Filed 9/25/18 P. v. Shields CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from judgment following defendant Remon Arthur Shields’s 1999 conviction at age 17 for special circumstance first degree murder committed by use of a firearm. Defendant seeks remand for resentencing on the basis of alleged miscalculations of his custody and conduct credits. Defendant also seeks remand in light of the electorate’s recent enactment of Proposition 57, the Public Safety and Rehabilitation Act of 2016, and subsequent statutory amendments, in order for the trial court to exercise its discretion to strike the consecutive term he received for the firearm enhancement. For reasons provided below, we reverse the judgment and remand to the trial court to: (1) exercise its discretion and decide whether to strike or dismiss the firearm enhancement in accordance with newly amended Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h); and (2) modify the abstract of judgment to award him two additional days of presentence conduct credits.[1] In all other regards, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1999, a jury convicted defendant and an accomplice (Castille) of first degree murder and found true allegations of robbery–murder special circumstances and firearm use. Defendant was subsequently sentenced to life in prison without the possibility of parole, plus a consecutive 10-year term for the firearm enhancement. This judgment was thereafter affirmed twice on appeal. (See People v. Castille (2003) 108 Cal.App.4th 469; People v. Castille (2005) 129 Cal.App.4th 863.)[2] However, the trial court subsequently granted defendant’s habeas corpus petition and reduced his sentence for the firearm enhancement from 10 to 4 years.

On January 16, 2015, defendant filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(2), seeking recall of his life-without-possibility-of-parole sentence on constitutionality grounds under Miller v. Alabama (2012) 567 U.S. 460. On January 20, 2015, defendant filed a petition for writ of habeas corpus in the California Supreme Court on the same ground. Our state’s high court responded with an order to show cause, issued June 10, 2015, why defendant should not be entitled to a hearing under People v. Gutierrez (2014) 58 Cal.4th 1354. The People conceded defendant was entitled to such a hearing and, on July 9, 2015, the trial court granted defendant’s habeas petition, vacated his sentence of life without possibility of parole, and remanded for resentencing.

On April 27, 2016, the trial court resentenced defendant to 25 years to life for the special circumstance murder, plus four years for the firearm enhancement. On the same date, the abstract of judgment was amended in accordance with the court’s resentencing order. This timely appeal followed.

DISCUSSION

Defendant raises three issues on appeal: (1) whether remand is necessary in light of the passage of Proposition 57, which has, among other things, enhanced the trial court’s authority to strike or dismiss an otherwise mandatory sentencing enhancement for firearm use; (2) whether the trial court miscalculated defendant’s presentence conduct credits by two days; and (3) whether the trial court miscalculated defendant’s conduct and custody credits for the time period between its order to vacate his life-without-possibility-of-parole sentence on July 9, 2015, and its resentencing order on April 27, 2016. The prosecutor concedes the first two issues and disputes the third. We address each issue to the extent appropriate below.

I. Discretion to Strike Defendant’s Firearm Enhancement (Proposition 57).

When defendant was initially convicted, the law required the trial court to impose a 10-year consecutive sentence after finding true the allegation that he personally used a firearm to commit the charged offenses. (Former § 12022.5.) However, on November 8, 2016, the electorate passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57).

On October 11, 2017, in accordance with a separate part of Proposition 57, the Governor then signed Senate Bill No. 620, ending the statutory prohibition on a court’s ability to strike or dismiss a firearm enhancement allegation or finding. Effective January 1, 2018, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) were thus amended to allow the trial court to exercise its discretion under section 1385 to strike or dismiss such an enhancement at the time of sentencing or resentencing. In this case, as mentioned, sentencing occurred before these amendments took effect. Thus, under the prior versions of the statutes, the trial court imposed a 10-year sentence for the firearm enhancement. Both parties now agree these statutory amendments were intended to apply retroactively to cases, like ours, where the defendant has been convicted but the judgment is not yet final pending appeal. We are in accord.

The law on this point is well established: “ ‘[W]hen a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.’ [Citation.] As the Supreme Court stated in [In re] Estrada [(1965) 63 Cal.2d 740], ‘When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.’ (In re Estrada, supra, 63 Cal.2d at p. 745.)” (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.)

As both parties recognize, “the amendment to subdivision (h) of Penal Code section 12022.53, which [took] effect before the judgment in this case [was] final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes this case.” (People v. Woods, supra, 19 Cal.App.5th at p. 1091.)

Having considered our record in light of these principles, we agree with the parties the trial court should, in the first instance, have the opportunity to exercise its newly afforded discretion to decide whether to strike or dismiss the firearm enhancement in this case. Accordingly, we reverse the judgment and remand this matter to the trial court to decide the fate of defendant’s firearm enhancement in accordance with the current version of sections 12022.5, subdivision (c) and 12022.53, subdivision (h).

