminal history was lengthy, and his most recent prior convictions were for the sale of cocaine. Accordingly, the People contended that Henderson "does not appear to have really left his life of crime behind at all."
The trial court ruled out upper term sentences, finding Henderson's prior certified convictions were not "violent or serious or that numerous." But the court did not "see any nexus" between Henderson's childhood trauma and the present offense to justify lower term sentences. Accordingly, the court imposed the middle term sentence for assault with a semiautomatic firearm and the middle term sentence for the firearm enhancement, which reduced Henderson's sentence from 23 years to 14 years in prison. The court did not update Henderson's credit for time served from the date of the original execution of his sentence, instead noting that the Department of Corrections and Rehabilitation would do so. Nevertheless, the abstract of judgment the court prepared increased Henderson's actual time served from 345 days to 455 days. Henderson timely appealed.
DISCUSSION
Henderson makes two arguments on appeal: (1) he was entitled to a lower term sentence for assault with a semiautomatic firearm because his childhood trauma contributed to the assault and (2) the trial court failed to update his actual custody credits. The People respond that the trial court did not err in imposing the middle term sentence but concede that the trial court miscalculated Henderson's custody credits after modifying his sentence. We conclude that the trial court did not abuse its discretion by imposing the middle term sentence. We agree with the parties that the trial court improperly calculated custody credits and will remand for the court to correct the abstract of judgment.
A. Middle Term Sentence
Henderson argues the court abused its discretion by imposing the middle term sentence for assault with a semiautomatic firearm because he suffered psychological trauma as a child that contributed to the commission of the offense, and this trauma entitles him to a lower term sentence under section 1170, subdivision (b)(6). We conclude that this argument lacks merit because Henderson did not offer any evidence that the trauma he experienced contributed to the commission of the offense.
Under section 1170, subdivision (b)(6), the court must impose the lower term sentence if a defendant has experienced childhood trauma that "was a contributing factor in the commission of the offense." (§ 1170, subd. (b)(6).) Henderson contends that the physical and psychological trauma he experienced during childhood contributed to him committing the offense at issue here, and the trial court abused its discretion by finding otherwise. "A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard . . . or bases its decision on express or implied factual findings that are not supported by substantial evidence." (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
After considering the 1998 probation report, the trial court found that "there may be some childhood trauma," but it did not "see any nexus" between the trauma and the crimes committed. We agree with the trial court that none of the evidence presented to the court establishes that Henderson's childhood trauma "was a contributing factor in the commission of the" assault. (§ 1170, subd. (b)(6).) Section 1170, subdivision (b)(6) "does not mandate a presumption in favor of the lower term in every case in which the defendant [experienced childhood trauma]." (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991.) Rather, to trigger section 1170, subdivision (b)(6) there "must be some initial showing that the defendant's [childhood trauma] was a contributing factor" to the commission of the crime. (Frederickson, at p. 991.)
Here, Henderson presented no evidence to show a connection between his childhood trauma and his commission of the armed assault. The 1998 probation report described Henderson's traumatic childhood but did not assert that his trauma contributed to his commission of any crimes. Obviously, the 1998 probation report does not address the assault in the present case, which Henderson committed approximately two decades later. Absent any evidence childhood trauma contributed to the offense at issue, we do not find the trial court abused its discretion by imposing a middle term sentence.
B. Custody Credits
Henderson contends as of the date of his resentencing hearing he was entitled to 1,664 actual days of custody credits and argues the trial court miscalculated the number of days he had served in custody. The People concede the trial court erred in calculating Henderson's actual custody credits at the time of resentencing. When the trial court initially sentenced Henderson in November 2019, it awarded him 345 actual days of credits served in custody prior to execution of his sentence. At the resentencing hearing in June 2023, the trial court declined to update Henderson's custody credits, instead suggesting the Department of Corrections and Rehabilitation would do so. In the abstract of judgment prepared after resentencing, the trial court credited Henderson with 455 actual days of custody credits, which the parties agree cannot be correct given Henderson had been in prison for over three years before his resentencing.
"[T]he trial court, having modified defendant's sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time." (People v. Buckhalter (2001) 26 Cal.4th 20, 37; §§ 2900.1, 2900.5.) The trial court will need to include on the new abstract of judgment the number of days Henderson spent in custody between the initial sentencing and his resentencing.
Conduct credits earned by Henderson during his prison sentence (see §§ 2930-2935) are the responsibility of the Department of Corrections and Rehabilitation and need not be added to the updated abstract. (In re Martinez (2003) 30 Cal.4th 29, 37; Cal. Const., art. I, § 32, subd. (a)(2).)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, correcting the calculation of the number of days Henderson spent in custody between the initial sentencing and his resentencing. The trial court is further directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: ROBIE, Acting P. J.,.MESIWALA, J.