Filed 6/21/22 P. v. Castillo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.†

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted defendant Richard Yanez Castillo, Jr., of one count of assault with a deadly weapon (count 1) with a gang enhancement, and one count of gang participation (count 2) after multiple inmates attacked a fellow inmate in their prison unit. Defendant admitted he had two prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a)(1) that also qualified as strike offenses. The court denied defendant’s motion to strike his prior strikes and sentenced defendant to 25 years to life in prison for the assault conviction. This term was enhanced by an additional five years for one prior serious felony enhancement and another five years for a gang enhancement. The court also sentenced defendant to 25 years to life on the substantive gang conviction plus an additional five years for one of the prior serious felony enhancements, and ordered that term to run concurrently with defendant’s sentence for assault.

We previously remanded this matter for resentencing to permit the trial court to exercise its discretion regarding whether to dismiss defendant’s prior serious felony enhancements in light of Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393) and ordered the court to prepare an amended abstract of judgment reflecting that defendant’s sentence on count 2 is stayed.[1] In all other respects, we affirmed the judgment.

On remand, the court stayed count 2 and reimposed the five-year gang enhancement on count 1 for a total term of 30 years to life. The court stated it was going to dismiss or stay the punishment on both Penal Code section 667, subdivision (a)(1) enhancements. (Undesignated statutory references are to the Penal Code.) The abstract of judgment lists the section 667, subdivision (a) enhancements as “stayed.”

Defendant now appeals from his resentencing hearing, arguing the court erred by staying his section 667, subdivision (a) enhancements because it only had discretion to strike them. Defendant also asserts the matter should be remanded for the trial court to amend the amount of “credit for time-served” listed on the abstract to reflect the amount of time he had served when he was resentenced, which he asserts is 1,612 days. The People agree the court could either impose or dismiss the section 667, subdivision (a)(1) enhancements and staying them was not an option. They further agree it appears the “court intended to dismiss/strike the enhancements.” But they assert the case should be remanded for the court to exercise its discretion whether to strike or impose the enhancements. They also concede the case should be remanded for the court to calculate the actual time defendant served in custody and to modify the judgment accordingly.

We remand for the trial court to recalculate defendant’s custody credits at the time of resentencing and to prepare an amended abstract of judgment reflecting the dismissed section 667, subdivision (a) enhancements.

FACTUAL AND PROCEDURAL HISTORY

A jury convicted defendant of assault with a deadly weapon with a gang enhancement and a substantive gang offense based on his involvement in a group attack on a fellow inmate. Defendant admitted he had two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) that also qualified as strike offenses. The court denied defendant’s motion made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strikes and sentenced defendant to 25 years to life in prison for the assault conviction. This term was enhanced by an additional five years for one prior serious felony enhancement and another five years for the gang enhancement, for a total aggregate prison term of 35 years to life. The court also sentenced defendant to 25 years to life on the substantive gang conviction, plus an additional five years for the prior serious felony enhancement, which it ordered to run concurrently with defendant’s sentence for assault.

We previously remanded this matter for resentencing to permit the trial court to exercise its discretion regarding whether to dismiss defendant’s prior serious felony enhancements in light of Senate Bill 1393 and ordered the court to prepare an amended abstract of judgment reflecting that defendant’s sentence on count 2 for gang participation was stayed. In all other respects, we affirmed the judgment.

At the new sentencing hearing, the court held:

“With respect to the enhancements under … section 667(a)(1), the Court had previously stayed or dismissed one of those enhancements and imposed the other; however, the Court is going to dismiss it and—or stay the punishment on both enhancements under [section] 667(a)(1). And that’s because a five-year enhancement is already imposed under [section] 186.22(b)(1)(B) and enhancement to Count 1. And the Court opines that a 25-to-life, plus a five-year enhancement, is a reasonable punishment for his crimes. So that’s the—that covers all the resentencing issues.”

The court then explained the sentence to defendant, stating:

“The bottom line, [defendant], is you are still facing a 25-to-life, plus a five-year gang enhancement. So you would be eligible for parole after 30 years, or unless CDC and parole changes the rules. But that’s—currently, you are not eligible for parole until you serve the 25-year-to-life sentence plus the five years for the gang enhancement.”

Following the resentencing hearing, an amended abstract of judgment was prepared that reflects the section 667, subdivision (a)(1) enhancements were imposed and stayed. The minute order also states the court stayed the section 667, subdivision (a)(1) enhancements. The new abstract of judgment also lists the same amount of custody credits listed on the original abstract of judgment after the first sentencing hearing—601 days.

DISCUSSION

I. The Abstract of Judgment Must Be Updated to Reflect the Stricken Enhancements

Defendant first contends the court was not authorized to stay his two section 667, subdivision (a) prior serious felony enhancements. He contends the court only had authority to impose these enhancements or to strike or dismiss them pursuant to section 1385, subdivision (b). Accordingly, he asserts remand is necessary for the court to strike the two enhancements and amend the abstract of judgment to reflect the dismissed enhancements. The People agree the court only had the option of imposing or dismissing/striking the section 667, subdivision (a)(1) enhancements and that staying them “was not an option.” They also agree it appears the “court intended to dismiss/strike the enhancements,” so remand is necessary on that basis. However, they contend, because the court also stated it was going to “stay” the punishment, the trial court must exercise its discretion whether to impose or strike/dismiss these enhancements.

