California Court of Appeal Apr 10, 2025 No. E081255Unpublished
Filed 4/10/25 P. v. Ureno CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E081255
v. (Super.Ct.No. FVI1301077)
JOSE URENO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Affirmed with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Jose Ureno was convicted of carjacking and taking or
driving a motor vehicle in 2015. It was found true that he committed the offenses for the
benefit of a criminal street gang and that he suffered several prior convictions including
having served a prior prison term pursuant to Penal Code section 667.5, subdivision (b).1
In a previous appeal, People v. Ureno (August 2, 2015, E060160) [nonpub. opn.]
(Opinion), we affirmed the convictions and ordered a correction to his sentence. In 2023,
defendant was identified by the Secretary of the California Department of Corrections
and Rehabilitation (CDCR) as a defendant serving time in prison who may be eligible for
recall and resentencing relief under section 1172.75. After briefing by the parties and a
hearing the trial court struck the section 667.5, subdivision (b), prior but denied any
further relief.
Defendant appeals the order of the trial court claiming that it abused its discretion
by denying him a full resentencing as required by section 1172.75. Specifically, he
claims he was entitled to have the trial court impose the middle term on his convictions
based on Senate Bill No. 567, which modified section 1170, subdivision (b)(1), after his
original sentencing. In addition, he claims that the trial court failed to update and
recalculate his actual custody credits and that the amended abstracts of judgment for the
indeterminate and determinate sentences need to be corrected.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
FACTUAL AND PROCEDURAL HISTORY2
On June 27, 2013, a jury found defendant guilty of carjacking (§ 215, subd. (a);
count 1) and taking or driving a motor vehicle (§ 10851, subd. (a); count 2). In addition,
the jury found defendant committed the offenses for the benefit of a criminal street gang
(§ 186.22, subds. (b)(1)(a) & (b)(1)(c)). Defendant also admitted to having suffered one
prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction within
the meaning of section 667, subdivisions (b) through (i), and 1170.12, subdivisions (a)
through (d). The trial court found the allegation true that defendant had served one prior
prison term within the meaning of section 667.5, subdivision (b). Defendant was
sentenced to 30 years to life for the carjacking, plus a five-year consecutive term for the
prior serious felony conviction, and one year for the prior prison term. He was also
sentenced to a concurrent term of six years for the taking or driving of a motor vehicle
conviction and four years for the section 186.22, subdivision (b)(1)(a) gang enhancement.
Defendant appealed and a panel of this court modified the six-year sentence on the
taking or driving of a motor vehicle and the four-year sentence on the gang enhancement,
and ordered that the sentences be stayed pursuant to section 654. New abstracts of
judgment were ordered to be filed. His custody credits were calculated as 223 total
credits, which consisted of 194 actual days and 29 days of conduct credits pursuant to
section 4019.
2 We derive the history from the clerk’s and reporter’s transcripts in this case and from our Opinion. We need not provide the facts of the underlying crime as they are not relevant to the issues on appeal.
3
On September 30, 2022, defendant filed in pro. per. a “Request for Resentencing
omitted.) He obtained counsel and his counsel filed an “Amended Petition for
Resentencing and/or Reversal of His Convictions” (All caps. and boldface omitted)
pursuant to section 1172.75 (Amended Petition). Defendant argued that his section
667.5, subdivision (b), prison prior must be stricken pursuant to section 1172.75,
subdivision (a). Further, pursuant to section 1172.75, subdivision (d)(2), he was entitled
to have the trial court resentence him and apply any other changes in the law. This
included exercising its discretion to dismiss the section 667, subdivision (a),
enhancement that was previously mandatorily imposed but now the trial court possessed
discretion to dismiss the enhancement. The trial court also could dismiss the
enhancement pursuant to section 1385. In addition, the gang enhancement must be
dismissed pursuant to section 1385 and Assembly Bill No. 333. Moreover, the trial court
should strike his serious and/or violent felony conviction enhancement pursuant to
section 1385 and Senate Bill No. 81. The trial court should also strike any fines and fees
based on the prosecution failing to prove his ability to pay.
