Opinion
G061848
09-19-2023
THE PEOPLE, Plaintiff and Respondent, v. KY VAN NGUYEN, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 04ZF0054 Cheri T. Pham, Judge. Reversed and remanded with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
This appeal is from an order denying appellant's postjudgment motion to correct his presentence credits and to be resentenced. Claiming she was unable to find any arguable issues, appointed counsel originally asked that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Appellant then filed a supplemental brief on his own behalf, challenging the trial court's denial order. After that, we ordered the parties to file additional supplemental briefing on the following issues: 1) In light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), is Wende review proper in this case? 2) Was the trial court required to correct appellant's credits? 3) If so, is appellant entitled to full resentencing?
We conclude Wende review is not appropriate in this case. And although the trial court erred in failing to correct appellant's presentence credits, the error does not require a new sentencing hearing. Therefore, while we reverse the trial court's denial order, our remand order is limited to the correction of appellant's credits.
BACKGROUND
In 2005, appellant was convicted by the trial court of conspiracy to commit burglary, burglary and street terrorism. (Pen. Code §§ 182, subd. (a)(1), 459/460, subd. (a); 186.22, subd. (a); all further statutory references are to this code.) In addition, the court found appellant acted for the benefit of a criminal street gang, and he had incurred three prior strike convictions (§§ 667, subds. (d) &(e)(2)(A), 1170.12 subd. (b)), two prior prison terms (§ 667.5 subd. (b)), and one prior serious felony conviction (§ 667 subd. (a)). The court sentenced appellant to 25 years to life on the burglary count, plus 5 years for the prior serious felony. Punishment for the other crimes and enhancements was either stayed or stricken.
Appellant also received 596 days of actual custody credit and 298 days of conduct credit, for a total presentence credit award of 894 days. On direct appeal, appellant argued he did not validly waive his right to a jury trial, but we affirmed the judgment in all respects. (See People v. Nguyen et al. (June 22, 2006, G035706) [nonpub. opn.].)
In 2022, appellant filed a motion in propria persona asking the trial court to correct his presentence credits. (§ 1237.1.) Appellant pointed out there were actually only 577 days between the date of his offense and the date of sentencing, not 596. Therefore, the trial court awarded him too many custody and conduct credits. In addition to asking the court to correct his credits, appellant sought a full resentencing hearing so the court could apply newly-enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) to his sentence. However, the trial court denied both requests without a hearing.
On the credits issue, the court applied the no-harm, no-foul rule. It reasoned that because appellant allegedly got more credits than he deserved, he was in no position to complain or seek redress from the court. Therefore, it left his credit award intact.
The court also rejected appellant's request for resentencing under Senate Bill No. 81. Enacted in 2021, that bill amended section 1385 to require trial courts to dismiss sentencing enhancements if it would further the ends of justice and not endanger public safety. (§ 1385, subd. (c)(1) &(2).) But this amendment only applies to sentencing hearings conducted after January 1, 2022. (Id., subd. (c)(7).) The trial court ruled, "Defendant was sentenced in 2005 and is thus ineligible for relief. Even if the court were to correct the alleged error in custody credits, this would not result in a full resentencing hearing, but rather would result in an amended abstract of judgment."
In this appeal, appointed counsel filed a Wende brief claiming she was unable to find any arguable issues to raise on appellant's behalf. We then invited appellant to file a supplemental brief on his own behalf, which he did. Appellant argued the trial court erred in denying his request for a credit modification, and since his credits needed to be corrected, he was entitled to full resentencing. We ordered and have received supplemental briefing on those two issues, as well as whether appellant is entitled to Wende review under Delgadillo. We now turn to those issues.
DISCUSSION
Wende and Delgadillo
Under Wende, appellate courts are generally required to independently review the record for error when appointed counsel submits a brief which raises no arguable issues. (Wende, supra, 25 Cal.3d at p. 441.) However, in Delgadillo, the Supreme Court ruled that requirement applies to a defendant's first appeal of right from a criminal conviction, not to an appeal involving the denial of a motion for postconviction relief. (Delgadillo, supra, 14 Cal.5th at pp. 224-231.) Because appellant's appeal falls into the latter category, he is not entitled to Wende review.
