Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC334882
Bamattre-Manoukian, ACTING P.J.
BACKGROUND
Defendant Vince Johnson was convicted after jury trial of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and misdemeanor hit and run (Veh. Code, § 20002, subd. (a)). The jury also found true allegations that defendant caused injury to three additional persons and that he had a passenger in his vehicle under the age of 14 years. The trial court found that defendant had suffered a prior strike conviction (Pen. Code, § 1170.12), and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to 10 years in state prison. On appeal, defendant contended that the trial court prejudicially erred when it compelled defendant’s wife to testify against him despite her invocation of her statutory privilege to not testify. Defendant further contended that one of the prison priors was not supported by substantial evidence. We disagreed with defendant’s first contention but agreed with defendant’s second contention, reversed the judgment, and remanded the matter for a possible retrial on that prior allegation. (People v. Johnson (Nov. 17, 2005, H027687) [nonpub. opn.].)
Further statutory references are to the Penal Code unless otherwise specified.
On December 13, 2006, this court granted defendant’s motion to take judicial notice of the record and opinion his prior appeal.
On remand the trial court granted the prosecution’s motion to dismiss the prior prison term allegation that this court determined was unsupported by the evidence, and set the matter for resentencing. On April 21, 2006, the court sentenced defendant to nine years in state prison. The court granted defendant 651 days custody credits for the actual time defendant spent in custody between the day after his original sentencing on July 9, 2004, to April 21, 2006. The court left it to the Department of Corrections to calculate any behavior and work-time credits defendant was entitled to for that period of time.
In this second appeal, defendant contends that the trial court erred in failing to award him additional presentence custody credits. He argues that he is entitled to local conduct credits for the time he spent in custody between the date this court reversed the original judgment and the date of resentencing. He also argues that he is entitled to credit for one additional day he actually spent in custody, July 9, 2004, the date of his prior sentencing.
Defendant has also filed, in propria persona, a petition for writ of habeas corpus alleging that the evidence is insufficient to support his conviction under Vehicle Code section 23153, subdivision (a), which we ordered considered with this appeal. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.264(b)(4).)
DISCUSSION
The disposition in our opinion on defendant’s prior appeal stated: “The judgment is reversed and the matter is remanded for a possible retrial on the allegation that defendant served a prior prison term due to his conviction in case No. 164981. If the prior allegation is found true, the trial court shall reinstate the judgment; if the allegation is not proved, the trial court shall resentence defendant accordingly.” (People v. Johnson, supra, H027687.)
Defendant contends that he was in presentence custody and was entitled to conduct credits under section 4019 from the date of this court’s issuance of the remittitur in his prior appeal to the date he was resentenced. He argues that, because this court reversed the judgment and remanded the matter for a possible retrial on the prison prior allegation, no judgment was in effect between the time of reversal and the time of resentencing. Therefore, he is entitled to presentence conduct credits for the 78-day period beginning with this court’s issuance of the remittitur on February 3, 2006, and ending with his resentencing on April 21, 2006.
In People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the defendant was convicted of multiple felonies committed on a single occasion. The trial court sentenced the defendant to three consecutive indeterminate life terms in state prison under the Three Strikes law (§ 1170.12), and he began serving his sentence. Subsequently, the Court of Appeal remanded the matter on sentencing issues only. At resentencing, the trial court awarded the defendant the custody credits, including jail work and conduct credits, that he had earned up to the time he was originally sentenced but refused to recalculate the credit total. (Buckhalter, supra, at p. 22.)
The defendant appealed and the Supreme Court concluded: “When, as here, 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.’ (§ 2900.1.) On the other hand, 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’ (§ 2901) in the custody of the Director [of Corrections] ‘until duly released according to law’ (ibid.), 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. (§ 4019, subds. (a)(4), (b), (c), (e), (f); . . .) 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. (§§ 2930 et seq., 2933.)” (Buckhalter, supra, 26 Cal.4th at p. 23; accord, People v. Johnson (2004) 32 Cal.4th 260, 266-267.)
In this case, defendant was sentenced, committed, and delivered to state prison in 2004. Thus, he was not restored to presentence status, for purposes of the sentence-credit statutes, by virtue of this court’s limited remand for correction of a sentencing error in 2005. (Buckhalter, supra, 26 Cal.4th at p. 23.) At resentencing in 2006, the trial court calculated defendant’s credits for the actual time defendant was in custody serving his sentence, and he is not entitled to the 78 days of additional presentence custody credits that he seeks.
In re Martinez (2003) 30 Cal.4th 29 (Martinez), and People v. Donan (2004) 117 Cal.App.4th 784 (Donan), cited by defendant, do not require a contrary holding. In those cases the defendants were entitled to additional presentence custody credits because their original convictions were reversed and they were subsequently convicted a second time. (Martinez, supra, at p. 31; Donan, supra, at p. 786.) In this case, this court did not reverse defendant’s conviction on appeal. We reversed the judgment and remanded the matter on a sentencing issue only.
Defendant also contends that he is entitled to one day of additional custody credit because the 651 days credit awarded him were calculated from July 10, 2004, the day after his original sentencing on July 9, 2004. “There was no explanation as to why the probation officer believed that [defendant] began earning credit the day after the original sentencing rather than the date of the original sentencing, nor did the trial court comment on the matter.” “[S]ince [defendant] was in the custody of the corrections department beginning on July 9 (not 10), 2004, his credit for actual custody should have been 652 days, not 651.”
“The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual delivery of the defendant into the custody of the Director of Corrections at the place designated by the Director of Corrections as a place for the reception of persons convicted of felonies.” (§ 2900, subd. (a).)
Defendant was originally sentenced on July 9, 2004, and he was remanded to the custody of the sheriff to be delivered to the reception center designated by the Director of Corrections. He was not awarded any presentence custody credits at that time. As the court stated on April 21, 2006, this was because defendant was in custody on July 9, 2004, due to a revocation of parole based on mixed conduct. The probation officer informed the court on April 21, 2006, that defendant was entitled to custody credits in this matter beginning July 10, 2004, which is presumably the date that defendant was actually delivered into the custody of the Director of Corrections to begin serving the sentence imposed in this case. (§ 2900, subd. (a); see Evid. Code, § 664.) The record on appeal does not show otherwise, and defendant did not contest the probation officer’s statement below. Accordingly, defendant has not shown that he is entitled to credit for one additional day of actual custody.
DISPOSITION
The judgment is affirmed.
We Concur: MIHARA, J., MCADAMS, J.