Attached to the Amended Petition were two letters. A letter from defendant’s
brother stated that defendant started having troubles when he was using drugs. Defendant
had a big heart and deserved a second chance. He would offer defendant a job and
housing if he was released from prison. Defendant’s older sister also submitted a letter
stating he was a good brother and uncle to her sons. She begged the court to give him a
second opportunity to return to his family.
4
The hearing on the Amended Petition was continued. Defendant submitted
additional letters to the trial court in support of the Amended Petition. The daughter of
defendant’s fiancée declared that defendant was like a father to her and she wanted him
home. His niece also provided a letter that defendant was like a father figure to her. She
wanted defendant to be given another chance and for him to come home. Defendant’s
fiancée submitted a letter that defendant had learned from his experience and would not
repeat his crimes. Defendant was a family man and had a support team. Defendant’s
sister-in-law had known defendant for 22 years. He deserved a second chance and to
come home. His fiancée’s son submitted a letter that defendant was a father figure and
that he had learned his lesson. A friend of 20 years stated that defendant always had
goals and wanted to do something with his life. He deserved another chance.
The matter was again continued. Defendant filed additional letters of support to
the Amended Petition. Defendant’s older sister provided that he had been a polite and
respectful man while they were growing up. She wanted him to come home and be with
her children. She asked that the trial court be lenient with defendant. The matter was
again continued.
The People filed opposition to the Amended Petition. The People contended that
defendant could not request relief pursuant to section 1172.75 based on the restrictions
set forth in the statute; he must be identified as eligible for resentencing by the CDCR.
He was not entitled to section 1172.75 relief.
5
Defendant submitted a response and supplemental reply to the opposition to the
Amended Petition. Defendant contended that he in fact had been recommended for
resentencing by the CDCR. His name was included on a list that was provided to the trial
courts on June 30, 2022, as potentially being eligible for resentencing. The list including
defendant’s name was included as an exhibit. Defendant was entitled to a full
resentencing.
Defendant also filed supplemental briefing in support of the Amended Petition.
He argued the trial court should strike his prior conviction pursuant to People v. Superior
Court (Romero) 13 Cal.4th 497 (Romero). He insisted that despite another court finding
that the changes to section 1385 did not apply to prior strike convictions, the case was
wrongly decided. Even if the trial court determined that section 1385 did not apply, it
should still strike defendant’s prior conviction, which was based on a 2002 conviction for
robbery. Defendant insisted that section 1172.75 required a full resentencing not merely
striking the section 667.5, subdivision (b), enhancement. Relying on section 1172.75,
subdivision (d)(3), defendant provided that the trial court should consider postconviction
factors, including record of discipline, rehabilitation efforts, and whether age or time
served had reduced the defendant’s risk for future violence in deciding whether to strike
the prior conviction. The trial court should consider that the Legislature mandated full
resentencing in order to ensure equal justice and to address systematic racial bias in
sentencing.
6
In addition, defendant contended that he was only 18 years old when he committed
the prior robbery offense, and more than 20 years had passed since he committed that
offense. There was a 10-year gap between the prior offense and the current offenses.
Further, the carjacking was a strike but was less serious than some other strike offenses.
Defendant did not use force or violence when committing the carjacking. The letters
submitted to the trial court showed he was loved and supported by his family. Defendant
had matured in the prior 10 years and was ready to be a productive member of society.
The matter was again continued.
