SMITH, J.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF012584A. Stephanie Renee Childers Stewart, Judge.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
In 2017, appellant Juan Freddy Hatch, an inmate, entered a plea of no contest to possession of a weapon in a penal institution (Pen. Code, § 4502, subd. (a)). In addition, he admitted to having suffered three prior convictions under the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and having served one prior prison term (§ 667.5, subd. (b)) for the commission of an armed carjacking. The trial court struck two of Hatch's prior strikes and imposed a prison term of 11 years, consistent with the term negotiated by the parties. This sentence includes the upper term of four years, doubled to eight years for Hatch's remaining strike, plus one year for the prior prison term enhancement, and a consecutive two-year term arising from a conviction in an unrelated case.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
In 2016, Hatch was convicted of possession of a weapon in a penal institution (§ 4502, subd. (a)) in case No. DF012322B.
In 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136) amended section 667.5, restricting the application of prior prison term enhancements except where a prior conviction is for a sexually violent offense. (Stats 2019, ch. 590, § 1.)
Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) (SB 483) added former section 1171.1, now section 1172.75 to the Penal Code. (Stats. 2021, ch. 728.) Section 1172.75 made SB 136's changes to the law fully retroactive to "all persons currently serving a term of incarceration ... for these repealed sentence enhancements." (Stats. 2021, ch. 728, § 1) On this same date, Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) amended subdivision (b) of section 1170 to prohibit imposition of the upper term sentence except" 'when there are circumstances in aggravation of the crime that justify the imposition of an upper term sentence, and 'the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.'" (People v. Lynch (2024) 16 Cal.5th 730, 748.)
In 2023, the trial court recalled Hatch's sentence pursuant to section 1172.75. The court struck the prior prison term enhancement applied to Hatch's sentence and resentenced him to an aggregate prison term of 10 years.
Hatch raises multiple claims on appeal. First, he contends that the trial court erred by imposing the upper term without complying with subdivision (b) of section 1170's requirement that, absent a stipulation by the parties, aggravating factors be proven beyond a reasonable doubt. Second, Hatch argues that the trial court erred by striking the invalid section 667.5 enhancement applied to his sentence in lieu of conducting a full resentencing hearing. Finally, Hatch asserts that the trial court erred by failing to calculate credits for the actual days he spent in custody.
We agree that the trial court erred by failing to recalculate Hatch's custody credits. We will remand the matter back to the lower court for the court to calculate all actual days Hatch has spent in custody, and to update the abstract of judgment accordingly. We otherwise affirm.
STATEMENT OF FACTS
We have omitted the underlying facts of Hatch's commitment offense as they are not relevant to the issues he raises on appeal.
DISCUSSION
I. The Trial Court's Jurisdiction to Recall Hatch's Sentence
Preliminarily, the Attorney General argues that the trial court lacked jurisdiction to recall Hatch's sentence. According to the Attorney General, the resentencing proceeding was triggered by a standalone letter filed by Hatch.
If Hatch filed a motion, it was not made part of the record.
It is well-settled that neither a defendant nor someone acting upon the defendant's behalf can seek recall for resentencing under section 1172.75 by filing a standalone motion or petition. (See People v. Cota (2023) 97 Cal.App.5th 318, 332 ["section 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition"].) As relevant here, the resentencing procedure under section 1172.75 begins with corrections officials identifying inmates potentially eligible for resentencing. (See § 1172.75, subd. (b).)
Following the submission of respondent's appellate brief, Hatch augmented the record with documents showing that he was identified by the California Department of Corrections and Rehabilitation (CDCR) as an inmate potentially eligible for resentencing under section 1172.75. Because Hatch was identified on the CDCR's list, dated June 16, 2022, the trial court had jurisdiction to recall his sentence in 2023, even if it were initially prompted to act by a motion filed by Hatch seeking recall of his sentence. (See People v. Cota, supra, 97 Cal.App.5th at p. 332 [holding that CDCR's identification of the defendant as an individual potentially eligible for resentencing under section 1172.75 vests the court with jurisdiction to recall the defendant's sentence]; see also, People v. Coddington (2023) 96 Cal.App.5th 562, 567, fn. 4 [same].) Having concluded that the trial court had jurisdiction to recall Hatch's sentence, we now turn to Hatch's claim that the trial court erred by imposing the upper term sentence.