However, Delgadillo also decided that when appointed counsel files a noissue brief in an appeal from the denial of a postconviction motion, the defendant has the right to file a supplemental brief on his own behalf. (Delgadillo, supra, 14 Cal.5th at p. 232.) And if he does, "the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Ibid.) Therefore, we will address the arguments presented in appellant's supplemental brief, which both his appointed attorney and respondent have weighed in on, as well.
Appellant's Presentence Credits
Appellant contends the trial court erred in failing to grant his request for a credit modification. Respondent agrees, and so do we.
"[I]t is the duty of the trial court to award the correct amount of credits." (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9.) "A sentence that awards custody credits exceeding statutory limits is unauthorized, and may be corrected whenever the error is discovered. [Citation.]" (People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.)
Here, it is undisputed the trial court awarded appellant too many credits when it sentenced him in 2005. Indeed, the record shows appellant was in custody for only 577 days before sentencing, not 596, and based on that number, he should have only been granted 288 days of conduct credit, not 298. (§§ 2900.5, 2933.) Therefore, we will remand the matter for the trial court to adjust appellant's credits.
Remedy
While there is agreement on the credits issue, the parties dispute whether a credit modification requires full resentencing or merely the issuance of a corrected abstract of judgment. Appellant advocates for full resentencing, so the trial court can apply Senate Bill No. 81, but we agree with respondent that full resentencing is not appropriate in this case.
"The general rule is that on remand for resentencing the trial court is '[n]ot limited to merely [correcting] illegal portions' and 'may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.'" (People v. Codinha (2023) 92 Cal.App.5th 976, 994, quoting People v. Hill (1986) 185 Cal.App.3d 831, 834.) However, this rule applies only when resentencing requires the trial court to exercise discretion in restructuring the defendant's sentence. (People v. Codinha, supra, 92 Cal.App.5th at p. 995.)
Here, the only aspect of appellant's sentence that needs to be fixed is his presentence credit award. That correction "does not involve a discretionary sentencing choice but is a purely mathematical calculation." (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485; see also People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139 ["The calculation of credits is not discretionary" because "there are no 'choices'" for the trial court to make]; People v. Jack (1989) 213 Cal.App.3d 913, 917 ["the trial court exercises no discretion when determining the days of presentence custody"]. Therefore, although appellant's credits need to be corrected, he is not entitled to a new sentencing hearing.
In arguing otherwise, appellant relies on People v. Padilla (2022) 13 Cal.5th 152. There, our Supreme Court held the defendant was entitled to the benefit of an ameliorative sentencing statute that became effective after he was originally sentenced. (Id. at p. 158.) But that's because his entire sentence was vacated during habeas corpus proceedings, and the trial court was required to sentence him anew. (Id. at pp. 161-162.) Here, in contrast, appellant's sentence is not being vacated. Because the error in his sentence relates strictly to the calculation of credits, it can be corrected without disturbing the other aspects of his sentence, and there is no justification for full resentencing. (See, e.g., People v. Valdes (2020) 53 Cal.App.5th 953, 955; People v. Denman (2013) 218 Cal.App.4th 800, 817; People v. Mitchell (2004) 118 Cal.App.4th 1145, 1150.)
Appellant also relies on Gonzalez v. Sherman (9th Cir. 2017) 873 F.3d 763 (Sherman). In that case, the Ninth Circuit held a sentence modification relating solely to the issue of custody credits constitutes a new judgment for purposes of the rules governing successive federal habeas corpus petitions. (Id. at pp. 769-772.) However, that holding does not assist appellant's cause. In fact, the credit modification in Sherman was accomplished simply by amending the abstract of judgment, which undermines appellant's argument for a new sentencing hearing. (See id. at p. 766.)
Credit issues are obviously important, in that they affect the amount of time a defendant will ultimately serve in custody. Accordingly, appellant's erroneous credit award cannot stand. But since the calculation of his credits is merely a matter of mathematical computation and does not require the exercise of judicial discretion, he is not entitled to full resentencing.
DISPOSITION
The trial court's order denying appellant's motion to modify his presentence credits is reversed. The matter is remanded for the trial court to grant the motion and correct the abstract of judgment to reflect appellant's entitlement to 577 days of actual custody, plus 288 days of conduct credit, for a total presentence credit award of 865 days. The trial court shall also ensure a certified copy of the amended abstract of judgment is forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: O'LEARY, P. J. MOORE, J.