II. Presentence Custody Credits.

The next issue—also conceded by the People—is whether the trial court miscalculated defendant’s presentence custody credits due to ambiguity in the record regarding his arrest date. Both parties agree defendant was arrested for the charged offenses on December 20, 1996. The trial court, however, mistakenly calculated defendant’s custody credits from December 26, 1996, rather than his arrest date of December 20, 1996, apparently based upon erroneous information in the probation report. Our review of the record confirms the error. Accordingly, on remand, we instruct the trial court to award defendant two additional days of custody credits (to wit, 1,064 days rather than 1,062 days) in accordance with his request.

III. Postconviction Custody and Conduct Credits.

The last issue, which is disputed, relates to the trial court’s calculation of defendant’s custody and conduct credits for the period of time between the trial court’s July 9, 2015 grant of his habeas corpus petition, whereby his sentence was vacated as unconstitutional and the matter remanded for resentencing, and the trial court’s April 27, 2016 resentencing order. In the resentencing order, the trial court ruled as follows: “In addition to the presentence credits awarded at the initial sentencing, this Court awards defendant’s actual post-conviction credits of 6,005 days pursuant to People vs. Buckhalter [(2001) 26 Cal.4th 20] and People versus Johnson [(2004) 32 Cal.4th 260],” as indicated on the record, for a total of 7,226 days of credit. “In all other respects the judgment remains the same.” According to defendant, this ruling is erroneous, because, once the trial court vacated his original sentence, he qualified for presentence credits rather than, as the court found, postconviction credits. The relevant law is as follows.

A presentence defendant is entitled to conduct and custody credits pursuant to section 4019 and section 2900.5, subdivision (a) unless limited to 15 percent of actual time pursuant to section 2933.1. (See People v. Philpot (2004) 122 Cal.App.4th 893, 908; § 2933.1, subd. (a) [“Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933”].) A defendant convicted of murder (like our defendant) is limited to 15 percent presentence custody credits. (§ 667.5, subd. (c)(1).)

However, if the defendant has been sentenced and imprisoned, even if the case is later remanded for resentencing, the law views the defendant as continuing to serve time in custody for purposes of earning conduct and custody credits. In such a case, section 2900.1 applies rather than section 2900.5. And “[s]ection 2900.1 . . . , in contrast with section 2900.5, . . . omits reference to presentence good behavior credits under section 4019. The implication is that once the 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 credits of the presentence kind.” (People v. Buckhalter, supra, 26 Cal.4th at p. 33.)

Here, the parties dispute whether the rules from above governing presentence credits or postconviction/imprisonment credits should apply. The trial court, relying on People v. Buckhalter, chose the latter. In People v. Buckhalter, the state’s highest court held: “When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the ‘subsequent sentence.’ (§ 2900.1.) On the other hand, a convicted felon once sentenced, committed, and delivered to prison is not restored to presentence status, for purposes of the sentence-credit statutes, by virtue of a limited appellate remand for correction of sentencing errors. Instead, he remains ‘imprisoned’ (§ 2901) in the custody of the Director [of Corrections] ‘until duly released according to law’ (ibid.), even while temporarily confined away from prison to permit his appearance in the remand proceedings. Thus, he cannot earn good behavior credits under the formula specifically applicable to persons detained in a local facility, or under equivalent circumstances elsewhere, ‘prior to the imposition of sentence’ for a felony. (§ 4019, subds. (a)(4), (b), (c), (e), (f); . . .) Instead, any credits beyond actual custody time may be earned, if at all, only under the so-called worktime system separately applicable to convicted felons serving their sentences in prison. (§§ 2930 et seq., 2933.)” (People v. Buckhalter, supra, 26 Cal.4th at p. 23, second italics added.)

We agree with the trial court the People v. Buckhalter holding governs our case. While defendant is technically correct the trial court “vacated” his sentence of life without possibility of parole, the court’s ruling further specifies his case was being “remanded for resentencing.” Thus, considered in proper context, defendant was placed in the same position as the defendant in People v. Buckhalter—to wit, “a convicted felon [who had been] sentenced, committed, and delivered to prison.” (People v. Buckhalter, supra, 26 Cal.4th at p. 23.) As such, “[defendant] [wa]s not restored to presentence status, for purposes of the sentence-credit statutes, by virtue of a limited appellate remand for correction of sentencing errors.” (Ibid.) Any other conclusion would elevate the form of the trial court’s ruling over its substance: “The statutory scheme, read as a whole, plainly contemplates that once sentenced, committed to prison, and delivered to the Director’s custody, a felon remains in that status, serving a term of imprisonment, until lawfully released, and earns credits against the sentence, if at all, only pursuant to the laws specifically applicable to persons serving terms in prison.” (Id. at p. 33.)

Accordingly, under the aforementioned Penal Code provisions, the trial court correctly awarded defendant a total of 7,226 days of credit for time served, including 7,067 credits for actual days served and 159 conduct credits.

DISPOSITION

The judgment is reversed and the matter remanded to the trial court with instructions to: (1) exercise its discretion to decide whether to strike or dismiss the firearm enhancement in accordance with newly amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h); and (2) recalculate defendant’s presentence custody credits to award him two additional days, for a total of 1,064 days. In all other regards, the judgment is affirmed.

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Jenkins, J.

We concur:

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Pollak, Acting P. J.

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Ross, J.*

A148687/People v. Remon Arthur Shields