II. The Trial Court's Reimposition of the Upper Term
Hatch contends that the trial court erred by resentencing him to the upper term on his conviction without complying with subdivision (b)(2) of section 1170, which requires that aggravating factors be either found true beyond a reasonable doubt by a trier of fact or stipulated to by the defendant.
The Attorney General submits that Hatch has forfeited his claim by failing to raise it at the resentencing hearing below, that his claim lacks merit, and that any error is harmless. Because we find that Hatch's claim lacks merit, we do not address the Attorney General's assertion of forfeiture or harmless error.
A. Relevant Legal Principles
Subdivision (d)(4) of section 1172.75 provides the following:
"Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial."
In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon
Thompson), our colleagues in the Third Appellate District examined the plain language of subdivision (d)(4) of section 1172.75. The appellate court concluded that if the trial court had originally sentenced the defendant to the aggravated term and the court reimposes that term, the People are not required to prove aggravating factors beyond a reasonable doubt at a section 1172.75 resentencing hearing. (Brannon-Thompson, at pp. 466-467.) According to the appellate court, subdivision (d)(4) of section 1172.75 is "an exception to the general rule that the trial court must apply ameliorative changes in the law at a section 1172.75 resentencing." (Brannon-Thompson, at p. 467.)
However, in People v. Gonzalez (2024) 107 Cal.App.5th 312 (Gonzalez), the Sixth District Court of Appeal offered an alternative interpretation. The Gonzalez court concluded that subdivision (d)(4) of section 1172.75 must be interpreted as limiting the circumstances under which an eligible defendant may receive the upper term sentence, rather than as creating an exception to section 1170, subdivision (b)(2)'s requirement that aggravating factors must be proven beyond a reasonable doubt to a trier of fact. (Gonzalez, at p. 329.) Under this interpretation, "a defendant would be eligible for the upper term but could not receive it in the absence of aggravating factors stipulated to by the defendant or proven beyond a reasonable doubt to the trier of fact." (Ibid.)
The Gonzalez court explained that this interpretation would prevent subdivision (d)(4) of section 1172.75 from being construed in a manner that violates the Sixth Amendment. (Gonzalez, supra, 107 Cal.App.5th at p. 330.) Relying upon our Supreme Court's decision in People v. Lynch, the Gonzalez court explained that" '[t]he aggravating facts that would "justify" an upper term sentence [citation] are the same facts that "expose" the defendant to imposition of that sentence in the trial court's discretion. [Citation.] Stated another way, under the current statute the aggravating facts used to "justify" an upper term sentence are "necessary to [its] imposition," [citation], and effectively function like elements of a crime.'" (Gonzalez, at p. 330, citing People v. Lynch, supra, 16 Cal.5th at p. 760.) Accordingly, the defendant has a Sixth Amendment right to a jury trial on these aggravating facts. (Gonzalez, at p. 330.) Interpreting subdivision (d)(4) of section 1172.75 as an exception to section 1170's requirements for imposing an upper term sentence (see, e.g, Brannon-Thompson, supra, 104 Cal.App.5th at p. 458) would however permit the trial court to circumvent Sixth Amendment requirements. (Gonzalez, at pp. 329-330.)
The Gonzalez court further observed that subdivision (d)(2) of section 1172.75 "directs the resentencing court to 'apply any other changes in law that reduce sentences or provide judicial discretion so as to eliminate disparity of sentences and ... promote uniformity of sentencing.' It therefore would follow that 'changes in law' would include the current version of section 1170, subdivision (b)(2), which became effective January 1, 2022." (Gonzalez, supra, 107 Cal.App.5th at p. 329.)
B. Analysis
"' "Our fundamental task in construing" ... any legislative enactment, "is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." [Citation.] We begin as always with the statute's actual words, the "most reliable indicator" of legislative intent, "assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy." '" (People v. Adams (2018) 28 Cal.App.5th 170, 181, citing Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 837-838.)
