Fear Not Law Articles: P. v. Wider

P. v. Wider

Filed 9/30/11 P. v. Wider CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A128590/A130358

v. (Napa County Super.
Ct. No. CR144766)
ERIC STEVEN WIDER,

Defendant and Appellant.
_____________________________________/

In February 2010, appellant Eric Steven Wider entered into a negotiated disposition that resolved multiple criminal cases pending against him in Napa County. In May 2010, the trial court sentenced him to state prison for 15 years. The court later granted appellant’s motion to recall the sentence and reduced his sentence to 10 years.
Appellant contends the court erred by failing to recalculate his custody credits when it resentenced him. The People agree. We modify the judgment to award appellant 189 days of credit. We direct the trial court to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010, appellant pleaded guilty or no contest in three criminal cases pending against him in Napa County. In case No. CR144621, appellant pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377)[1] and to transporting methamphetamine (§11379). In case No. CR149060, appellant pleaded guilty to the same offenses and admitted he committed the offenses while he was on bail (Pen. Code, § 12022.1). In case No. CR144766, appellant pleaded no contest to possession of methamphetamine for sale (§ 11378) and admitted various sentencing enhancements (§ 11370.2, Pen. Code, §§ 667.5, subd. (b), 1170.12). The trial court designated case No. CR144766 as the lead case.
On May 7, 2010, the court sentenced appellant to state prison for 15 years in case No. CR144766. In case Nos. CR149060 and CR144621, the court imposed state prison terms to run concurrently with the term imposed in the lead case. The court awarded appellant six days of custody credits and two days of presentence conduct credits in case Nos. CR144766 and CR144621 and one day of custody credit in case No. CR149060.
Counsel for appellant made an informal request to recall appellant’s sentence pursuant to Penal Code section 1170, subdivision (d) and, on September 15, 2010, the court recalled the sentence. At the resentencing hearing on November 3, 2010, the court sentenced appellant to 10 years in state prison in case No. CR144766. In case Nos. CR149060 and CR144621, the court imposed prison sentences to run concurrently with the sentence in the lead case. The court awarded appellant “66 days of presentence custody time credits plus two days of conduct credits for a total of eight days. And make that nunc pro tunc back to May 7, 2010.”[2] The abstract of judgment issued following resentencing indicates appellant is entitled to eight days of credit in case No. CR144766, comprised of six actual days and two days of presentence conduct credit. It also indicates appellant is entitled to one day of actual credit in case No. CR149060 and no credits in case No. CR144621.
Appellant filed two notices of appeal. We consolidated the appeals.

DISCUSSION
Pursuant to Penal Code section 1170, subdivision (d), the trial court retains jurisdiction to recall a sentence and commitment on its own motion at any time within 120 days of the original sentence. The statute has been construed as “confer[ring] upon the trial court broad authority to ‘recall a sentence on its own motion for any reason rationally related to lawful sentencing [and] then impose any otherwise lawful resentence suggested by the facts available at the time of resentencing.’” (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757, quoting Dix v. Superior Court (1991) 53 Cal.3d 442, 456; see also People v. Johnson (2004) 32 Cal.4th 260, 265.)
Upon resentencing, “[c]redit shall be given for time served.” (Pen. Code, § 1170, subd. (d).) “Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (Pen. Code, § 2900.1.) The trial court is obligated, “in its new abstract of judgment, to credit [the defendant] with all actual days he had spent in custody, whether in jail or prison, up to that time.” (People v. Buckhalter (2001) 26 Cal.4th 20, 37.)
The parties agree the court erred by failing to award appellant credit for the 181 days he spent in custody between his original sentencing hearing on May 7, 2010 and his resentencing hearing on November 3, 2010. They are correct. The abstract of judgment should reflect an additional 181 days of actual custody credit for the period beginning May 7, 2010 and ending November 3, 2010, plus six days of custody credit originally awarded, plus two days of presentence conduct credit originally awarded. Appellant is therefore entitled to a total of 189 days of credit.
DISPOSITION
The judgment is modified to award appellant 189 days of credit. The trial court is directed to prepare an amended abstract of judgment reflecting that appellant is entitled to the following: 181 days of custody credit for the time period beginning May 7, 2010 and ending November 3, 2010, plus six days of custody credit originally awarded, plus two days of presentence conduct credit originally awarded for a total of 189 days of credit. The trial court is to forward the amended abstract of judgment to Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

_________________________
Jones, P.J.

We concur:

_________________________
Simons, J.

_________________________
Bruiniers, J.

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[1] Unless otherwise noted, all further statutory references are to the Health and Safety Code.

[2] We assume the reference to eight days is a typographical error.

Description	In February 2010, appellant Eric Steven Wider entered into a negotiated disposition that resolved multiple criminal cases pending against him in Napa County. In May 2010, the trial court sentenced him to state prison for 15 years. The court later granted appellant's motion to recall the sentence and reduced his sentence to 10 years. Appellant contends the court erred by failing to recalculate his custody credits when it resentenced him. The People agree. We modify the judgment to award appellant 189 days of credit. We direct the trial court to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
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