Opinion
D057671
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. GILBERT SOSA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD212086)
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed in part, reversed in part and remanded with directions.
Gilbert Sosa, Jr., appeals a judgment entered on remand of the matter for resentencing after we issued our opinion in his first appeal. (People v. Sosa (Dec. 17, 2009, D054304) [nonpub. opn.] (Sosa I).) On appeal, Sosa's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no specific issues and requesting that we conduct an independent review of the entire record to determine whether there are any errors requiring reversal or modification of the judgment. In so doing, his counsel summarily presented the possible, but not reasonably arguable, issues of whether the trial court abused its discretion by imposing consecutive terms for counts 4 and 8 and imposing midterm sentences on concurrent terms for counts 6 and 7. Sosa then personally filed a supplemental brief, arguing the trial court erred in resentencing him by: (1) failing to stay pursuant to Penal Code section 654 the sentence it imposed for count 4; and (2) changing its originally imposed term for count 8 from a concurrent two-year term to a consecutive eight-month term. He also argues he was denied effective assistance of counsel in preparing for and arguing at his resentencing hearing and the abstract of judgment must be corrected to reflect the trial court's oral pronouncement of its judgment.
All statutory references are to the Penal Code.
Following our independent review of the entire record, we requested supplemental briefing by the parties' counsel on certain potentially arguable issues described below. We received and have considered that supplemental briefing.
FACTUAL AND PROCEDURAL BACKGROUND
For a more detailed description of the factual background, please refer to our opinion in Sosa I.
On December 19, 2007, San Diego Police Officer Joshua Odom stopped a vehicle at the request of the United States Drug Enforcement Agency (DEA). Enrique Delcampo was the vehicle's driver, Sosa was its front seat passenger, and a woman and child were in its backseat. Officers found 10 grams of marijuana on Sosa and seven grams of marijuana on Delcampo. Searching the vehicle, they found a baggie wrapped in black cloth in the passenger side door panel compartment. That baggie contained a total of 8.9 grams of crack cocaine packaged in separate bags and 5.0 grams of powder cocaine (apparently in one separate bag). Under the front passenger seat, they found a package addressed to an individual in Puerto Rico, containing four cigarillo boxes with five marijuana-stuffed cigarillos in each box. Under the backseat within Sosa's reach, they found a one-pound package of marijuana wrapped in tape.
On February 27, 2008, DEA agents searched a residence Sosa had just left. A desk in its hallway contained "pay-and-owe sheets" used by drug dealers to track drug sales. In a bedroom, they found a wallet on top of a dresser. The wallet contained a large amount of cash, several identification cards, including a voter card from Puerto Rico bearing Sosa's name. Inside the top drawer of the dresser, they found a letter addressed to Sosa with a return address in Puerto Rico. The drawer also contained 3.1 grams of crack cocaine, 1.4 grams of marijuana, marijuana seeds, and a digital scale. A second drawer contained 1.1 grams of methamphetamine.
An information charged Sosa with six counts relating to drugs found in the vehicle: (1) possession for sale of cocaine base (count 1); (2) possession for sale of cocaine (count 2); (3) transportation of cocaine base (count 3); (4) transportation of cocaine (count 4); (5) possession for sale of marijuana (count 5); and (6) transportation of more than 28.5 grams of marijuana (count 6). The information also charged Sosa with two counts relating to drugs found in the residence: (1) possession for sale of cocaine base (count 7); and (2) possession of methamphetamine (count 8). The information also charged Sosa with two counts of felony child endangerment (counts 9 and 10) and alleged he had suffered a prior drug conviction in New York.
At trial, the jury found Sosa guilty on all counts. The trial court found true the prior drug conviction allegation. The court sentenced Sosa to an aggregate term of nine years in prison. Sosa appealed the judgment.
