THE PEOPLE v. JEFFREY TYRONE JONES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This is the second appeal taken from a conviction for domestic violence.   After the first appeal, we remanded the case to the trial court to correct certain sentencing errors.   In this appeal, we again remand the matter to the trial court.   This time, we remand to direct the trial court to issue an amended abstract of judgment which reflects the correct number of actual custody credits due appellant.   The judgment is affirmed in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

A summary of the facts underlying the conviction is as follows: ¹  Lorraine W. and appellant began dating in early 2007 and Lorraine allowed appellant to move in with her shortly thereafter.   Their relationship was marred by several instances of verbal and physical abuse, which culminated in an incident on July 29, 2007, when appellant broke Lorraine's nose, gave her two black eyes and other injuries.   A jury convicted appellant of corporal injury to a cohabitant (Pen.Code,2 § 273.5, subd. (a);  count 1), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1);  count 2) and making criminal threats (§ 422;  count 3) as a result of the July 29 incident.   The jury also found appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (e) as to count 2. After appellant waived his right to a jury trial, the trial court found true two prior convictions for corporal injury to a cohabitant (§ 273.5, subds. (e)(1)), and a strike under the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d).)  Appellant was sentenced to prison for an aggregate term of 14 years and four months.

In his first appeal, appellant contended that the trial court abused its discretion when it denied his request to represent himself and refused to allow him to present expert testimony.   We found no error by the trial court but reversed and remanded for resentencing to correct certain errors.   In particular, the trial court's finding that appellant had, “within the past 7 years, suffered” two convictions for corporal injury to a cohabitant (§ 273.5, subd. (e)(1)) was inaccurate.   The record showed that both priors occurred more than seven years before the instant offense, making them ineligible as priors under section 273.5, subd. (e)(1).   As a result, we vacated the true finding under section 273.5, subdivision (e)(1).   The trial court's imposition of a four-year middle term on count one was therefore incorrect since section 273.5 prescribes a triad of two, three or four years in the absence of a true finding under section 273.5, subdivision (e)(1).   We further noted that the great bodily injury enhancement under section 12022.7, subdivision (e) had been mistakenly imposed on count one instead of count two and that a $20 court security fee was to be imposed for each conviction. (§ 1465.8, subd. (a)(1);  People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)

At the re-sentencing after remand, on March 19, 2010, appellant asked the trial court to reconsider its denial of a previous Romero ³ motion to dismiss a prior strike pursuant to section 1385(a).   It did so.   The trial court considered various letters of support provided by appellant who explained that he was an alcoholic at the time he committed the offenses and that he was currently undergoing treatment.   Appellant told the court he had suffered previous abuse by his father.   The court again denied the Romero motion, finding that appellant's prior record, age and the nature of the offenses did not warrant striking the prior strike.

The trial court then designated count 2, the assault count, as the principal offense.   It imposed the midterm of three years and doubled it to six years as result of the true finding on the prior strike. (§§ 667, subds.(b)-(i), 1170.12 subds. (a)-(d).)  Three additional years were added to the sentence for count 2 pursuant to the great bodily injury enhancement under section 12022.7.   As a result, the sentence on count 2 totaled nine years.   The court further sentenced appellant to one-third the midterm of one year as to count 1 and one-third the midterm of eight months as to count 3. Both sentences were doubled as a result of the prior strike under sections 667, subds. (b)-(i), and 1170.12 subds. (a)-(d) and were ordered to run consecutively to the sentence for count 2. In total, appellant was sentenced to 12 years and four months in state prison.   No changes were made to the credits he earned for time served.   Appellant was also ordered to pay restitution and a $60 court security fee.

Appellant timely filed his notice of appeal on May 5, 2010, and we appointed appellate counsel.   On November 15, 2010, appellant's counsel submitted an opening brief which raised no issues and requested we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ).   Counsel further submitted a sworn declaration that she had informed appellant of the nature of her brief and that he had the opportunity to raise any issues with this Court in a supplemental brief.   We similarly notified appellant of his right to submit a brief raising any relevant issues on November 16, 2010.   We have not received any communication from appellant.

DISCUSSION

After an independent review of the record, we find the trial court acted within its discretion in refusing to grant the Romero motion and sentencing appellant as it did.   However, the trial court made no changes as to the credits for time served.   As a result, the amended abstract of judgment shows the same custody credits as before our initial remand-actual custody credits of 179 days and 25 days conduct credits, correctly calculated at 15 percent under section 2933.1-as recorded in the original abstract of judgment.   This, even though appellant had been incarcerated an additional three years since 2008.   On January 13, 2011, we directed the parties to submit letter briefs addressing the following issue:  “Should the trial court have recalculated custody credits due to appellant on remand and if so, what number of credits should appellant have received?”  (Gov.Code, § 68061.)   The parties submitted letter briefs and after reviewing them, we reverse the judgment to the extent it fails to reflect a recalculation of credits following our initial reversal on appeal.

