Filed 1/29/19 P. v. Padilla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Modified with directions.

Edward J. Haggerty, 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, Senior Assistant Attorney General, and Michael Pulos and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jesus Padilla was convicted on 20 counts, all arising out of his sexual abuse of a child. He was sentenced to a total indeterminate term of 60 years to life plus a total determinate term of 18 years four months.

In his previous appeal, we affirmed with respect to the conviction; however, we reversed with respect to the sentence and remanded for resentencing. On remand, the trial court corrected the errors that we had identified and imposed the same total sentence.

Defendant appeals again, contending:

1. On three counts, the trial court intended to sentence defendant to six years (the midterm) but mistakenly sentenced him to eight years (the upper term) instead.

2. The trial court erred by failing to recalculate defendant’s actual custody credits.

We agree with both contentions. We will modify the judgment accordingly.

I

INCONSISTENT STATEMENT OF THE SENTENCE ON THREE COUNTS

Defendant contends that, on three counts, the trial court erroneously sentenced him to eight years (the upper term) when it intended to sentence him to six years (the midterm).

A. Additional Factual and Procedural Background.

Defendant was convicted on eight counts (counts 1, 8, 9, 10, 11, 15, 16, and 19) of a nonforcible lewd act on a child under 14. (Pen. Code, § 288, subd. (a).) The sentencing range for this crime is three, six, or eight years. (Ibid.)

At the original sentencing hearing, on these nonforcible lewd act counts, the trial court sentenced defendant to six years.

At the resentencing hearing, the trial court stated, “I intend to give you the identical sentence to what I gave you before . . . .” On counts 10, 11, 15, 16, and 19, it sentenced defendant to six years, the midterm, to be served concurrently. On counts 1, 8, and 9, however, it stated that it would “impose the mid-term of eight years and run that concurrently . . . .” (Italics added.)

Both the sentencing minute order and the abstract of judgment reflect a “midterm” sentence of eight years on these three counts. (Capitalization altered.)

B. Discussion.

As noted, defendant contends that the trial court erred by sentencing him to eight years rather than six years. The People concede that the trial court “misstated” the sentence but argue that it is “unclear” what it intended and therefore we should remand to “clarify the intended sentence.”

The People, however, also state, “It appears the trial court most likely intended to impose the midterm of six years on counts 1, 8, and 9.” Given the trial court’s pronouncement that it intended to impose the same sentence as before, we consider it not just most likely but abundantly clear that it actually intended to impose a midterm sentence of six years on these three counts. Thus, we see no need for a remand. Rather, we will modify the judgment. (Pen. Code, § 1260.)

II

FAILURE TO RECALCULATE ACTUAL CUSTODY CREDITS

Defendant contends that the trial court erred by failing to recalculate his actual custody credits.

Preliminarily, the People respond that defendant is required to raise this issue in the first instance in the trial court. They cite Penal Code section 1237.1, which, as relevant here, provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court . . . .”

It is well-established that Penal Code section 1237.1 applies only when the calculation of presentence custody credits is the sole issue on appeal; by contrast, “when other issues are litigated on appeal, . . . section 1237.1 ‘does not require defense counsel to file [a] motion to correct a presentence award of credits in order to raise that question on appeal.’ [Citation.]” (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12; accord, People v. Donan (2004) 117 Cal.App.4th 784, 793; People v. Jones (2000) 82 Cal.App.4th 485, 493; People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3; People v. Acosta (1996) 48 Cal.App.4th 411, 420-427.) This is because, in enacting Penal Code section 1237.1, it was “the clear legislative intention that principles of judicial economy be advanced . . . .” (Acosta, supra, at p. 426.) “[I]f there are other appellate issues . . . , requiring a motion be made in the trial court in order to raise the question on appeal no longer is an economical expenditure of public moneys.” (Id. at p. 427.) Here, defendant is also raising another contention.

The People argue, however, that this “other issues” exception should not apply here, because both claimed errors could be corrected in the trial court, and this would promote judicial economy. We disagree, for two reasons.

First, the trial court no longer has jurisdiction to deal with defendant’s other issue. “‘“[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun.”’ [Citation.]” (People v. Littlefield (2018) 24 Cal.App.5th 1086, 1089.) There are “limited exceptions to that general principle . . . [including when] a court corrects ‘a clerical error, but not a judicial error, at any time’ with clerical error defined as ‘one that is made in recording the judgment’; and [when] the court ‘at any time’ corrects an unauthorized sentence. [Citation.]” (Id. at pp. 1089-1090.) “[T]he failure to award earned credits . . . results in the imposition of an unauthorized sentence, which, as noted above[,] . . . may be corrected at any time. [Citations.]” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 926.) By contrast, the imposition of the upper term in the erroneous belief that it is the midterm is a judicial error, not a clerical error (i.e., it is not made in recording the judgment), and it does not result in an unauthorized sentence.

Second, the “other issues” exception has the virtue of stating a bright-line test. If we were to hold that it must be applied on a case-by-case basis, depending on the nature of the other issues raised, that would make it hard for counsel to know in advance whether it is appropriate to file an appeal at all, much less whether it is appropriate to raise a credit issue.[1]

Turning to the merits, the People concede that the trial court erred. We agree. The trial court failed to recalculate actual custody credit, as required. (Pen. Code, § 2900.1; People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37-41.)[2] In preparing the abstract of judgment, the clerk simply copied the amount of actual custody credit (1,247 days) from the original sentencing.

Moreover, defendant asserts that the correct figure for his actual custody credits is 1,986 days, and the People concede that this calculation “appears correct.” Accordingly, rather than remand, we will modify the judgment.

III

DISPOSITION

The judgment is modified so as to: (1) change the sentences on counts 1, 8 and 9 to the midterm of six years, to be served concurrently, and (2) award defendant 1,986 days of actual custody credit. The modified judgment is affirmed.

The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CUNNISON

J.*