In Sosa I, we reversed Sosa's two felony child endangerment convictions because of insufficient evidence to support them. (Sosa I, supra, D054304, at pp. 1, 10-12.) We also concluded the trial court erred by not applying section 654 to stay some of the sentences imposed for counts 1 through 6. (Sosa I, at pp. 13-15.) We stated: "[T]he matter is remanded for the trial court to: (1) sentence Sosa under the possession or transportation count related to each of the three controlled substances that provides the longest potential term of imprisonment, taking into consideration any enhancements (§ 654; [People v. Kramer (2002) 29 Cal.4th 720, 723]; and (2) exercise its discretion regarding whether the terms it imposes are consecutive or concurrent." (Sosa I, at pp. 14-15.) Our disposition stated: "[Sosa's] convictions for child endangerment, counts 9 and 10, are reversed. The matter is remanded to the trial court for resentencing consistent with this opinion. In all other respects the judgment is affirmed." (Id. at p. 15.)
On April 29, 2010, on remand for resentencing, the trial court stated that it would sentence Sosa as recommended by the prosecutor. The court stated: "I think [Sosa] deserves the nine years that I originally gave him." The court chose count 3 as the principal term, imposing the middle term of four years, and then stayed imposition of sentence on count 1 pursuant to section 654. It imposed a consecutive one-year four- month term (one-third of the middle term) for count 4 and then stayed imposition of sentence on count 2 pursuant to section 654. It imposed a "consecutive, one-third the mid term of one year" for count 6 and then stayed imposition of sentence on count 5 pursuant to section 654. It imposed a "concurrent subterm" of "one year, four months" (one-third of the middle term) for count 7. It imposed a consecutive eight-month term (one-third of the middle term) for count 8. It also imposed a consecutive three-year enhancement on the prior drug conviction allegation. The court stated the total term imposed was nine years in prison. The trial court did not calculate and award to Sosa either his actual time served in custody (both in jail and prison) or his section 4019 conduct credits. The court stated it was going to let the Department of Corrections and Rehabilitation (DCR) calculate the appropriate number of section 4019 credits to which Sosa was entitled. The abstract of judgment stated "TBD" for the actual and conduct credits to which Sosa was entitled, presumably concluding that those credits were "to be determined" by the DCR. On July 1, Sosa timely filed a notice of appeal, challenging the resentencing judgment.
Although the court's minutes and abstract of judgment both show a three-year concurrent term for count 6 rather than a consecutive one-year term (one-third of the three-year middle term), the court's oral pronouncement of the judgment, as we discuss below, generally controls over its minutes and the abstract of judgment to the extent there is a discrepancy.
Under California's determinate sentencing scheme, contrary to the prosecutor's resentencing memorandum, there is no concurrent subterm that is one-third of the middle term. We presume the trial court was misled by the prosecutor's memorandum or misspoke and intended to impose a concurrent subterm equal to the full middle term of four years for count 7.
The trial court's oral pronouncement of Sosa's sentence does not add up to nine years. Rather, the sum of the principal term and the consecutive terms and enhancement is 10 years. Although the court's minutes and abstract of judgment both show a three-year concurrent term for count 6 rather than a consecutive one-year term (resulting in a total term of nine years), the court's oral pronouncement of the judgment, as we discuss below, generally controls over its minutes and the abstract of judgment to the extent there is a discrepancy. Accordingly, the court's oral pronouncement of Sosa's sentence is internally inconsistent, reflecting an error in sentencing.
On September 28, 2010, Sosa filed a motion to correct the trial court's calculation of his section 4019 presentence custody credits, arguing he was entitled to the retroactive application of the amendment to section 4019 effective January 25, 2010. On September 30, the trial court issued an ex parte minute order, granting Sosa's motion and awarding him 294 days of actual days served at the time of his original sentencing and 294 days of section 4019 conduct credits, for total credits of 588 days. An abstract of judgment apparently was prepared by the court clerk reflecting the awards of those credits.
On May 4, 2011, Sosa filed a motion to augment the record on appeal with certain exhibits reflecting his motion and the trial court's order granting that motion. On May 18, we granted that motion and made the documents attached to the motion part of the record on appeal.