Section 1385, subdivision (a) states in part that “[t]he judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Section 1385, subdivision (b)(1) provides that if a court “has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice ….” And “Senate Bill 1393 removed provisions that prohibited a trial court from striking a serious felony enhancement in furtherance of justice under section 1385.” (People v. Stamps (2020) 9 Cal.5th 685, 700.)

Accordingly, we agree with the parties the plain language of section 1385 only permitted the trial court to strike or dismiss, rather than stay, the section 667, subdivision (a)(1) enhancements. (See People v. Lopez (2004) 119 Cal.App.4th 355, 364 [“Ordinarily, an enhancement must be either imposed or stricken ‘in furtherance of justice’ under … section 1385. [Citations.] The trial court has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice”]; People v. Haykel (2002) 96 Cal.App.4th 146, 151 [“‘Unless a statute says otherwise, an enhancement may be imposed or stricken, but … may not be stayed; to do so is an illegal sentence’”].)

Section 1260 provides that we may modify the judgment and remand the cause to the trial court “for such further proceedings as may be just under the circumstances.” And here, the parties agree the court intended to dismiss the prior serious felony enhancements. Indeed, the court stated its intention to “dismiss” or “stay” these enhancements and reiterated the total sentence it intended to impose—25 years to life plus five years for the gang enhancement. Thus, the record is clear the court did not intend to punish defendant for these enhancements.

Consequently, we cannot conclude a resentencing hearing is required to permit the court to reexercise its discretion regarding whether to dismiss the section 667, subdivision (a) enhancements. Rather, we conclude it is “just under the circumstances” to direct the trial court to prepare an amended abstract of judgment reflecting the dismissed section 667, subdivision (a)(1) five-year enhancements.

II. Custody Credit Must Be Updated

Defendant also argues the matter must be remanded for the trial court to amend the abstract of judgment to reflect his actual custody credit at the time of resentencing. He notes he was originally sentenced on September 10, 2018, to a term of 35 years to life and the resulting abstract of judgment from that sentencing hearing reflects 601 days of presentence custody credits. He was then resentenced on June 11, 2021, to 30 years to life, but the abstract of judgment following the resentencing hearing lists the same number of custody credits as the 2018 abstract of judgment—601 days. No supplemental probation report was provided at the resentencing hearing and the court did not discuss defendant’s actual time credits. He asserts the abstract of judgment from the resentencing hearing must be amended to reflect his actual presentence time in custody, which he states was 1,612 days as of the date of the resentencing hearing, June 11, 2021, and based upon an arrest date of January 12, 2017. The People agree the case should be sent back for the trial court to recalculate defendant’s custody credits and, accordingly, to prepare a new abstract of judgment. They do not expressly agree or disagree with defendant’s calculation.

Section 2900.5, subdivision (a) provides for the application of custody credit to a defendant’s term of imprisonment: “In all felony … convictions, … when the defendant has been in custody, … all days of custody of the defendant … shall be credited upon his or her term of imprisonment … in the discretion of the court imposing the sentence.” And the California Supreme Court has held: “When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the ‘subsequent sentence.’” (People v. Buckhalter (2001) 26 Cal.4th 20, 23.)

Accordingly, we agree with the parties the abstract of judgment must be corrected to reflect defendant’s custody credit at the time of resentencing. At the original sentencing hearing, the court calculated defendant’s credits from the date of the offense, January 12, 2017, to the date of that sentencing hearing (Sept. 10, 2018) to be 601 actual days. The original abstract of judgment for the determinate term also lists defendant’s custody credit as 601 days. Notably, the probation report dated July 19, 2018, submitted at the original sentencing hearing, lists defendant’s section 2900.5 time served credits to be 1,696 days from May 28, 2013 to January 18, 2018 and “**0” days for the period from January 19, 2018 to July 19, 2018. There is a note in the report that “**” denotes “Credits to be applied to Case 17CR-00540B” (this case). The July 19, 2018, probation report also separately states its recommendation that defendant “be committed to the California Department of Corrections with credit for time already served of 181 days as of July 19, 2018, plus 180 days conduct credit.”

In light of the lack of affirmative evidence verifying defendant’s actual custody credits applicable to this case at the time of the resentencing hearing, we conclude a remand is appropriate for the trial court to verify the dates defendant was in custody and the time served to be applied in this case. (See In re Antwon R. (2001) 87 Cal.App.4th 348, 353 [remand appropriate for trial court to calculate custody credit where record does not provide enough information to calculate credit on appeal].) Accordingly, we remand the matter for the court to recalculate the correct amount of custody credit and to issue an updated abstract of judgment reflecting this change.

DISPOSITION

The matter is remanded to the trial court to calculate defendant’s amount of actual custody credit applicable to this case at the time of the resentencing hearing, and to include the recalculated custody credits in an amended abstract of judgment. The amended abstract of judgment must also reflect that defendant’s section 667, subdivision (a)(1) five-year enhancements were dismissed. The court is directed to forward the new abstract of judgment to the Department of Corrections and Rehabilitation.

*Before Detjen, Acting P. J., Franson, J. and Peña, J.

†Retired Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1]In our prior opinion, we also noted the court failed to sentence defendant on his second prior serious felony conviction though it was not authorized to strike the enhancement at the time of the original sentencing hearing; thus, his initial sentence was unauthorized.