Subdivision (d)(4) of section 1172.75 is clear and unambiguous. "[u]nless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1172.75, subd. (d)(4), italics added.) Here, the People were exempt from having to prove aggravating factors true beyond a reasonable doubt since the trial court had originally imposed the upper term sentence at Hatch's original sentencing hearing.
For the first time in his reply brief, Hatch acknowledges subdivision (d)(4) of section 1172.75's exemption, but claims that it is inconsistent with the United States Supreme Court's decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham), as well as our "Legislature's efforts to bring our sentencing laws into compliance with Sixth Amendment requirements."
In Apprendi, the United States Supreme Court held that any fact, other than the fact of a prior conviction, that increases the minimum or maximum penalty for a crime must either be admitted by the defendant, established by the defendant's guilty plea, or submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; accord, Cunningham, supra, 549 U.S. at p. 293 [sentencing judge cannot impose a term beyond the statutory maximum, i.e., in excess of the middle term, based upon facts neither admitted by the defendant nor proven to a jury beyond a reasonable doubt].)
Despite the arguable merits of Hatch's claim, we decline to resolve the question of whether subdivision (d)(4) of section 1172.75, violates the Sixth Amendment, at this juncture, for two reasons. First, by failing to raise this issue in his opening brief, Hatch has deprived the Attorney General of the opportunity to respond. Under the circumstances, we conclude that the waiver doctrine should apply. (See People v. Senior (1995) 33 Cal.App.4th 531, 537 [state and federal law "permits application of the waiver doctrine where.. .a criminal defendant raises an issue for the first time in a reply appellate brief"].)
Second, there is presently a split of authority as to whether SB 567 applies to a negotiated plea agreement with a stipulated sentence, such as the sentence imposed here. (Cf. People v. Todd (2023) 88 Cal.App.5th 373, 381-382, review granted Apr. 26, 2023, S279154 [concluding that the defendant was entitled to remand following the enactment of SB 567, despite the fact that his upper term sentence was stipulated] and People v. Fox (2023) 90 Cal.App.5th 826, 831 [same]; People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 [explaining that our Supreme Court's decision in People v. Stamps (2020) 9 Cal.5th 685 (Stamps) requires retroactive application of SB 567 to negotiated plea agreements with stipulated sentences], with People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057-1059, review granted Dec. 14, 2022, S277314 [defendant not entitled to remand; defendant's negotiated sentence did not implicate any exercise of sentencing discretion by the trial court]; People v. Sallee (2023) 88 Cal.App.5th 330, 333-334, review granted Apr. 26, 2023, S278690 [same].) The issue is imminently pending resolution by our Supreme Court.
Our Supreme Court granted review of the following issue in Mitchell:" 'Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court's discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements [i.e., plea agreements with a stipulated sentence]?'" (People v. Kelly (2022) 87 Cal.App.5th 1, 4, fn. 2, review granted Mar. 22, 2023, S278503.) If our Supreme Court ultimately concludes that SB 567 applies to stipulated plea agreements, we will reach the merits of Hatch's constitutional claim. (See Lyng v. Northwest Indian Cemetery Protective Assn. (1988) 485 U.S. 439, 445 ["A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them"].)
In the interim, we continue to follow our decision in People v. Sallee. There, we explained that when a trial court "impose[s] a stipulated sentence pursuant to a negotiated plea agreement," the court's discretion is "limited to approving or rejecting the bargain. The court [does] not exercise discretion to select between the lower, middle, or upper term based on any aggravating or mitigating circumstances." (People v. Sallee, supra, 88 Cal.App.5th at p. 338.) "Thus, section 1170, subdivision (b), which governs the court's exercise of discretion with regard to a sentencing triad, does not apply." (Ibid.)
Here, the trial court's discretion at Hatch's sentencing hearing was limited to determining whether to grant his Romero motion, and if so, whether to accept the parties' negotiated plea agreement. After the court struck two of his prior strikes, it was obligated to impose the sentence negotiated by the parties, which included the upper term on
Hatch's conviction. In fact, Hatch's plea agreement did not simply specify that the court would impose a prison term of 11 years on his convictions, it specified how he was to be sentenced on both of his cases:
"Plea as charged. Defense to file motion to strike 1994 Sacramento PC 212.5/PC 12022.5(a) &2001 Sacramento PC 261(A)(2)[.] If motion granted [defendant] to be sentenced to 9 years. [Defendant] to be resentenced on case DF012322B to midterm X 2-2 years total = 11 years on both cases consecutive to 00F09148. If Romero denied, defendant may withdrawal plea."