DISCUSSION
I
Issues Initially Raised by Sosa's Counsel
The Wende brief filed by Sosa's counsel summarily suggests (per Anders v. California (1967) 386 U.S. 738) there are possible, but not reasonably arguable, issues of whether the trial court abused its discretion by imposing consecutive terms for counts 4 and 8 and imposing midterm concurrent sentences on counts 6 and 7. Based on our independent review of the entire record, we conclude the trial court did not abuse its discretion in imposing those terms on resentencing Sosa.
However, as we discuss below, the court apparently erred in orally pronouncing that it was imposing a consecutive one-year term for count 6, which would have resulted in a total term of 10, and not nine, years. The court's minutes and abstract of judgment reflect the concurrent three-year term it apparently intended to impose and that Sosa's counsel assumes was imposed. On remand, the trial court should clarify its sentencing of Sosa on count 6.
II
Issues Raised in Sosa's Supplemental Brief
In his supplemental brief, Sosa argues the trial court erred in resentencing him by: (1) not staying pursuant to section 654 the sentence it imposed for count 4; and (2) changing its originally imposed term for count 8 from a concurrent two-year term to a consecutive eight-month term. He also argued he was denied effective assistance of counsel in preparing for and arguing at his resentencing hearing. He also argued the abstract of judgment must be corrected to reflect the trial court's oral pronouncement of its judgment.
A
Because we requested and have considered supplemental briefing by counsel on the section 654 issue, we discuss that issue below. Nevertheless, we note that we conclude below the trial court did not err in implicitly finding section 654 did not apply to stay the term imposed for count 4.
B
We conclude the trial court did not abuse its discretion on resentencing Sosa by changing its originally imposed term for count 8 from a concurrent two-year term to a consecutive eight-month term. We are not persuaded by Sosa's argument that the court "penalized" him by imposing a greater sentence for count 8 because he prevailed in part in his first appeal (Sosa I, supra, D054304). On remand for resentencing, a trial court can, and generally should, reconsider all sentencing decisions and may impose a different (and greater) term for a particular count. (People v. Navarro (2007) 40 Cal.4th 668, 681.) However, unless the original sentence was unauthorized, the court may not impose a greater aggregate sentence on resentencing a defendant on remand after a successful appeal of the original judgment. (People v. Thompson (1998) 61 Cal.App.4th 1269, 1275.) Based on our independent review of the record, Sosa does not persuade us the trial court abused its discretion on resentencing him by imposing a consecutive eight-month term for count 8.
However, the trial court erred to the extent it orally pronounced terms for all counts that totaled 10 years, which is one year greater than the aggregate sentence it originally imposed (i.e., nine years). (People v. Thompson, supra, 61 Cal.App.4th at pp. 1275-1276.)
C
Sosa also asserts he was denied effective assistance of counsel in preparing for and arguing at his resentencing hearing. He argues his counsel did not perform required research and evaluation of the facts, argue in opposition to the prosecutor's recommendations for resentencing, or argue that the count 4 term should be stayed pursuant to section 654. (Strickland v. Washington (1984) 466 U.S. 668.) However, "[t]o the extent his contentions allege ineffective assistance of counsel, this claim cannot be resolved on the present record. (People v. Mendoza Tello [(1997) 15 Cal.4th 264, 267].)" (People v. Kelly (2006) 40 Cal.4th 106, 126.)
D
Sosa asserts the trial court's abstract of judgment must be corrected to reflect its oral pronouncement of judgment. He notes the court orally pronounced a one-year concurrent subterm for count 6, but its abstract of judgment reflects a three-year concurrent term. Likewise, he notes the court orally pronounced a one-year four-month concurrent term for count 7, but its abstract of judgment reflects a four-year concurrent term. However, rather than correcting the abstract of judgment to reflect those shorter concurrent terms for counts 6 and 7, the trial court on remand of this matter must, as discussed below, impose either a concurrent full term or a consecutive subordinate term generally equal to one-third of the middle term for each of counts 6 and 7. (§§ 669 [court must impose either concurrent or consecutive terms if defendant is convicted of multiple crimes], 1170.1, subd. (a) ["The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment . . . ."].)
