Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VA052819 Raul A. Sahagun, Judge.
Jeralyn B. Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
In 1999, Donald Ray Wright (appellant) was convicted of second degree burglary. (Pen. Code, § 459) The trial court sentenced him to a term of 25 years to life in state prison pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12) and imposed the required restitution fines. Eight years later, appellant filed a petition for a writ of habeas corpus, and the trial court granted the writ and ordered resentencing. At resentencing, it sentenced appellant as a second-strike offender to an 11-year prison term and failed to mention the previously-imposed restitution fines.
All further statutory references are to the Penal Code unless otherwise indicated.
He appeals from the order of resentencing and contends that he is entitled to have the notation in the abstract of judgment indicating that he owes restitution fines stricken as that notation constitutes clerical error.
We find no merit in his contention and decline to strike restitution fines from the abstract of judgment. Nevertheless, the court has discovered unraised Buckhalter error in the calculation of presentence credit. (People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter).) Consequently, we will modify the order under review to correct that error and affirm the order under review, as modified.
FACTS
In 1999, appellant was convicted in a jury trial of second degree burglary. The trial court determined that he had four qualifying prior convictions pursuant to the Three Strikes law and sentenced him to a term in state prison of 25 years to life. At sentencing, the trial court imposed a $200 restitution fine and a $200 parole revocation restitution fine. (§§ 1202.4, 1202.45.)
In 2007, appellant filed a petition for a writ of habeas corpus in which he claimed that the trial court had improperly determined the “serious felony” nature of his prior assault conviction pursuant to the decision in People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo) during the court trial on the prior convictions. (§ 1192.7, subd. (c)(23).) In 2008, the trial court granted the writ and ordered resentencing. At resentencing, the trial court struck the prior conviction of assault as the evidence was insufficient to support the finding of a strike. It then reconsidered appellant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and resentenced appellant as a second-strike offender to an aggregate term of 11 years in state prison. During the oral proceedings of resentencing, the trial court omitted any mention of the sections 1202.4 and 1202.45 restitution fines. Nevertheless, the trial court’s minute orders and the amended 2008 abstract of judgment contained entries indicating that the $200 sections 1202.4 and 1202.45 restitution fines had been imposed.
DISCUSSION
I. Correcting the Abstract of Judgment
Appellant contends that because the trial court failed to mention the restitution fines at his resentencing hearing, and the People failed to object to that omission in the trial court, he is entitled to have the restitution fines stricken from the abstract of judgment.
He relies on the rule that the abstract of judgment is not itself the judgment of conviction and cannot prevail over the trial court’s oral pronouncement of judgment to the extent the two conflict. (§§ 1213, 1213.5; People v. Mitchell (2001)26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14, disapproved on another point in People v. Karaman (1992) 4 Cal.4th 335, 348-350.)
He also cites the decision in People v. Tillman (2000) 22 Cal.4th 300 (Tillman) where the Supreme Court refused on appeal to impose sections 1202.4 and 1202.45 restitution fines where the fines had been inadvertently omitted at sentencing. The Tillman court held that as the restitution fines were discretionary, the People could not raise that issue on appeal where they had forfeited the fines’ imposition by failing to object to the omissions in the trial court. (Tillman, supra, at pp. 302-303.)
Had the trial court failed to impose restitution fines at the time of the original judgment, Tillman would apply. But Tillman is distinguishable. Here, the trial court granted relief to appellant during resentencing only insofar as it was necessary to correct the Trujillo error. Section 1484, concerning the remedy to be granted in a habeas proceeding, empowers a trial court to “dispose of such party as the justice of the case may require....” In this case, all that entailed was correcting the Trujillo error by striking the prior conviction of aggravated assault in case No. A464568, resentencing appellant after reconsidering his motion pursuant to Romero, and making a proper calculation of presentence credit pursuant to Buckhalter, supra, 26 Cal.4th at pages 33 through 41.
Having done only that which was necessary to correct the complained-of error, the other critical orders which were part of the original judgment remained intact, including the previous orders imposing restitution fines. Just as a reviewing court has the power to remand with directions that do not inevitably require all of the procedural steps involved in arraignment for judgment and sentencing, so does the trial court similarly have that power after ordering resentencing. (See §§ 1260, 1484; People v. Rodriguez (1998) 17 Cal.4th 253, 258.) The original sentencing orders concerning restitution fines were untainted by the Trujillo error and survived resentencing. (Buckhalter, supra, 26 Cal.4th at p. 34 [“we recently rejected the notion that an appellate remand that requires the... reexercise of sentencing discretion necessarily results in a full resentencing”].)
It is unnecessary for this court to correct the abstract of judgment as the clerk properly included the restitution fines imposed in 1999 in the 2008 amended abstract of judgment.
II. Buckhalter Error
The court discovered unraised Buckhalter error in the record. Upon its discovery, it sent the parties a letter notifying them that this court intends to correct the error and offering them an opportunity to submit letter briefs on the issue of whether a correction is required. The parties filed letter briefs on this issue. They agree that there is Buckhalter error and that this court has properly calculated the additional presentence credit to which appellant is entitled.
At resentencing, the trial court awarded appellant the same presentence credits it had awarded on November 2, 1999. These presentence credits totaled 397 days and consisted of 265 days of actual local credit and 132 days of local conduct credit.
In Buckhalter, the defendant was resentenced after a remand on appeal. He argued that a limited appellate remand for resentencing vacated his original sentence in all respects, his status became as though he had never been sentenced, and he was thus entitled to presentence conduct credits pursuant to section 4019. (Buckhalter, supra, 26 Cal.4th at pp. 22-23.) In denying the defendant section 4019 conduct credits for the period between his original sentencing and resentencing, the court held that once the defendant is committed to prison, his custody is thereafter considered service of his sentence, and a remand with respect to a sentence the defendant is already serving does not render him eligible for conduct credits of the presentence kind. (Buckhalter, supra, at p. 33.) While the court held that appellant was not entitled to additional section 4019 conduct credit, he was nevertheless entitled to local presentence credit for the actual days he had spent in custody prior to resentencing, whether in jail or in prison. The trial court was required to award him such credit at resentencing and to include in the amended abstract of judgment that award of presentence credit. (Buckhalter, supra, at pp. 40-41.)
At resentencing, appellant was entitled to be awarded actual presentence credit of 3,154 days for the period between November 2, 1999, and June 20, 2008. Thus, the proper award of presentence credit was a total of 3,551 days of credit, consisting of 3,419 days of actual presentence credit (3,154 days plus the previously-awarded 265 days of actual credit) and 132 days of section 4019 presentence conduct credit.
The order under review will be corrected and the trial court is directed to send to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the new award of presentence credit.
DISPOSITION
The order under review is modified to award appellant a total of 3,551 days of presentence credit consisting of 3,419 days of actual local credit and 132 days of section 4019 conduct credit. As modified, the order under review is affirmed.
After issuance of the remittitur, the trial court will cause its clerk to prepare an amended abstract of judgment that includes the modified award of 3,551 days of presentence credit and send it to the Department of Corrections and Rehabilitation.
We concur: DOI TODD Acting J., CHAVEZ Acting P. J.