Notwithstanding, based upon Hatch's convictions and the applicable sentencing triad, the only way the trial court could have imposed the prison term negotiated by the parties would have been by imposing the upper term sentence. Under the circumstances, the court did not exercise its sentencing discretion in imposing the upper term at Hatch's original sentencing hearing or his resentencing hearing. We therefore reject Hatch's assertion that the trial court erred by failing to comply with section 1170, subdivision (b)(2)'s requirements pertaining to the imposition of an upper term sentence.
III. Hatch's Entitlement to Remand for Resentencing
Hatch further contends that the trial court erred by merely striking his now invalid section 667.5 enhancement, in lieu of conducting a full resentencing hearing. As discussed further below, we agree that a full resentencing hearing is required when a defendant is resentenced pursuant to section 1172.75. However, the record here demonstrates that the trial court did in fact conduct a full resentencing hearing. Hatch's assertions to the contrary are unpersuasive.
A. Legal Principles
" '" 'A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.' [Citation.] Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, directly or indirectly. [Citation.] Once the court has accepted the terms of the negotiated plea, '[it] lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.'" '" (People v. Prudholme (2023) 14 Cal.5th 961, 973; see Stamps, supra, 9 Cal.5th at p. 701.)"' "When a guilty [or no contest] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." '" (People v. Segura (2008) 44 Cal.4th 921, 930931.)
When the court approves a plea agreement, the court must impose the sentence the agreement specifies. (Stamps, supra, 9 Cal.5th 685, 701; see § 1192.5, subd. (b) [when a "plea is accepted by the prosecuting attorney in open court and is approved by the court, ... the court may not proceed as to the plea other than as specified in the plea"]; People v. Pixley (2022) 75 Cal.App.5th 1002, 1005 [" '[w]hen a defendant who enters into a plea also agrees to a stipulated sentence, upon accepting the plea, the trial court may not proceed as to the plea other than as specified in the plea' "]; People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047 [" 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain' "].)
Whether convicted by jury or plea, prisoners whose sentences include a now invalid section 667.5 prior prison term enhancement are entitled to resentencing relief. Section 1172.75 draws no distinction between these two groups. Moreover, prisoners eligible for resentencing under section 1172.75, are entitled to a full resentencing, and "not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402; People v. Saldana (2023) 97 Cal.App.5th 1270, 1276, review granted March 12, 2024, S283547 [same]) Indeed, section 1172.75, subdivision (d)(2) provides that the resentencing court "shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing."
Although the trial court may not unilaterally modify a plea agreement at a resentencing hearing (see Stamps, supra, 9 Cal.5th at p. 701), the defendant is entitled to the benefit of any applicable ameliorative changes in the law at the time of his or her resentencing. (See People v. Padilla (2022) 13 Cal.5th 152, 161-162 [a case is no longer final when the underlying sentence is vacated and a new sentence is imposed]; see also, Doe v. Harris (2013) 57 Cal.4th 64, 66 ["That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them"].) This is true even if other ameliorative changes in the law would not have independently applied because the defendant's judgment of conviction had reached finality. (See e.g., People v. Padilla, at pp. 158, 168 [finding that the petitioner was entitled to retroactive application of Proposition 57 after his sentence was vacated following a successful habeas writ].) Recall of a defendant's sentence vacates the earlier judgment, requiring the court to resentence the defendant as if he or she had not been previously sentenced. (See People v. Montes (2021) 70 Cal.App.5th 35, 47-48; see also People v. Arias (2020) 52 Cal.App.5th 213, 219.)
B. Analysis
Nothing within the record supports Hatch's assertion that the trial court merely struck the invalid prior prison term enhancement applied to his sentence in lieu of conducting a full resentencing hearing. Notwithstanding the fact that Hatch had entered into a plea agreement with a stipulated sentence, the reporter's transcript demonstrates that the court reconsidered its sentencing decision but found that reimposition of the upper term was warranted.