Sosa also asserts the trial court must inform the DCR regarding the proper calculation of his section 4019 conduct credits. However, as we discuss below, it is the trial court's, and not the DCR's, function to calculate and award those credits. Accordingly, we reject his argument.
III
Express Statement Regarding Applying or Striking Allegations
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred by not expressly stating whether it applied or struck the section 1203.07, subdivision (a)(11), allegations on counts 1, 2, and 7 and the section 1210, subdivision (a), allegations on counts 3 and 4.
The parties agree the trial court did not err by not expressly stating whether it applied or struck the section 1203.07, subdivision (a)(11), allegations on counts 1, 2, and 7. Because the trial court found true the allegation that Sosa had a prior drug sale conviction within the meaning of section 1203.07, subdivision (a)(11), it did not have discretion to strike those no-probation allegations. (People v. McGuire (1993) 14 Cal.App.4th 687, 693-695.) Although it may have been preferable for the court to expressly state it had no discretion to strike those allegations, we conclude it implicitly applied those allegations and, in so doing, did not prejudicially err.
The parties also agree the trial court did not err by not expressly stating whether it applied or struck the section 1210, subdivision (a), allegations on counts 3 and 4. Because the jury found Sosa guilty of possession for sale of cocaine base and cocaine as charged in counts 1 and 2, the parties agree those findings necessarily precluded a finding that his transportation of those drugs as charged in counts 3 and 4 were for personal use within the meaning of section 1210, subdivision (a). Sosa was ineligible for probation and diversion into a drug treatment program pursuant to Proposition 36. (Cf. People v. Harris (2009) 171 Cal.App.4th 1488, 1496-1497.) Although it may have been preferable for the court to expressly state it had no discretion to strike those allegations and instead apply Proposition 36's provisions, we conclude it implicitly applied those allegations and, in so doing, did not prejudicially err.
IV
Express Grant or Denial of Probation
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred by not expressly stating whether it granted or denied Sosa probation. The parties agree that the trial court did not err by not expressly stating it denied Sosa probation. Based on the true findings on the section 1203.07, subdivision (a)(11), and section 1210, subdivision (a), allegations, the parties note that Sosa was ineligible for probation. Therefore, the trial court had no discretion to grant him probation and was not required to expressly state it was denying him probation. Although it may have been preferable for the trial court to expressly state Sosa was statutorily ineligible for probation (Cal. Rules of Court, rule 4.413(a)) and therefore it was denying probation, we conclude it implicitly made that determination and denied Sosa probation when it chose to sentence him to prison and, in so doing, did not prejudicially err.
V
Failure to Impose Sentences on Counts 1, 2, and 5
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred by not imposing sentences on counts 1, 2, and 5 before staying the sentences for those counts pursuant to section 654.
In the supplemental brief personally filed by Sosa, he also raised and discussed this issue.
At the resentencing hearing, the trial court did not orally pronounce any sentences for counts 1, 2, and 5 before finding section 654 applied to stay sentences on those counts. In so doing, the parties agree the trial court erred. Although the court's minutes and abstract of judgment show prison terms were imposed for counts 1, 2, and 5, but then stayed pursuant to section 654, the court's oral pronouncement of sentence generally controls over any conflicting provisions in its minutes or abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize."]; People v. Hong (1998) 64 Cal.App.4th 1071, 1075 [discrepancy between judgment as orally pronounced and as entered in minutes is presumably the result of clerical error].)
The court's minutes for the resentencing hearing and the abstract of judgment both indicate that a four-year term was imposed for count 1, a three-year term was imposed for count 2, and a two-year term was imposed for count 5, and then the court stayed execution of those terms pursuant to section 654.
Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The California Supreme Court has stated: "[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence, a resolution we anticipated would prevent the addition of incremental punishment." (People v. Duff (2010) 50 Cal.4th 787, 796.) "[S]taying imposition of sentence [is not] an option. 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. (Pen. Code, § 12; [case citations].) Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' (People v. Cheffen (1969) 2 Cal.App.3d 638, 641 . . . .) [¶] A sentence must be imposed on each count . . . ." (People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1469.) Alford stated: "[T]he rule is, as it has been for many years: A trial court must impose sentence on every count but stay execution as necessary to implement section 654. [¶] Here, however, the trial court stayed imposition of sentence on the theft count. Therefore, although defendant was validly convicted of that count, no sentence at all was imposed for it. This results in an unauthorized absence of sentence." (Alford, at p. 1472.) Because the trial court in this case erred by not orally pronouncing sentences for counts 1, 2, and 5, before applying a section 654 stay to each sentence, the court's failure to impose a sentence for each count was unauthorized and therefore it prejudicially erred. (Ibid.) Accordingly, we must reverse the judgment on counts 1, 2, and 5 and remand the matter for resentencing on those counts.
VI
Section 654 Stay on Count 4
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred by not staying, pursuant to section 654, execution of the sentence imposed on count 4 on the ground it involved the same act, intent, and objective as count 3. In choosing count 3 as the principal term, imposing a four-year term on count 3, and then imposing a consecutive one-year four-month term for count 4, the trial count implicitly found section 654 did not apply to counts 3 and 4 (i.e., they did not involve the same act, intent, and objective). "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (People v. Blake (1998) 68 Cal.App.4th 509, 512.) For purposes of this opinion, we need not restate the often-described substantial evidence standard of review.
Citing In re Adams (1975) 14 Cal.3d 629 (Adams), Sosa asserts his count 4 offense of transporting cocaine involved the same act, intent, and objective as his count 3 offense of transporting cocaine base. Citing People v. Blake, supra, 68 Cal.App.4th 509, the People assert there is substantial evidence to support the trial court's implied finding that counts 3 and 4 did not involve the same act, intent, and objective. The parties do not cite or discuss any other cases that may be apposite to the facts in this case.
In Adams, a narcotics agent observed the defendant park his car in a parking lot, open his trunk, and transfer an attaché case and numerous plastic bags from his car to his codefendant's car. (Adams, supra, 14 Cal.3d at p. 632.) Later that evening, the codefendant sold Benzedrine pills to an undercover narcotics agent, who then arrested the codefendant and searched his car. (Ibid.) The agent found Benzedrine, Seconal, marijuana, heroin, and Pantopon, all of which had been previously transferred by the defendant to the codefendant under the other agent's observation. (Ibid.) The defendant was convicted of one count of selling Benzedrine and five counts of transporting the above drugs. (Ibid.) The trial court did not apply section 654 to stay execution of any of the sentences imposed for those counts. (Ibid.) In Adams, the California Supreme Court held section 654 applied to stay punishment for the five transportation counts, noting all of the drugs were transported by the defendant to one person (i.e., his codefendant). (Id. at pp. 632, 635-636.) The court stated: "[W]here, as in the instant case, different kinds of drugs are simultaneously transported in one, indivisible transaction, with the single intent and objective of delivering them to another person, only one act of illegal transportation occurs." (Id. at p. 632.) Accordingly, Adams concluded the defendant "may be punished for only one act of illegal transportation of drugs." (Blake, at p. 636.)