The People filed a response to defendant’s supplemental briefing. There were no
mitigating factors listed in section 1385 that applied to defendant, and dismissal of the
enhancement would endanger public safety within the meaning of section 1385,
subdivision (c)(2). Additionally, section 1385 did not apply to prior convictions, and
even if section 1385 applied to defendant, the fact that the prior conviction was over 20
years old and there were multiple enhancements did not mandatorily require its
application to defendant. The People also noted that no records of defendant’s conduct
during his incarceration had been submitted to the trial court to support that the prior
conviction should be struck by the trial court based on his change of behavior and
prospects. Finally, under Romero, the striking of the prior conviction was not in the
furtherance of justice.
Defendant filed a reply to the opposition. Defendant argued that the prior
conviction was mandatorily dismissed pursuant to section 1385, subdivisions (c)(2)(B)
and (c)(2)(C). The People presented no evidence that defendant was still a threat to
7
society after 16 years. The prior strike should be dismissed pursuant to section 1385 or
Romero.
The matter was heard on May 5, 2023. The trial court stated it had reviewed the
Amended Petition, the oppositions filed by the People and defendant’s reply to the
opposition. Defendant’s counsel relied on the briefing but added that the trial court now
had discretion to impose sentence on count 2 and stay count 1 under new law. Further,
for the first time, counsel argued that the sentences on counts 1 and 2 should be middle
terms as there were no proven aggravating factors. The People argued that if the trial
court found that defendant properly filed the Amended Petition, there was no change in
circumstances that warranted resentencing. There was no evidence of his disciplinary or
rehabilitation record while in prison. The trial court should not strike the prior
conviction.
The trial court accepted the Amended Petition apparently agreeing with defendant
that he was entitled to file it. The trial court then addressed its discretion pursuant to
section 1385 to dismiss the prior strike convictions. The trial court noted that the prior
conviction was for robbery and the current conviction was for carjacking. Defendant had
a history of parole violations. The trial court noted, “He has not exhibited behavior that
shows he is not a public safety risk; rather his increase in violence as he got older shows
this court that he is a serious risk of public safety.” The trial court also noted that
between the robbery conviction in 2001 and the carjacking in 2013, defendant had
numerous convictions and parole violations. Defendant had a history of committing
violent crimes. The trial court also noted that defendant was 40 years old and that his
8
criminal history “is not yet behind him.” There were no relevant facts or circumstances
provided to the trial court that showed he had changed his criminal lifestyle.
The trial court concluded, “[T]he defendant does not fit outside of the spirit of the
three strikes law. And for that reason, the motion to strike his prior is denied, and the
Court also denies the defendant’s motion for re-sentencing under Penal Code Section
1172.75, and for those reasons, the Court also finds he is ineligible for re-sentencing on
the gang enhancement that is found true.” Defendant’s counsel inquired, “I’m a little bit
unclear as to the basis for the denial of even striking the 667.5B enhancement.” The trial
court then clarified that the only thing it was going to do was strike the section 667.5,
subdivision (b) one year enhancement. Other than striking the one-year enhancement, the
sentence remained the same.
New abstracts of judgment were filed on May 10, 2023, which reflected the
striking of the section 667.5, subdivision (b), prior but incorrectly reflected the sentences,
as will be discussed, post. The new abstracts of judgment reflected the custody credit as
223 days which was 194 actual days and 29 days of local conduct credit under section
4019. Defendant filed his notice of appeal on May 5, 2023.
DISCUSSION
Defendant contends the trial court erred in choosing to strike the section 667.5,
subdivision (b), enhancement but then denying him a full resentencing as required by
section 1172.75. He focuses his argument on the claim that the trial court erred by failing
to apply the change to section 1170, subdivision (b)(1), which provides that the middle
term of a sentencing triad is the presumptive term. Instead, the trial court reimposed the
9
same upper-term sentences on counts 1 and 2. Defendant also contends the trial court
erred by failing to update and recalculate his actual custody credits, and the abstracts of
judgment for the indeterminate and determinate sentences are incorrect.