Although Hatch contends that the trial court failed to consider postconviction factors in mitigation or aggravation of his sentence, the record belies his assertion. Trial counsel observed that Hatch "has not been in anymore trouble" since he was originally sentenced. That is a postconviction factor. The court ultimately concluded however that imposition of a mitigated prison term was not appropriate. The court announced that it had intended to follow the probation officer's recommended sentence.
In his report, the probation officer cited the presence of the following aggravating factors: (1) "[t]he defendant's prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous"; (2) "[t]he defendant's prior performance on juvenile probation and state parole was unsatisfactory..."; and (3) "[t]he defendant has served a prison term and a prior commitment to the California Youth Authority." The probation officer's report further observed that the court must consider additional changes to the law at resentencing, including "Penal Code sections 654, 1385, 1170(b)(6) and 1170.1(d)(2)."
"Absent evidence to the contrary, we presume that the trial court knew and applied the governing law." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390.) As the record does not affirmatively demonstrate otherwise, we presume that the trial court here considered the application of all ameliorative changes to the law at Hatch's resentencing hearing but concluded that the presence of the aggravating factors cited in the probation officer's report warranted reimposing the upper term.
Insofar as Hatch contends that he was entitled to the application of other ameliorative laws enacted after his original sentencing hearing, he does not identify any subsequently enacted laws that the trial court failed to apply. On appeal, the appellant has the burden of affirmatively demonstrating prejudicial error. (Cal. Const., art. VI, § 13.) Based upon the foregoing, we conclude that Hatch is not entitled to remand for another resentencing hearing.
IV. The Trial Court's Failure to Calculate Hatch's Custody Credits
Hatch asserts that the trial court erred by failing to calculate the number of actual days that he has spent in custody and failing to award him credit for that time served. The Attorney General agrees that "[i]n the event of remand for further proceedings, ... appellant would be entitled to a recalculation of custody credits." We conclude that remand is necessary so that the trial court may recalculate Hatch's custody credits to reflect the actual time he served before his resentencing hearing.
When Hatch was originally sentenced in 2017 for his in-prison crimes, he had two operative abstracts of judgments against him: (1) the 2001 determinate abstract of judgment from Sacramento County from his outside offense (rape), which imposed a prison term of 21 years; and (2) the Kern County determinate abstract of judgment from his in-prison offenses, which represented an aggregate term of 11 years in state prison.
These sentences remained distinct and separate sentences, as opposed to a sentence consolidated into a single aggregate prison term under the general sentencing scheme set forth under section 1170.1, subdivision (a). (See People v. White (1988) 202 Cal.App.3d 862, 870 ["Viewed schematically, the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed 'on the outside' "]; see also, People v. Langston (2004) 33 Cal.4th 1237, 1242 ["new crimes committed while in prison are treated as separate offenses and begin a new aggregate term"].) Thus, Hatch was not awarded any custody credits at his 2017 sentencing hearing.
It is unclear precisely when Hatch completed his prison term for his outside offense. However, because his 2023 resentencing hearing occurred more than 21 years after he was committed to CDCR for his outside crime, at some point before the hearing, Hatch's custody became solely attributable to his in-prison crimes. (See People v. Buckhalter (2001) 26 Cal.4th 20, 30 ["Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct."].)
Based upon the available record, we agree with the parties that Hatch is entitled to custody credits which he was not awarded at his resentencing hearing. (See § 2900.1 ["[w]here 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"]; People v. Buckhalter, supra, 26 Cal.4th at p. 23 ["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 [in custody] and credit that time against the 'subsequent sentence' "]; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012, citing § 2900.5, subds. (a), (d) [court must determine such time and reflect it in the abstract ofjudgment]; People v. Dean (2024) 99 Cal.App.5th 391, 397 ["CDCR is [then] responsible for calculating a defendant's postsentence [conduct] credits"].)
Having concluded that Hatch is entitled to custody credits, we now turn to the question of how the trial court can accurately determine the precise amount of custody credits that Hatch has accrued. The record does not disclose when Hatch would have officially completed his prison term on his outside offense, or how many postsentence credits he may have earned since the sentencing hearing on his outside crime.
