Opinion
B294917
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ISAAC LOZOYA, Defendant and Appellant.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Stephanie C. Brenan and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA123733 APPEAL from a judgment of the Superior Court of Los Angeles County. Olivia Rosales, Judge. Affirmed in part, reversed in part, and remanded with directions. Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Stephanie C. Brenan and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
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In this appeal, David Isaac Lozoya (appellant) challenges the 22-year four-month state prison sentence imposed on him at a resentencing hearing. He contends that nine years of his sentence attributable to a strike prior should be reversed because the trial court improperly allowed the prosecutor to amend the information and allege a new strike prior after the jury had been discharged. In addition, he contends he is entitled to additional custody credits. We reverse the strike prior and modify appellant's sentence to 13 years four months. Also, we modify the judgment to include 712 additional custody credits, which brings the total credits to 2,767. As modified, the judgment is affirmed.
FACTS
In 1995, in case number VA021379, appellant pleaded guilty to committing assault in violation of former section 245, subdivision (a)(1). (People v. Lozoya (June 26, 2018, B282367) [nonpub. opn.], pp. 2-3 (Lozoya).)
All further statutory references are to the Penal Code unless otherwise indicated.
In the current case, the jury found appellant guilty on two counts of committing assault with a firearm in violation of section 245, subdivision (a)(2). Further, the jury found the firearm allegations on both counts (§§ 12022.5, subd. (a), 12022.7, subd. (a)) to be true. Appellant waived his right to a jury trial on priors and admitted a nonexistent conviction in case number VA021379 for attempted murder. Also, he admitted that he had four prison priors for purposes of section 667.5, subdivision (b). (Lozoya, supra, B282367, at pp. 3-4.)
At appellant's initial sentencing on January 6, 2017, the trial court imposed a sentence of 22 years four months in state prison. The court imposed 18 years on count 1 as follows: the midterm of three years for violating section 245, subdivision (a)(2), doubled to six years under section 667, subdivision (e)(1) due to the strike prior in case number VA021379; the midterm of four years for violating section 12022.5, subdivision (a); three years for violating section 12022.7, subdivision (a); and a five-year enhancement under section 667, subdivision (a)(1) for the strike prior in case number VA021379. The court imposed four years four months on count 2 as follows: one year (one-third the midterm) for violating section 245, subdivision (a)(2), doubled to two years for the strike prior in case number VA021379; one year four months (one-third the midterm) for violating section 12022.5, subdivision (a); and one year (one-third the midterm) for violating section 12022.7, subdivision (a). The court struck the section 667.5, subdivision (b) enhancements. (Lozoya, supra, B282367, at pp. 4-5.)
In Lozoya, we found that appellant's defense counsel was ineffective for neglecting to advise appellant not to admit the nonexistent prior conviction for attempted murder in case number VA021379. We struck the true finding that he suffered the prior attempted murder conviction, reversed the nine years of his sentence attributable to that admission, and remanded for resentencing. (Lozoya, supra, B282367, at pp. 5-6.) Further, we remanded the matter for the trial court to exercise the discretion newly granted by Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620) to strike firearm enhancements. (Lozoya, supra, B282367, at p. 7.)
SB 620 amended, inter alia, former section 12022.5, effective January 1, 2018, to permit a trial court to strike a firearm enhancement in the interest of justice pursuant to section 1385. (§ 12022.5, subd. (c).)
After remand, the trial court allowed the prosecutor to amend the information to allege that appellant had been convicted of committing an assault in violation of former section 245, subdivision (a)(1) in case number VA021379, a serious or violent felony. (§§ 667, subds. (a) & (b)-(i) & 1170.12, subds. (a)-(d).)
On December 19, 2018, Appellant admitted the prior conviction but not that it was a serious prior felony or a strike. The trial court found that appellant's violation of former section 245, subdivision (a)(1) was for assault with a deadly weapon, and that it was a serious felony for purposes of sections 667 and 1170.12. After declining to strike any of the enhancements, the trial court imposed the same 22-year four-month sentence as before.
The court recognized that on the date of the original sentencing, appellant was entitled to 1,787 custody credits and 268 conduct credits, and that his total presentence custody credits were 2,055.
This second appeal followed.
DISCUSSION
I. Standard of Review.
The facts are undisputed and this appeal presents only legal issues. Our review is de novo. (Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 160.)
II. The True Finding on the Strike Prior Must be Reversed.
In the absence of forfeiture or waiver, section 1025, subdivision (b) requires the same jury that decided the issue of a defendant's guilt to determine the truth of any alleged prior convictions. "Because a jury cannot determine the truth of the prior conviction allegations once it has been discharged [citation], it follows that the information may not be amended to add prior conviction allegations after the jury has been discharged." (People v. Tindall (2000) 24 Cal.4th 767, 782 (Tindall).) Appellants argues—and the People concede—the trial court erred by permitting the prosecutor to file an amended information to allege a new strike prior.
We are urged by the People to conclude that the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 [a judgment is not reversible unless it is reasonably probable the appellant would have received a more favorable result in the absence of error].) But the strike prior increased appellant's sentence by nine years. As Tindall explained, when a "postdischarge amendment[] . . . increase[s] [a] defendant's prison sentence . . . [t]he prejudice to defendant is manifest." (Tindall, supra, 24 Cal.4th at p. 782.)
The true finding that appellant was convicted of violating former section 245, subdivision (a)(1) and suffered a strike within the meaning of sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d) must be reversed.
III. Custody Credits.
Custody credits include the date of arrest and the date of sentencing. (People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Appellant was arrested on February 16, 2012, and sentenced on January 6, 2017. As the trial court correctly calculated at the initial sentencing hearing, appellant was entitled to 1,787 actual custody credits. It added 268 good time/work time credits, for a total of 2,055.
When a sentence is modified, the new abstract of judgment should credit a defendant with actual days spent in custody. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) At the resentencing hearing, however, the trial court did not award additional custody credits. Appellant contends that the trial court erred, and the People agree.
"A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Appellant contends that he is entitled to an additional 712 days of custody credits. It is undisputed that appellant was sentenced on January 6, 2017, and then resentenced on December 19, 2018. Not including January 6, 2017, the span of days during that period was 712 days.
The People concede that appellant is entitled to additional custody credits, though the People place the number at 713 days. Presumably, the People have included January 6, 2017, in the calculation. But that date was included in the original calculation. --------
The sentence must be modified to reflect these additional days of custody credit.
DISPOSITION
The true finding that appellant suffered a strike prior for purposes of section 667, subdivisions (a) and (b)-(i) and section 1170.12, subdivisions (a)-(d) is reversed. We modify the judgment to reflect that appellant is sentenced to 13 years four months in state prison, and that he is entitled to credit for 2,499 actual days of custody and 268 days of good time/work time for a total of 2,767 of custody credits. As modified, the judgment is affirmed. The trial court is directed to file an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