Our Supreme Court first addressed a very similar custody credits issue in People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter ).   There, the defendant argued that an appellate remand to correct sentencing errors vacated his original sentence and it became as though he had never been sentenced.   Thus, he argued he was entitled to have “all his time in custody until the [ ] resentencing [awarded as] presentence custody.”  (Id. at p. 28, emphasis original.)   The defendant sought presentence custody credit for the entire time as opposed to having some of the credits calculated under the formula that applies to state prisoners serving Three Strikes terms.   In Buckhalter, defendant was likely able to earn “conduct-based credits under a formula more favorable than that which applies to state prisoners serving Three Strikes terms.”  (Id. at p. 28.)   A defendant sentenced to state prison under the Three Strikes law is limited to 20 percent conduct credits. (§§ 667, subd. (c)(5), 1170 subd. (a)(5).)

The court concluded that the defendant was not entitled to have all his time in custody calculated as presentence custody credits.   Instead, the court is to calculate both the pre and postsentence actual time credits.   That is, the actual time in the county jail prior to sentencing, the actual time in state prison, and the actual time the defendant serves in the county jail awaiting the resentencing.   The court also should include the pre-sentence conduct credits earned.   Postsentence conduct credits are to be determined by the Department of Corrections and Rehabilitation (CDCR) under the provisions of sections 2932 subdivision (c) and 2933 subdivision (c).  Even though the defendant was returned to local custody because of the sentencing error, he remained under the initial commitment to CDCR. (Id. at pp. 40-41.)

In reaching its decision, the court distinguished between the credit schemes for presentence and postsentence custody.  (Buckhalter, supra, at p. 29.)   Because a remand solely to correct errors in a sentence that has already begun does not restore the prisoner to presentence status, the prisoner is not entitled to earn conduct-based credits under the more favorable presentence credit scheme.  (Id. at p. 33.)   Nevertheless, the prisoner is entitled to credit for the actual days he spent in custody as service of his sentence under the post sentence credit scheme.   Thus, “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.”  (Id. at p. 41.)

Buckhalter's holding dictates that we reverse the judgment to the extent it failed to recalculate appellant's actual custody credits.   Although the People contend that the trial court does not need to recalculate any custody credits on remand, the decisions on which they rely only serve to affirm Buckhalter's reasoning that a prisoner does not accrue presentence custody credit while awaiting resentencing on remand.  (In re Martinez (2003) 30 Cal.4th 29;  People v. Johnson (2004) 32 Cal.4th 260.)   None of those cases hold that a prisoner awaiting resentencing is not entitled to actual custody credits under a post sentence credit scheme.

DISPOSITION

We reverse the judgment to the extent it failed to reflect the actual custody credits earned by appellant between the time of the original sentence hearing and the resentencing.   We remand the case to the trial court to calculate credits as follows: ⁴  determine the presentence actual and conduct credits, the post-sentence actual time while in prison, and the actual time and conduct credits while in county jail awaiting resentencing.   The trial court is advised to calculate all conduct credits with a 15 percent limitation, given that appellant was convicted of a violent felony. (§ 2933.1.) The trial court is to issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.   We affirm the judgment in all other respects.

BIGELOW, P. J.

We concur:

RUBIN, J. FLIER, J.

FOOTNOTES

FN1. For an extended discussion of the facts surrounding the domestic violence episodes, please see our previous opinion at People v. Jones, No. B205668 (Aug. 31, 2009, B205668) [nonpub. opn.]..  FN1. For an extended discussion of the facts surrounding the domestic violence episodes, please see our previous opinion at People v. Jones, No. B205668 (Aug. 31, 2009, B205668) [nonpub. opn.].

FN2. All further references are to the Penal Code unless otherwise noted..  FN2. All further references are to the Penal Code unless otherwise noted.

FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497..  FN3. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

FN4. Neither party provided us with a calculation of the custody credits due to appellant and the record does not contain enough information to allow us to do so.   In any event, Buckhalter directs we leave it to the trial court to make the proper calculations..  FN4. Neither party provided us with a calculation of the custody credits due to appellant and the record does not contain enough information to allow us to do so.   In any event, Buckhalter directs we leave it to the trial court to make the proper calculations.