P. v. Hamblin
Filed 7/11/13 P. v. Hamblin CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHEN CHRISTOPHER
HAMBLIN,
Defendant and Appellant.
C071456
(Super. Ct. No. F4514)
which the parties largely agree.
In early 2010, pursuant to a plea
bargain, defendant Stephen Christopher Hamblin admitted several counts of
molestation involving two victims and was sentenced to
a state prison term of 16 years four months.
Near the end of 2010, in a prior
appeal in this matter, we reversed this judgment and remanded to determine
whether any of the charges to which defendant pleaded guilty were time-barred;
if so, defendant could withdraw his plea.
We issued our remittitur on March 3, 2011. ( ADDIN BA xc <@ocsn> xl 17 s
HFLMIZ000005 xpl 1 l "
29, 2010, C064030)
[nonpub. opn.].)
On remand, the parties agreed that
defendant would not withdraw his plea and he would receive a prison term of 14
years. Defendant was resentenced
accordingly on June 18, 2012; the trial court awarded defendant, among
other credits, 889 days of actual time credit in prison (from the original
sentence date of January 11, 2010, through the date of this resentence), and
specified that the Department of Corrections and Rehabilitation
would determine the conduct credits for these 889 days.
Now, on appeal again, defendant
contends, and the People agree, (1) the abstract of judgment must be corrected
to reflect the agreed resentence term of 14 years, and (2) the trial court
erred in failing to determine defendant’s presentence custody conduct credit
for “phase III†time, measured from the date of our reversal remittitur to the
date of resentencing.
DISCUSSION
I. Abstract of Judgment
The abstract of judgment
incorrectly reflects the original sentence of 16 years four months rather than
the 14-year term agreed to on remand.
will order the abstract corrected. ( ADDIN BA xc <@cs> xl 45 s HFLMIZ000001
xhfl Rep xpl 1 l "
Cal.4th 181, 185" People
v. Mitchell (2001) 26 Cal.4th 181, 185.)
II. Phase III Presentence Custody Conduct Credits
Defendant contends the trial
court should have awarded him presentence custody conduct credits under ADDIN
BA xc <@st> xl 23 s HFLMIZ000002 l "Penal Code § 4019" Penal Code section
4019
from the date of our reversal remittitur in case No. C064030 (Mar. 3,
2011) to the date
he was resentenced (June 18, 2012).
The People agree. So do we.
“Where a defendant has served any
portion of his sentence under a commitment based upon a judgment which judgment
is subsequently declared invalid . . . , such time shall be
credited upon any subsequent sentence he may receive upon a new commitment for
the same criminal act or acts.†( ADDIN BA xc <@osdv> xl 8 s
HFLMIZ000007 xpl 1 l "§ 2900.1" § 2900.1.)
In this connection, our state
Supreme Court has identified four “phases†of custody: I—initial arrest to initial sentencing;
II—initial sentencing to reversal remittitur; III—reversal remittitur to
resentencing; and IV—after resentencing.
(
ADDIN BA xc <@cs> xl 39 s HFLMIZ000003 xhfl Rep xpl 1 l "In re Martinez (2003)
HFLMIZ000003 xpl 2 Martinez).)
A defendant who obtains a reversal
on appeal, like defendant here, is entitled to accrue conduct credits as a
presentence inmate for phases I and III.
(
ADDIN BA xc <@cs> xl 47 s HFLMIZ000004 xhfl Rep xpl 1 l "People v. Donan (2004)
HFLMIZ000004 xpl 2 Donan);
see ADDIN BA xc <@$cs> xl 36 s
HFLMIZ000003 xhfl Rep xpl 1 Martinez,
Here, the trial court has already
properly calculated defendant’s phase I time at 312 actual days (plus 156 days
of good time/work time conduct credits under ADDIN
BA xc <@$st> xl 12 s HFLMIZ000002 xpl 1 section 4019).
Defendant’s conduct credits for his
phase II time of 415 days are to be determined by the Department of Corrections
and Rehabilitation. ( ADDIN BA xc <@$cs> xl 39 s
HFLMIZ000004 xhfl Rep xpl 1 Donan,
p. 792.)
We must remand this matter for the
trial court to determine the conduct credits under ADDIN
BA xc <@$st> xl 12 s HFLMIZ000002 section 4019 for
defendant’s phase III time of 474 actual days.
(See ADDIN BA xc <@$cs> xl 49 s
HFLMIZ000004 xhfl Rep xpl 1 Donan,
determines custody conduct credits under ADDIN
BA xc <@$st> xl 12 s HFLMIZ000002 xpl 2 section 4019 for phases I and III, and
Department of Corrections and Rehabilitation determines custody conduct credits
for phase II time].)
DISPOSITION
This matter is remanded for the
trial court to determine the conduct credits under ADDIN
BA xc <@$st> xl 12 s HFLMIZ000002 section 4019 applicable to defendant’s phase
III time of 474 actual days. The trial
court is directed to prepare an amended abstract of judgment reflecting: the corrected aggregate sentence of 14 years,
as specified herein; the phase I time of 312 actual days plus 156 days of
conduct credit; the phase II time of 415 actual days; and the phase III time of
474 actual days plus the conduct credit determination as to those 474
days. The trial court is to forward a
certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects,
the judgment is affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
HULL , J.
name="_ftn1" title="">[1] Pursuant to defendant’s request for judicial
notice, we have incorporated herein the file in defendant’s prior appeal, case
No. C064030.
name="_ftn2" title="">[2] Under the resentencing scheme, count 12 is
the principal term with a midterm sentence of two years (rather than three
years); counts 3 and 4 are concurrent eight-month sentences (rather than
consecutive); and all other counts are as previously sentenced, for an
aggregate prison term of 14 years (a 28-month reduction to the original
aggregate sentence of 16 years, four months).