We suggest that, on remand, the trial court order the probation officer to contact CDCR to ascertain when Hatch completed his sentence on his outside offense. To the extent that this date can be determined, it will enable the court to calculate Hatch's custody credits on his in-prison offenses. Once the court receives this information, the parties should be given the opportunity to meet and confer with the trial court regarding Hatch's custody credits before modification of the abstract of judgment occurs.
If this information cannot be furnished to the court, we offer the following alternative: First, the trial court should aggregate the prison terms for Hatch's outside offense and his in-prison offenses into a single abstract of judgment. The aggregation of the prison terms would be for the sole purpose of calculating the credits to which Hatch is entitled. The prison terms would remain two separate, fully consecutive sentences in every legal sense.
Second, the court should identify the date that Hatch was originally sentenced for his outside offense. Third, calculate all credits Hatch has earned for his time in custody from his original sentencing date to his resentencing hearing, to include any presentence credits Hatch accrued prior to his original sentencing hearing. Following amendment of the abstract of judgment, CDCR would be responsible for calculating Hatch's postsentence credits. (See People v. Dean, supra, 99 Cal.App.5th at p. 397.)
We emphasize that the trial court is not constrained by our suggestion and that it may proceed in any manner it deems suitable. There may be practical considerations, not accounted for herein, that require the trial court to proceed differently.
DISPOSITION
The matter is remanded back to the lower court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
DETJEN, Acting P. J.
I concur with the lead opinion up to and including its conclusion that "[t]he record does not disclose when Hatch would have officially completed his prison term on his outside offense, or how many postsentence credits he may have earned since the sentencing hearing on his outside crime." (Lead opn., ante, at p. 15.) I would not offer the advice to the trial court listed thereafter. The prison terms for Juan Freddy Hatch's (Hatch) outside offense and his in-prison offenses should not be placed "into a single abstract of judgment." (Ibid.) Nor need the date of Hatch's original sentence for his outside offense be determined by the court. (Ibid.)
Hatch served a determinate term on his outside offense. The Department of Corrections and Rehabilitation determines postsentence conduct credits and release dates. (See Cal. Const., art. I, § 32; In re Tate (2006) 135 Cal.App.4th 756, 759.) The release date of Hatch's custody for his outside offense is known to the Department of Corrections and Rehabilitation. Since the trial court, therefore, has access to this information, it can determine the custody credits Hatch subsequently accrued without further direction from this court. Accordingly, I would simply remand the matter to the trial court for that determination.
Meehan, J., Concurring.
I concur in the lead opinion's disposition, but I respectfully do not join in the reasoning in part II. of the Discussion. Although the court's opinion in People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon-Thompson) did not elaborate, its holding rests on the premise that Penal Code section 1172.75, subdivision (d)(4), reflects the Legislature's intent to override the Estrada presumption by limiting the retroactive effect of the ameliorative changes to Penal Code section 1170, subdivision (b), for those defendants previously sentenced to an upper term and resentenced under Penal Code section 1172.75. (Brannon-Thompson, supra, at pp. 458, 466-467.) Although the law is continuing to develop on this issue, I agree with the result reached in Brannon-Thompson . On that basis, I would conclude the trial court did not err in reimposing the upper term.
People v. Estrada (1965) 63 Cal.2d 740.
I would not apply the forfeiture doctrine to defendant's claim that Penal Code section 1172.75, subdivision (d)(4), violates the Sixth Amendment. Neither counsel at the resentencing hearing, nor appellate counsel at the time the opening briefs were filed, had the benefit of the California Supreme Court's decision in People v. Lynch (2024) 16 Cal.5th 730, which clarified the Sixth Amendment's application to upper term sentences imposed under Penal Code section 1170 as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.). Moreover, both parties' opening briefs on appeal were filed before either Brannon-Thompson or People v. Gonzalez (2024) 107 Cal.App.5th 312 was issued. These opinions differed in their interpretation of Penal Code section 1172.75, subdivision (d)(4), and whether it implicates Sixth Amendment concerns. In these circumstances, I would reach defendant's claim.
I do not join in the lead opinion's remaining analysis in part II. of the Discussion, including its reliance on People v. Sallee (2023) 88 Cal.App.5th 330, review granted April 26, 2023, S278690.