In contrast, Blake involved facts indicating the defendant intended to make multiple sales of drugs to different buyers. (People v. Blake, supra, 68 Cal.App.4th at pp. 511-512.) In a search of the defendant's car, an officer found numerous items of contraband and other evidence indicating he was involved in the sale of drugs. (Id. at p. 511.) The officer found a jar containing methamphetamine in the car's left fender well and a PVC pipe containing marijuana in a separate hidden compartment in the car. (Ibid.) The trial court did not apply section 654 to stay execution of the sentences it imposed for the two transportation counts (i.e., transportation of methamphetamine and transportation of marijuana). (Id. at pp. 510-511.) Blake distinguished its facts from those in Adams, stating:
"[N]othing in this case indicates defendant transported the methamphetamine and marijuana with the intent to deliver them to one person. To the contrary, the record supports an inference that defendant intended multiple sales to different customers: (1) the marijuana and methamphetamine were stored in separate containers in different concealed compartments of the car; (2) the marijuana was packaged in a manner consistent with multiple, individual sales; (3) the amounts of marijuana and methamphetamine were consistent with delivery to more than one individual; (4) the difference between the drugs suggests they were 'directed at different buyers' [citation]; and (5) the presence of a 'pay-owe' sheet with multiple entries, a police scanner, baby wipes, and a scale indicates defendant was engaged in an elaborate drug trafficking operation involving multiple sales to different individuals, rather than one single delivery." (People v. Blake, supra, 68 Cal.App.4th at p. 512, fn. omitted.)Blake concluded the evidence in its case supported a reasonable inference by the trial court that the defendant had separate objectives in transporting the methamphetamine and marijuana and intended to sell them to different customers. (Id. at pp. 511-512.) It held that the trial court did not err by not applying section 654 to stay execution of the sentences imposed for the two transportation offenses. (Blake, at p. 511.)
Based on our independent review of the evidence, we conclude the facts in this case are more like those in Blake than in Adams. We further conclude there is substantial evidence to support a reasonable inference by the trial court that Sosa had separate intents and objectives in transporting the cocaine base (count 3) and transporting the cocaine (count 4). Sosa was the front seat passenger in a vehicle driven by Delcampo. Officers found 10 grams of marijuana on Sosa and a baggie wrapped in black cloth in the vehicle's passenger side door panel compartment. That baggie contained a total of 8.9 grams of crack cocaine packaged in separate bags and 5.0 grams of powder cocaine (apparently in one separate bag). Officers found additional incriminating evidence during a subsequent search of the residence in which Sosa lived. A desk in its hallway contained "pay-and-owe sheets" used by drug dealers to track drug sales. In a bedroom apparently used by Sosa, they found a wallet on top of a dresser containing a large amount of cash and several identification cards bearing Sosa's name. The drawer also contained 3.1 grams of crack cocaine, 1.4 grams of marijuana, marijuana seeds, and a digital scale. A second drawer contained 1.1 grams of methamphetamine.
Like in Blake, there is no evidence indicating Sosa transported the separate bags of cocaine base and cocaine with the intent to deliver them to one customer. Rather, the trial court could reasonably infer from the evidence that Sosa transported the cocaine base and cocaine with the intent to make multiple sales to different customers. Although the cocaine base and cocaine were wrapped together in a black cloth, they were packaged in separate bags (and the cocaine base was divided into separate bags). Also, other evidence supported the inference that Sosa intended to sell the cocaine base and cocaine to different buyers. In the apartment in which he resided, officers found "pay-and-owe sheets," indicating Sosa and Delcampo conducted an elaborate drug trafficking operation involving multiple drug transactions and customers. We conclude there is substantial evidence to support the trial court's implied findings that Sosa's transportation offenses in counts 3 and 4 were committed with multiple criminal intents and objectives and therefore section 654 did not apply to stay execution of the sentence it imposed for count 4. To the extent Sosa argues contrary inferences from the evidence, he either misconstrues and/or misapplies the substantial evidence standard of review.
VII
Failure to Determine and Award Actual and Conduct Credits
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred on resentencing by not determining and awarding Sosa credits for all actual days spent in custody (whether in jail or prison) and for section 4019 presentence conduct credits. The parties agree the trial court erred in not doing so.
A
A defendant "sentenced to prison for criminal conduct is entitled to credit against his [or her] term for all actual days of confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) Confinement or custody includes days spent in jail before sentencing. (§ 2900.5, subd. (a).) Pursuant to section 4019, a defendant may also earn "conduct credit" for good behavior (i.e., compliance with rules and regulations) and satisfactory performance of any labor assigned him or her during presentence custody. (§ 4019, subds. (b), (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3; Buckhalter, at p. 30.)
