Opinion
C058109
9-8-2008
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RICHARDSON, Defendant and Appellant.
Not to be Published
On appeal after resentencing, defendant Michael Richardson contends the trial court erred in reimposing the upper term and also erred in calculating his presentence custody credits. We shall modify the judgment regarding credits and affirm as modified.
FACTS AND PROCEDURAL BACKGROUND
In May 2006, defendant was convicted in case No. 62-042914 of exhibiting harmful matter to a minor (count 1), attempting to commit a lewd or lascivious act with a child under the age of 14 (count 2), annoying or molesting a minor, a misdemeanor (count 4), and possessing methamphetamine (count 5). (People v. Richardson (May 30, 2007, C052912) [nonpub. opn. at p. 2].) On June 9, 2006, defendant was sentenced to the upper term of four years on count 2, the principal offense, plus consecutive terms of eight months on counts 1 and 5 and a concurrent term of six months on count 4. (People v. Richardson, supra, C052912, at p. 2.) To impose the upper term, the trial court relied on two aggravating factors found by the court: the sophistication and planning of defendants crime; and his lack of remorse or compassion afterward. (People v. Richardson, supra, C052912, at p. 30.)
We have granted the Peoples request for judicial notice of the proceedings in case No. C052912.
On appeal in case No. C052912, this court affirmed defendants convictions but, citing Cunningham v. California (2007) 549 U.S. 270 (hereafter Cunningham), vacated the sentence for error in imposing the upper term based on facts that were not tried to the jury. The opinion remanded the matter to the trial court with the following directions: "Within 30 days of the filing of [the] remittitur, the District Attorney shall elect whether to try aggravating factors to a jury (unless waived by defendant) or to stipulate to imposition of the middle term. If the District Attorney chooses the latter course, the trial court shall recalculate defendants sentence on all counts accordingly." (People v. Richardson, supra, C052912, at p. 30.)
This courts opinion was filed on May 30, 2007, and the remittitur issued on September 17, 2007. Between those dates, on July 19, 2007 (too late for the People to petition for rehearing or immediate review), the California Supreme Court filed its opinion in People v. Sandoval (2007) 41 Cal.4th 825 (hereafter Sandoval). Sandoval held that recent legislation giving trial courts greater discretion to impose upper terms in determinate sentencing cases did not run afoul of the United States Supreme Courts decision in Cunningham, and that the legislation was retroactive as to all defendants not yet sentenced. (Sandoval, supra, 41 Cal.4th at pp. 843-857.) Sandoval also stated that following this procedure was preferable to holding jury trials on aggravating factors, which "would significantly complicate and distort the sentencing scheme." (Id. at p. 848.)
On remand, the parties agreed Sandoval made a jury trial on aggravating factors unnecessary. The trial court reimposed the upper term, relying on defendants prior convictions and the number of internet contacts he had made with underage females.
The parties and the trial court did not discuss People v. Dutra (2006) 145 Cal.App.4th 1359 (hereafter Dutra), a pre-Sandoval resentencing case decided by this court. In Dutra, the majority held that because an appellate courts remittitur defines the trial courts jurisdiction on remand, the trial court lacks authority to do anything but implement the remittitur, despite any intervening change in law. (Id. at p. 1362 (maj. opn. of Morrison, J.).) Dutra thus reversed with directions that the trial court follow this courts original directions to hold a jury trial on aggravating factors, even though People v. Black (2005) 35 Cal.4th 1238, filed after our remittitur, had held defendants were not entitled to such trials. (Dutra, supra, 145 Cal.App.4th at pp. 1361-1362, 1369.)
The dissenting justice in Dutra opined that in light of People v. Black, supra, 35 Cal.4th 1238, the trial courts failure to hold a jury trial on the aggravating factors did not produce a miscarriage of justice. (Dutra, supra, 145 Cal.App.4th at pp. 1369-1370 (dis. opn. of Sims, J.).)
DISCUSSION
I
Defendant contends that, as in Dutra, the resentencing in this case is void for lack of jurisdiction because the trial court did not follow this courts remittitur. He also contends his trial counsel was ineffective for failing to cite Dutra. We disagree.
Here, unlike in Dutra, this court did not direct the trial court to conduct a jury trial of aggravating factors. Because the district attorney neither elected to prove the aggravating factors nor stipulated to the middle term, the trial court did not fail to follow the remittiturs directions.
We recognize, of course, the remittitur in effect directed that before the court could consider as aggravating circumstances the sophistication and planning of defendants crime and his lack of remorse or compassion, a jury must make those findings. However, the trial court did not rely upon those factors to impose the upper term.
In any event, after the remittitur was issued, the California Supreme Court decided Sandoval, setting forth a contrary procedure for resentencing in cases of Cunningham error. Thus, the scope of the remittitur is no longer relevant. (People v. Lincoln (2007) 157 Cal.App.4th 196, 204, fn. 3; see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Stated another way, reversal is not required because defendant has not suffered a miscarriage of justice. (Cal. Const., art. VI, § 13.) This is so because the trial judge properly imposed the upper term based on defendants prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (hereafter Black II.)
Because Dutra is of no assistance to defendant, his trial attorney was not ineffective for failing to cite that opinion.
Defendants contention that Sandoval and Black II were wrongly decided is tendered to the wrong court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
II
Defendant contends that the trial court erred by failing to recalculate his actual time in custody prior to the resentencing hearing. The People correctly concede this point. (Pen. Code, § 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 23.)
Defendant calculates that, in addition to 54 days actually served plus 26 days of local conduct credit from the time of his arrest to his initial sentencing on June 9, 2006 (currently reflected in the abstract of judgment), he served 543 actual days of state custody from June 10, 2006, to December 4, 2007, the date of his resentencing; therefore, the trial court should have awarded him 597 actual days of credit plus the 26 days of local conduct credit originally awarded him.
The People do not dispute these figures. The parties agree the Department of Corrections and Rehabilitation will be responsible for calculating the amount of credits, if any, to which defendant is entitled under Penal Code section 2930 while in state custody. (People v. Buckhalter, supra, 26 Cal.4th at p. 23.)
DISPOSITION
The judgment is modified to award defendant 597 actual days of presentence custody credit, plus 26 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to show that for the violation of Penal Code section 647.6, subdivision (a), a misdemeanor, the court imposed a concurrent term of six months, not eight months (the abstract also must be amended to delete the "M" checked in the box under "TERM [¶] (L, M, U)," and to delete the "X" checked in the box under "CONSECUTIVE [¶] 1/3 NON-VIOLENT"). The court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
DAVIS, J.
NICHOLSON, J.