Filed 1/30/18 P. v. Eiskas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez and Patricia Garcia, Judges. Affirmed in part, reversed in part and remanded with directions.

Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

Factual and Procedural Background

In October 2015, defendant Douglas Riskas pleaded guilty in case number SCS282499 to one count of grand theft and admitted three prison priors. In the change of plea form, he indicated he stole goods from Nordstrom Rack and stated the value of the property was worth more than $950. At a restitution hearing conducted after sentencing, it was determined that the actual value of the stolen goods was $929.85.

In November 2015, Riskas was sentenced in this case and an unrelated case, SCD263956.[1] In accordance with plea bargains reached in these cases, the trial court sentenced him to a six-year prison term in SCD263956 and a concurrent six-year prison term in SCS282499. This appeal concerns only SCS282499. Riskas acknowledges that the resolution of this appeal will have no effect on the sentence or amount of time he will remain in custody in the unrelated case.

In July 2016, Riskas filed a pro. per. petition for writ of habeas corpus arguing that because the value of the property he stole from Nordstrom Rack was less than $950, he was entitled to have his felony conviction redesignated as a misdemeanor pursuant to Proposition 47. Judge Rodriguez granted the petition and on January 25, 2017, resentenced Riskas to a term of 180 days in county jail, to be served concurrently with the six-year prison sentence he was already serving in SCD263956. Relevant to this appeal, the court awarded him presentence credits of 72 actual days and 72 days of conduct credit (Pen. Code, § 4019), for a total of 144 days.[2]

Riskas filed a timely appeal challenging the custody credits awarded at his resentencing hearing and obtained a certificate of probable cause. Within three weeks, he filed an application to correct the presentence custody credits. On March 30, the trial court issued an order modifying the custody credits, awarding 152 actual days and 152 of Penal Code section 4019 credits, for a total of 304 days nunc pro tunc to January 25, 2017. The court did not indicate how it arrived at these figures.

On April 17, Riskas filed a second application to correct the presentence credits, arguing he was entitled to 483 days of actual presentence custody credits (calculated from his arrest date of September 30, 2015, to the date of his misdemeanor sentencing on January 25, 2017). He requested that he be sentenced to "time served" in SCS282449.

On May 11, Judge Garcia, who was assigned to consider the second application, referenced Penal Code section 2900.l,[3] which addresses the calculation of custody credits upon resentencing, but declined to address Riskas's request because the appeal filed in this case was still pending.

Discussion

It is well settled that as a general rule, if a case is on appeal, the trial court has no jurisdiction to take any further action in the matter until the appeal is resolved and a remittitur has issued. (People v. Perez (1979) 23 Cal.3d 545, 554; People v Awad (2015) 238 Cal.App.4th 215, 220.) However, where, as here, a case is pending on appeal and concerns custody credits, Penal Code "section 1237.1 vests the trial court with the power to rule on a request for additional credits." (People v Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8; People v Scarbrough (2015) 240 Cal.App.4th 916, 923.) Thus, we agree with both Riskas and the Attorney General that Judge Garcia erred when she concluded she had no authority to rule on Riskas's second application challenging the custody credits Judge Rodriguez awarded on March 30, 2017.

As a result of this error, Riskas requests that we direct the trial court to award credits totaling 968 days (484 actual days and 484 Pen. Code, § 4019 credits) or, in the alternative, remand the matter and direct the trial court to calculate and award all actual and conduct credit. The People maintain it is unclear from the record whether Riskas's custody credits have been calculated correctly and thus agree remand is warranted. Both acknowledge that recalculating credits will have no practical effect on Riskas in light of his sentence in SCD263956.

We agree remand is necessary. However, because it is undisputed that Riskas has served more than 180 days of actual custody in SCS282499, we see no value in requiring counsel, the probation department and the court to participate in a hearing to recalculate credits that will not afford him a benefit. Instead, we remand this matter to the trial court with directions to amend the judgment to reflect Riskas has served his 180-day sentence in SCS282499.

DISPOSITION

The matter is remanded to the superior court with directions to amend the judgment in SCS282499 as set forth in this opinion. In all other respects the judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.