Section 2900.5 provides, in part:
"(a) In all felony and misdemeanor convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . [or] prison, . . . all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . . [¶] . . . [¶]The California Supreme Court has stated that when a trial court imposes a sentence, it "has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment." (Buckhalter, supra, 26 Cal.4th at p. 30.) Section 4019, subdivision (a)(4), provides for an award of conduct credits by a trial court "[w]hen a prisoner is confined in a county jail . . . following arrest and prior to the imposition of sentence for a felony conviction," but not for postsentence confinement in prison. (§ 2900.5, subd. (e); People v. Brown (2004) 33 Cal.4th 382, 405; Buckhalter, at p. 31.)
"(d) It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213."
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." Buckhalter held: "[T]he Court of Appeal correctly concluded that defendant was not entitled to presentence good behavior credit under section 4019 for the time he spent in county jail while awaiting the remand hearing. On the other hand, the Court of Appeal erred in concluding that the trial court had no responsibility whatever to recalculate custody credits upon the remand. . . . [U]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Buckhalter, supra, 26 Cal.4th at pp. 40-41, italics added.)
B
At Sosa's original sentencing on December 12, 2008, the trial court apparently determined he was entitled to 294 days of credit for actual time served in local custody and 146 days of presentence section 4019 conduct credit, for a total of 440 days of credit toward his sentence.
At Sosa's resentencing on remand on April 29, 2010, the trial court did not calculate and award to Sosa either his actual time served in custody (while in jail and prison) or his section 4019 conduct credits. Rather, the court stated it was going to let the DCR calculate the appropriate number of section 4019 credits to which Sosa was entitled. The abstract of judgment stated "TBD" for the actual and conduct credits to which Sosa was entitled, presumably indicating that those credits were "to be determined" by the DCR.
C
Sosa argues, and the People agree, the trial court erred by not calculating and awarding him credits for all actual days served in custody (both presentence and postsentence), whether served in local custody or in prison, through the date of his resentencing on April 29, 2010. Buckhalter is directly on point, stating: "[U]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Buckhalter, supra, 26 Cal.4th at pp. 40-41, italics added.) The trial court should have calculated all days Sosa actually was in custody both before sentencing and from his original sentencing (December 12, 2008) through his resentencing (April 29, 2010), and should have awarded him all actual days served in custody. Furthermore, the court should have reflected the award in the new abstract of judgment. Because the court failed to take those actions, we remand the matter so that it can do so and issue an amended abstract of judgment reflecting the total amount of credits for actual days served in local and state custody at the time of resentencing on remand of this case.
Furthermore, the trial court at Sosa's April 29, 2010, resentencing should have calculated and awarded Sosa all section 4019 presentence custody credits to which he was entitled. It erred in not doing so. However, as reflected in the augmented record discussed above, on September 30, 2010, the trial court granted Sosa's motion for an award of section 4019 conduct credits based on the amended version of section 4019, effective January 25, 2010. It then ordered that Sosa's "custody credits as of the date of original sentencing are set at 294 days for actual days served and 294 days of conduct credits under . . . section 4019 . . . for total credits of 588 days." Although the trial court originally erred by not calculating and awarding Sosa section 4019 conduct credits at his resentencing, the court corrected and cured that error when it subsequently awarded Sosa 294 days of section 4019 conduct credits. Therefore, we conclude any challenge to the trial court's April 29, 2010, judgment in failing to determine and award section 4019 credits is moot because we cannot grant any effective relief. We note that on remand the trial court's calculation and award of Sosa's presentence custody credits should include those section 4019 conduct credits determined and awarded to him by the court on September 30, 2010 (i.e., 294 days), and its amended abstract of judgment should reflect that award.
