Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County, Super. Ct. No. CRF16875. Eric L. DuTemple, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Cornell, J.
INTRODUCTION
On May 23, 2005, Dean Dee Phillips, appellant, was convicted of being an accessory to assault likely to produce great bodily injury. Appellant admitted two prior serious felony convictions within the meaning of the three strikes law. On June 20, 2005, appellant was sentenced to prison for a term of 25 years to life. The court awarded presentence custody credits of 295 days. On November 2, 2006, this court issued an opinion (case No. F048433) finding that one of the prior serious felony convictions potentially did not qualify as a strike and we remanded the case to the trial court for further proceedings.
Appellant was awarded actual custody credits of 197 days and conduct credits of 98 days, for a total of 295 days.
On February 26, 2007, the trial court found that one of the strike allegations did not qualify as a prior serious felony conviction within the meaning of the three strikes law. The court sentenced appellant to prison for three years and doubled the sentence to six years because appellant still had one prior serious felony conviction that was valid. The court awarded presentence custody credits of 296 days. The court failed, however, to award credits for the time appellant was incarcerated in state prison between June 20, 2005, and February 26, 2007.
The second abstract of judgment states that appellant served 198 days in custody and received conduct credits of 98 days for a total of 296 days. This is a mistake. The probation report notes that appellant was in custody between September 24, 2004, and March 10, 2005, a span of 168 days and again in custody between May 23, 2005, and June 20, 2005, a span of 29 days. Appellant’s actual days in custody prior to his first sentencing totaled 197 days. Appellant’s total presentence custody credits, therefore, should total 295 days.
On appeal, appellant contends and respondent concedes that appellant is entitled to an additional 616 days of credit for the time he spent in prison between the original sentencing hearing and the resentencing hearing. Appellant and respondent just filed correspondence stipulating to waiver of oral argument and immediate issuance of remittitur upon the filing of this opinion.
In their briefs, the parties computed appellant’s time in prison differently. On October 16, 2007, and on October 17, 2007, the respondent and appellant respectively filed letter briefs concurring that appellant was entitled to 911 days of total custody credits. Presentence custody credits of 295 days plus credit in prison of 616 days totals 911 days.
Respondent stated it was in receipt of information from the case records manager of the state prison in which appellant is currently committed setting forth “the minimum release date for appellant.” The parties have not provided specific information concerning the precise minimum release date.
DISCUSSION
When appellant was sentenced on June 20, 2005, he received presentence custody credits of 295 days. Appellant does not challenge the computation of these credits, but the trial court’s failure to add credit for the time he spent in prison between June 20, 2005, and February 26, 2007. The parties concur that appellant deserved another 616 days of custody credit in addition to the original custody credits of 295 days for a total of 911 days of custody credits. We have done our own calculation of the time appellant spent in prison between sentencing and resentencing and determined that although 616 days passed, the parties did not include February 26, 2007, itself as a day in custody. We find that appellant is entitled to 912 days of custody credits as of February 26, 2007.
Penal Code section 2900.1 provides:
“Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.”
The California Supreme Court has found that a defendant awaiting resentencing is not entitled to presentence good behavior credit under Penal Code section 4019 for time spent in county jail, but, the defendant is entitled to have the trial court recalculate custody credits and must determine the actual days the defendant spent in custody, whether in jail or in prison. The trial court must award all such credits in the new abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 40-41.)
The trial court here failed to include an additional 617 days that appellant spent in prison and county jail after his initial sentencing on June 20, 2005. This was error. The trial court should have awarded appellant 912 days of custody credits.
Because our opinion is effective as soon as it is filed, the parties should immediately forward it to the appropriate prison authorities.
DISPOSITION
Pursuant to stipulation of the parties and California Rules of Court, rule 8.272(c)(1), our remittitur shall issue forthwith upon the filing of this opinion. The trial court shall, within no more than 21 days after this opinion is filed, amend the abstract of judgment to reflect that appellant had total custody credits of 912 days as of February 26, 2007, and to forward this information to the appropriate authorities. The judgment is otherwise affirmed.