P. v. Benavidez
Filed 10/11/12 P. v. Benavidez CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
REY BENAVIDEZ,
Defendant and Appellant.
G046436
(Super. Ct. No. 08WF1333)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Lance Jensen, Judge.
Affirmed as modified.
Thomas Owen, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Rey
Benavidez of sexual intercourse with a child 10 years or younger, T.C., digital
penetration with a child 10 years or younger, T.C., attempted lewd act upon a
child under 14 years of age, A.L., and misdemeanor indecent exposure after
unlawful entry. Benavidez appealed and
in our prior nonpublished opinion
(
G043412)), we reversed his conviction for committing an attempted lewd act upon
a child under 14 years of age and concluded the trial court failed to make the
requisite findings for imposition of the sex offender fine. We remanded the matter. On remand, the trial court concluded
Benavidez did not have the ability to pay the sex offender fine and struck the
sentence on count 4. The court, however,
refused to award him additional actual credits from the time of his first
sentencing hearing to the date the court struck the sentence on count 4. As we explain below, we conclude Benavidez
was entitled to additional actual credits.
FACTS
Because of the limited
issue on appeal, we need not provide a detailed recitation of the facts, which
can instead be found in our prior nonpublished opinion. (People
v. Benavidez, supra, G043412.)
Suffice it to say, a jury convicted Benavidez of sexual intercourse with
a child 10 years or younger (Pen. Code, § 288.7, subd. (a))
(count
1),
digital penetration with a child 10 years or younger (§ 288.7, subd. (b))
(count
2), attempted lewd act upon a child under 14 years of age (§§ 664, subd. (a),
288, subd. (a)) (count 4), and misdemeanor indecent exposure after unlawful
entry (§ 314, subd. (1)) (count 5). The
trial court sentenced him to a total prison term of 44 years as follows: 25 years to life on count 1, a consecutive
term of 15 years to life on count 2,
a
consecutive upper term of four years on count 4, and a concurrent one year in
jail on count 5. The court ordered him
to pay a $300 fine pursuant to section 290.3.
In our prior opinion,
reversed Benavidez’s conviction for count 4 because the trial court erred in
allowing the prosecutor, after the close of evidence, to amend count 4 to
charge Benavidez with the same offense against a new victim. We also concluded the court did not make the
necessary findings to support imposition of the section 290.3 sex offender fine. Our disposition read, “We reverse Benavidez’s
conviction on count 4. We remand the
matter to the trial court for consideration of whether Benavidez has the
ability to pay the
sex
offender registration fine. In all other
respects, the judgment is affirmed.â€
On remand in November
2011, the trial court ordered the probation department to prepare a
supplemental report. The following
month, Benavidez filed a motion pursuant to People
v. Marsden (1970) 2 Cal.3d 118.
At a hearing the
following month where Benavidez was present, the
trial
court indicated there were two matters before the court, Benavidez’s
discussed in our prior opinion. Based on
our directions in our prior opinion (People
v. Benavidez, supra, G043412), the court struck the section 290.3 sex
offender fine based on the probation department’s finding Benavidez did not
have the ability to pay. The court also
“instruct[ed] . . . the clerk to amend the abstract of judgment to strike the .
. . conviction for count 4, and reflect that the overall sentence now then
becomes 40 years state prison, rather than
44
years state prison.â€
After the court resolved
the Marsden motion, the court
inquired whether there were any additional issues. Defense counsel asserted that based on
20 (Buckhalter), the court needed to
recalculate Benavidez’s actual credits.
The court responded the fact it had struck four years of prison time
“doesn’t necessarily affect the sentencing scheme that was in place at the time
of sentencing, correct.†Defense counsel
agreed. The court stated “that other
than a new
abstract
of judgment indicating that count 4 no longer exists, the court’s been reversed
on that, and that the abstract of judgment deleting the $300 [section] 290.3
fine, that everything else would appear to remain the same.†Defense counsel responded the issue was
whether this hearing was a new sentencing hearing. The prosecutor did not believe it was. The court ruled it was not going to
recalculate actual time but advised defense counsel to bring any contrary
authority to its attention and the court would recalculate actual time.
Benavidez appealed February 1, 2012. On April 20, 2012, Benavidez’s appellate
counsel sent the trial court a letter indicated he was entitled to additional
actual time credits pursuant to Buckhalter,
supra, 26 Cal.4th 20.
DISCUSSION
Section 2900.1
provides: “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.â€
In Buckhalter, the trial court resentenced defendant after a remand on
appeal. Defendant argued that a limited
appellate remand for resentencing vacated his original sentence in all
respects, his status became as though he had never been sentenced, and he was
thus entitled to presentence conduct credits pursuant to
section
4019. (Buckhalter, supra, 26 Cal.4th at pp. 22-23.) In denying defendant section 4019 conduct
credits for the period between his original sentencing and resentencing, the
court held that once a defendant is committed to prison, his custody is
thereafter considered service of his sentence, and a remand with respect to a
sentence the defendant is already serving does not render him eligible for
conduct credits of the presentence kind.
(Buckhalter, supra, 26 Cal.4th
at p. 33.) Although the court held he
was not
entitled
to additional section 4019 conduct credit, defendant was nevertheless entitled
to local presentence credit for the actual days he had spent in custody prior
to resentencing, whether in jail or in prison, pursuant to 2900.1. The California Supreme Court held the trial
court was required to award defendant such credit at resentencing and to
include in the amended abstract of judgment that award of presentence
credit. (Buckhalter, supra, 26 Cal.4th at pp. 40-41.)
Here, after we reversed
Benavidez’s conviction on count 4, the trial court struck the conviction. The court indicated Benavidez’s sentence was
reduced from
44
years in prison to 40 years in prison.
Although we would not characterize the hearing as a typical sentencing
hearing and the court did not reimpose sentences on the other counts and
enhancements, the court did reduce Benavidez’s sentence. The court’s striking four years from
Benavidez’s sentence was a modification of his sentence and he was entitled to
additional actual custody credits. Thus, Buckhalter’s
holding requires we reverse the judgment to the extent the trial court failed
to recalculate Benavidez’s actual custody credits.
At resentencing,
Benavidez was entitled to be awarded 688 days of actual presentence credits
from the date of his first sentencing hearing, March 11, 2010, to the date of resentencing, January 27, 2012. Thus, the proper award of presentence credit
was a total of 1,349 days of credit, consisting of 1,263 days of actual
presentence credit
(688
days plus the previously-awarded 575 days of actual credit), and 86 days of
section 4019 presentence conduct credits.
DISPOSITION
The judgment is modified to reflect
presentence credit of 1,349 days, consisting of 1,263 days of actual
presentence custody credit and 86 days of section 4019 presentence conduct
credits. After issuance of the
remittitur, we direct the clerk of the
superior
court to prepare an amended abstract of judgment and forward it to the
division of Adult Operations. As
modified the judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