VIII
Retroactive Application of Amended Section 4019
We requested, and have received and considered, the parties' supplemental briefs on the issue of whether the trial court erred on resentencing by not awarding Sosa credits pursuant to the amended version of section 4019 in effect on the date of his April 29, 2010, resentencing. Sosa argues he was entitled to credits pursuant to the amended version of section 4019 because his judgment of conviction was not final on January 25, 2010, the effective date of section 4019 amendment. The People, however, argue the January 25, 2010, amendment of that section should not be applied retroactively to conduct during his presentence local custody (i.e., before December 12, 2008). However, the instant issue is moot because, as discussed above, the trial court on September 30, 2010, granted Sosa's motion for section 4019 presentence conduct credits pursuant to its January 25, 2010, version and awarded him 294 days of section 4019 pursuant to that amended version. Because the trial court cured any purported error in not applying the amended version of section 4019, we cannot grant any effective relief.
Because the People apparently have not appealed either the April 29, 2010, judgment or the September 30, 2010, order (or filed a petition for writ relief challenging that order), we decline to address the merits of their argument that the amended version of section 4019 should not be applied retroactively.
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In any event, were we to address the merits of the issue, we would conclude, as have most California courts of appeal, that the trial court properly awarded Sosa section 4019 presentence conduct credits pursuant to its January 29, 2010, amended version. Nevertheless, the California Supreme Court apparently will decide this question in cases currently pending before it. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [holding amended § 4019 applies retroactively to judgments not yet final]; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [holding amended § 4019 does not apply retroactively to judgments not yet final].) However, until that court may hold otherwise, we believe amended section 4019 applies retroactively to defendants whose judgments are not yet final.
IX
Remaining Issues
Finally, as discussed above, the trial court's oral pronouncements on resentencing Sosa on counts 6 and 7 conflict with its minutes and abstract of judgment. The trial court's minutes and abstract of judgment both show a three-year concurrent term for count 6 rather than the court's oral pronouncement at Sosa's April 29, 2010, resentencing imposing a consecutive one-year term (one-third of the three-year middle term). Similarly, the court's minutes and abstract of judgment both show a four-year concurrent term for count 7 rather than the court's oral pronouncement at Sosa's resentencing imposing a "concurrent subterm" of "one year, four months" (one-third of the middle term) for count 7. Finally, the trial court orally pronounced that Sosa's total prison term was nine years, but the actual total term based on the individual components of its orally pronounced sentences on Sosa's convictions was 10 years. As stated above, a trial court's oral pronouncements generally control over conflicting provisions in its minutes or abstracts of judgment.
We conclude the trial court erred in resentencing Sosa. First, it could not sentence him to a total term (10 years) greater than that imposed at his original sentencing (nine years). (People v. Thompson, supra, 61 Cal.App.4th at pp. 1275-1276.) Second, the trial court's oral pronouncement of a consecutive one-year term for count 6 apparently was the cause of that excessive total term. On remand, the court should resentence Sosa so that the total term does not exceed nine years (e.g., by orally pronouncing a concurrent three-year term for count 6 rather than its April 29, 2010, oral pronouncement of a consecutive one-year term). Finally, the court erred by orally pronouncing a "concurrent subterm" of "one year, four months" (one-third of the middle term) for count 7. As noted above, there is no authority for that sentence. If a sentence is made concurrent, it must be a full term, not one-third of a middle term. A sentence is one-third the middle term only if it is to be served consecutively to the principal term. Accordingly, on remand the trial court should orally pronounce either a concurrent full term or a consecutive term of one-third of the middle term for count 7 (provided that the total term does not exceed nine years).
DISPOSITION
The judgment is reversed as to the sentences imposed for counts 1, 2, 5, 6, and 7 and as to its failure to determine and award Sosa credits for actual days served in local and state custody through the date of judgment, and the matter is remanded for further proceedings consistent with this opinion. On remand, the trial court is directed to: (1) impose terms on counts 1, 2, and 5 and then stay execution of those terms pursuant to section 654; (2) resentence Sosa on counts 6 and 7 consistent with this opinion, provided the total term imposed does not exceed nine years; (3) determine and award Sosa credits for all actual days served in local and state custody through the date of his resentencing on remand of this case; (4) enter an amended judgment reflecting its resentencing of Sosa; and (5) amend the abstract of judgment to reflect the amended judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
McDONALD, J. WE CONCUR:
HALLER, Acting P. J.
AARON, J.