Opinion
E065387
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGELA KAY VANDIVER, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1401763) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed with directions. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Angela Kay Vandiver, appeals the award of presentence custody credits on her sentence for one felony count and one misdemeanor count of receiving stolen property. She contends the trial court improperly failed to recalculate her credits after modifying her sentence under Proposition 47.
We reverse because Penal Code section 2900.1 required the court to credit defendant "with all actual days [she] had spent in custody, whether in jail or prison" up to the date it modified the sentence. (People v. Buckhalter (2001) 26 Cal.4th 20, 37, 41.) Doing so will dispel any confusion whether Vandiver is entitled to credit for time served between the date of the first and second sentences—she is.
I
FACTUAL BACKGROUND
The District Attorney for Riverside County filed a complaint charging Vandiver with two felony counts of receiving stolen property (Pen. Code, § 496, subd. (a)) and suffering two prison priors (§ 667.5, subd. (b)). Vandiver pled guilty to both counts and admitted both prison priors.
Unlabeled statutory citations refer to the Penal Code.
On June 25, 2014, the court sentenced Vandiver, under section 1170, subdivision (h), to a midterm of two years in county jail for each count (concurrent) and one year for each prison prior (consecutive). It awarded Vandiver credit for 45 days presentence custody (§ 2900.5; Cal. Rules of Court, rules 4.310, 4.472) and 44 days good conduct (§ 4019; Cal. Rules of Court, rule 4.472), for a total credit of 89 days.
On July 9, 2015, the trial court granted part of Vandiver's Proposition 47 petition to designate her convictions as misdemeanors. It designated count 1 a misdemeanor, refused to do so for count 2, and entered a new sentence. (§ 1170.18.) The minute order says the court vacated the sentence on count 1 and imposed a new county jail sentence for 364 days with credit for all 364 days. The minute order left intact the sentence on count 2 and the prison priors. It notes there was no change in the overall sentence because the sentences were to run concurrently.
On December 28, 2015, the trial court issued a minute order correcting the July 9, 2015 minute order nunc pro tunc because it did not correctly reflect the sentence. It vacated the sentences imposed as to counts 1 and 2, imposed a midterm two-year county jail sentence on count 2, which it deemed the principal count, and a concurrent 364-day county jail sentence on count 1. The minute order imposed a total term of four years and said the earlier order remains in "full force and effect as to custody and credits."
On February 9, 2016, Vandiver asked the court to correct the credits, but the court refused.
II
DISCUSSION
Vandiver contends the court erred by failing to recalculate presentence custody credits as of July 9, 2015, the date the trial court modified her sentence, and asks that we reverse and remand for the trial court to do so. She argues failing to recalculate may "result in [her] spending excess time in custody, because jail authorities would only credit her for the time spent in custody before the first judgment." We agree there is potential for confusion.
"A defendant is entitled to actual custody credit for 'all days of custody' in county jail." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; see also § 2900.5, subd. (a).) "Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam, at p. 48.) An offender may earn additional presentence credit for performing labor and complying with rules and regulations. (Ibid.; § 4019, subds. (b), (c); Cal. Rules of Court, rules 4.310, 4.472.)
"Where a defendant has served any portion of [a] 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 [defendant] may receive upon a new commitment for the same criminal act or acts." (§ 2900.1.) Our Supreme Court has held this provision requires the courts "when a sentence is modified while in progress" to credit defendant "with all actual days [defendant] had spent in custody, whether in jail or prison, up to that time" it enters the new sentence. (People v. Buckhalter, supra, 26 Cal.4th 20, 37, 41.) The Supreme Court's Buckhalter decision concerned custody credits for a defendant serving a sentence in state prison, but the parties have identified no reason to think section 2900.1 applies differently to county jail sentences imposed under section 1170, subdivision (h).
Here, the trial court awarded Vandiver 45 days of presentence custody credits and 44 days of presentence conduct credits as of June 25, 2014, the date of her original sentencing. The trial court did not alter the credit award on July 9, 2015 (as corrected nunc pro tunc), when it modified her sentence after partially granting her Proposition 47 petition. Instead, the court indicated the award of credits in the June 25, 2014 minute order would remain in "full force and effect." This was error.
Vandiver is correct to focus on July 9, 2015 rather than December 28, 2015. "[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." (In re Candelario (1970) 3 Cal.3d 702, 705.) "'The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made.'" (Estate of Eckstrom (1960) 54 Cal.2d 540, 544.) Thus, the effect of the court's December 28, 2015 order was to correct the record respecting the sentence set out in the July 9, 2015 minute order.
"As we have seen, under section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody . . . and awarded such credits" along with applicable conduct credits. (People v. Buckhalter, supra, 26 Cal.4th at pp. 36-37, 41.) We agree with Vandiver that, as the minute orders stand, there is a risk jail authorities may be misled to credit her for time served on the modified sentence beginning July 9, 2015, give her 89 days of presentence credits, and fail to account for the fact that she also served jail time between June 25, 2014 and July 9, 2015. Since the duty to calculate credits lies with the sentencing court, the proper remedy is to remand. (Id. at pp. 23, 29, 41.)
III
DISPOSITION
We reverse the sentence and remand for the sentencing court to recalculate defendant's credits so they include custody credits reflecting the actual time she served in jail through July 9, 2015.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: HOLLENHORST
Acting P. J. MILLER
J.