P. v. Anderson

Filed 4/21/06 P. v. Anderson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In a previous appeal (case no. H025640), we affirmed defendant Rodney Anderson's convictions on various felony charges, but found sentencing error and remanded for resentencing. In this appeal, defendant contends his new sentence should be reversed because the trial court erred by failing to obtain and consider a supplemental probation report before imposing his new sentence and by not recalculating his custody credits.

We conclude that defendant has forfeited any claim of error arising out of the court's failure to consider a supplemental probation report at resentencing. In any event, the court did not abuse its discretion when it failed to obtain a supplemental probation report. We conclude however that the court erred when it failed to recalculate defendant's custody credits to include credit for actual time served between the date of the first sentencing hearing and the date he was resentenced. We shall remand for the trial court to recalculate the custody credits.

Procedural History[1]

Defendant was convicted in a jury trial of two counts of conspiracy to manufacture methamphetamine (Pen. Code,[2] § 182, subd. (a)(1); Health & Saf. Code, § 11379.6, subd. (a)), one count of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), and one count of providing space for the sale or manufacture of a controlled substance (Health & Saf. Code, § 11366.5, subd. (a)). With regard to the first conspiracy count and the manufacturing charge, the jury found true enhancement allegations that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)).

In a bifurcated proceeding, the court found true enhancement allegations that defendant had been convicted of two prior serious felonies that qualified as strikes under the Three Strikes Law (§§ 667, subds. (b) – (i); 1170.12).

The probation officer prepared a report for defendant's first sentencing hearing. At that hearing on February 4, 2003, the court granted defendant's Romero[3] motion and struck one of his strike priors. The court designated count 1, the first conspiracy to manufacture methamphetamine count, the principal term, sentenced defendant to the upper term of seven years on that count, doubled that sentence to 14 years because of the strike prior pursuant to the Three Strikes law, and added four years for the enhancement for being personally armed with a firearm, for a total of 18 years. The court stayed the sentences on the other three counts pursuant to section 654.

In his previous appeal (H025640), defendant challenged his conviction on a variety of grounds. We rejected his claims of error, except for his contention that the court had erred by imposing the four-year enhancement (§ 12022, subd. (c)) on count 1, one of the conspiracy to manufacture methamphetamine counts. Defendant argued that the enhancement only applies to cases involving the felonies that are enumerated in section 12022, subd. (c)[4] and that the enhancement may not be imposed where the underlying charge is conspiracy, since conspiracy is not one of the felonies enumerated in the statute. The Attorney General correctly conceded the error. The Attorney General argued that since the same enhancement was imposed on count 3, the manufacturing charge (Health & Saf. Code, § 11379.6), and manufacturing is one of the offenses enumerated in section 12022, subdivision (c), the matter should be remanded to the trial court to reexamine and, if necessary, revise its discretionary sentencing choices. We agreed and remanded for resentencing.

Defense counsel did not request a supplemental probation report for the April 6, 2005 resentencing hearing. Defense counsel argued in favor of a 14-year sentence and against imposing the four-year enhancement, on the grounds that defendant was not a young man and had undergone triple bypass surgery since he had last appeared before the court. Defendant also addressed the court. He advised the sentencing judge that he had had heart surgery, that he was â€