P. v. Mills
Filed 4/5/07 P. v. Mills 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE, Plaintiff and Respondent, v. DWAYNE JOHN MILLS, Defendant and Appellant. | C053513 (Super. Ct. No. CM023477) |
The sole issue raised in this appeal is whether the trial court erred by refusing to give defendant Dwayne John Mills credit for time actually served in state prison when the trial court consolidated his sentences on two separate cases from two different counties. At the sentencing hearing, the prosecutor acknowledged that defendant had not been credited with 51 days he spent in state prison and urged the court not to include the credit in the abstract of judgment because all that will be calculated by the Department of Corrections. We agree with defendant that the trial court erred.
SENTENCING FACTS
In Butte County on January 25, 2006, defendant was sentenced to 3 years formal felony probation for possession of hydromorphone (Health & Saf. Code, 11350, subd. (a)), and ordered to serve 180 days in the county jail and to perform 250 hours of community service. On March 27, 2006, he was transported to Colusa County to face charges of vehicle theft (Veh. Code, 10851, subd. (a)) and receiving stolen property (Pen. Code, 496, subd. (a)).[1] On June 19, 2006, he was sentenced in Colusa County and then transported to state prison. He thereafter requested revocation of his probation in Butte County.
A new sentencing hearing was scheduled for August 9, 2006, for the purpose of resentencing in both matters. At that hearing, defendant was sentenced to two years for the drug offense in Butte County and a consecutive eight months for the vehicle theft offense in Colusa County. His probation was revoked and the two-year term for receiving stolen property was stayed. The court gave him various presentence custody credits for both cases but refused to give him credit for the 51 days he spent in state prison. Defense counsel objected. The court accepted the prosecutors recommendation not to include in the abstract of judgment the credits for the actual time defendant served in state prison because, according to the prosecutor, those credits would be included in the Department of Correctionss calculations.
DISCUSSION
Defendant asserts the trial court had the obligation to apply the proper credits for the actual time he served in custody attributable to the crimes for which he was ultimately sentenced. He relies on section 2900.1, which 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.
In People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the Supreme Court held that when 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. (Buckhalter, at p. 23.) Defendant urges us to analogize his consolidated resentencing to the appellate remand in Buckhalter.
The Attorney General argues that the judgment in defendants case was never declared invalid or modified within the meaning of section 2900.1. On the contrary, appellant never left state prison after being sentenced in Colusa County, and simply had his probation terminated and a state prison term imposed in the instant case. In the Attorney Generals view, therefore, the trial court was not obligated to award additional credits. We disagree.
It may be, as the Attorney General contends, that the express terms of section 2900.1 do not apply. Here, unlike in Buckhalter, the judgment was not declared invalid and there was no appellate remand. But the Attorney General relies on that part of the Buckhalter analysis wherein the court rejected the notion that the trial court was obligated to award conduct credits pursuant to section 4019 when the prisoner had never been removed from the custody of the Department of Corrections. (Buckhalter, supra, 26 Cal.4th at p. 36.) Conduct credits are simply not at issue in this case; defendant seeks credit for actual time served in state prison, not for additional conduct credits that would result from a return to presentence status. As a result, the Attorney Generals reliance on an isolated part of Buckhalter is misplaced.
While defendants resentencing may not fit within the fact pattern envisioned by section 2900.1, it does fit within the rationale expressed in Buckhalter and the policy fostered by both sections 2900.1 and 2900.5. Section 2900.5, subdivision (d) states: It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213. Section 2900.5, like section 2900.1, imposes on the trial court the obligation to give credit for actual time the defendant spends in custody. While section 2900.5 applies to the time spent before a sentence is imposed and section 2900.1 applies to the time spent in custody before the sentence is declared invalid and the case is remanded to the trial court, both sections assure a defendant credit for the time actually served before a new sentence is imposed.
Here too the trial court imposed a new, recalculated sentence, albeit not for the first time and not as a result of an appellate remand. But no one disputes that defendant spent 51 days in state prison attributable to the same offenses. The recalculation of his sentence did not return him to presentence status, but presentence status is not a prerequisite to credit for actual time served. Thus, under the same rationale, defendant was entitled to credit for his 51 days. The prosecutor at trial cited no authority for her proposition that the Department of Corrections was charged with the obligation to apply the proper credits for actual time served. Rather, by analogy to section 2900.5, the court had the duty to apply the 51 days credit in the abstract of judgment.
DISPOSITION
The judgment is reversed and remanded to the trial court to prepare an amended abstract of judgment giving defendant credit for the actual time he spent in state prison. The trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
RAYE , Acting P.J.
We concur:
HULL, J.
ROBIE , J.
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[1] All further statutory references are to the Penal Code.
