People v. Robertson CA3

Filed 8/26/24 P. v. Robertson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C099696

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 1994-0006552, SC057168A) v.

SHAWN LEROY ROBERTSON,

Defendant and Appellant.

The trial court resentenced defendant Shawn Leroy Robertson pursuant to Penal 1 Code section 1172.75, striking two 1-year enhancements imposed under former section 667.5, subdivision (b). On appeal, Robertson contends, and the People agree, that the trial court failed to update the abstract of judgment to include the actual time Robertson spent in custody between the initial sentencing and the resentencing. We agree with the parties and will remand for the trial court to calculate the number of days Robertson spent in custody and to prepare an updated abstract of judgment.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In 1994, the People charged Robertson with two counts of attempted murder and one count of possessing a firearm having been convicted of a felony. The People alleged Robertson had served two prior prison terms. A jury found Robertson guilty of all three offenses. The parties then waived jury and held a court trial to determine the truth of the enhancement allegations involving Robertson’s criminal record. The trial court found true the allegations that Robertson had previously served two prior prison terms. The trial court sentenced Robertson to a determinate term of 14 years in state prison, plus an indeterminate term of life in prison. The 14-year term included a one-year enhancement pursuant to former section 667.5, subdivision (b) for one of Robertson’s prior prison terms. The court also imposed the one-year enhancement for the other prior prison term to be served concurrently with the rest of the sentence. In 2023, the trial court resentenced Robertson pursuant to section 1172.75. The court noted that the parties agreed the enhancements based on Robertson’s two prior prison terms should be stricken. Robertson also asked the court to strike additional enhancements and further reduce his determinate sentence. The People opposed any further modification to Robertson’s sentence. The trial court struck the one-year enhancements imposed under former section 667.5, subdivision (b). The court otherwise declined to modify Robertson’s sentence, resulting in a new determinate term of 13 years in state prison, plus an indeterminate term of life in prison. The court ordered its clerk to prepare an amended abstract of judgment, but did not calculate the amount of time Robertson had served in custody. The amended abstract of judgment failed to indicate the date of the resentencing hearing at the top of the form and in section No. 15, failed to indicate in section No. 14 that the court had resentenced Robertson pursuant to section 1172.75, and failed to include all of Robertson’s actual time in custody in section No. 15.