A. DENIAL OF RESENTENCING
Section 1172.75, subdivision (a), states that “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for
any enhancement imposed for a prior conviction for a sexually violent offense . . . is
legally invalid.” Section 1172.75, subdivision (b), requires the Secretary of the CDCR to
identify all inmates “currently serving a term for a judgment that includes an
enhancement described in subdivision (a). “Upon receiving th[is] information” from the
CDCR, “the sentencing court that imposed the enhancement” then “shall review the
judgment and verify that the current judgment includes a sentencing enhancement
described in subdivision (a).” (§ 1172.75, subd. (c).) “If the court determines that the
current judgment includes an enhancement described in subdivision (a), . . . the court
shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)
Subdivision (d)(2) of section 1172.75 provides, “The 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.”
Section 1172.75, subdivision (d)(1) provides that resentencing undertaken
“pursuant to this section shall result in a lesser sentence than the one originally imposed
as a result of the elimination of the repealed enhancement, unless the court finds by clear
10
and convincing evidence that imposing a lesser sentence would endanger public safety.”
In addition, subdivision (d)(3) of section 1172.75 provides that the trial court “may
consider postconviction factors, including, but not limited to, the disciplinary record and
record of rehabilitation of the defendant while incarcerated, evidence that reflects
whether age, time served, and diminished physical condition, if any, have reduced the
defendant's risk for future violence, and evidence that reflects that circumstances have
changed since the original sentencing so that continued incarceration is no longer in the
interest of justice.” Additionally, section 1172.75, subdivision (d)(4), provides, “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.”
Defendant contends on appeal that the trial court, by reaffirming the upper terms
imposed on counts 1 and 2 and denying a full resentencing, abused its discretion because
it failed to consider, discuss or apply the ameliorative changes to section 1170,
subdivision (b). Defendant insists that the trial court should have resentenced him to the
middle term based on the language in section 1170, subdivisions (b)(1) and (b)(2), which
after the passage of Senate Bill No. 5673 provides that the middle term of a sentencing
3 Stats 2021, c. 731 (S.B. 567), § 1.3, eff. Jan. 1, 2022. Section 1170 was amended effective January 1, 2024, but it did not modify subdivisions (b)(1) or (b)(2). (Stats. 2023, c. 560 (A.B. 1104) § 2.5, eff. Jan. 1, 2024.)
11
triad is the presumptive term, and the upper term cannot be imposed unless there are
circumstances in aggravation that justify exceeding the middle term. These aggravated
factors must have been stipulated to by the defendant or found true beyond a reasonable
doubt at trial by the jury or by the judge at a court trial.
Defendant also appears to contend the trial court erred by generally failing to
apply new sentencing laws. Defendant simply states that the trial court abused its
discretion by denying a full resentencing hearing because it should have applied all the
applicable sentencing statutes. He provides no further legal authority or argument on
how the trial court erred in denying the resentencing other than by failing to consider
section 1170, subdivisions (b)(1) and (b)(2). Defendant makes no argument supported by
legal authority that the trial court abused its discretion by refusing to strike the prior
convictions or address the gang enhancements. We need not make such arguments for
defendant and find these claims are forfeited on appeal. (People v. Stanley (1995) 10
Cal.4th 764, 793 [“[E]very brief should contain a legal argument with citation of
authorities on the points made. If none is furnished on a particular point, the court may
treat it as waived, and pass it without consideration”) The only issue properly before this
court is whether the trial court abused its discretion by denying resentencing on counts 1
and 2 based on the changes to section 1170, subdivisions (b)(1) and (b)(2).
The People, relying on section 1172.75, subdivision (d)(4), argue that the trial
court did not abuse its discretion in denying resentencing because it could impose the
same sentence on counts 1 and 2 as it did at the original sentencing in 2013. The upper
terms were authorized by the plain language of section 1172.75, subdivision (d)(4), which
12
is an exception to the section 1170 requirement that aggravating factors be found true by
a jury beyond a reasonable doubt.
There is a split of authority as to whether section 1172.75, subdivision (d)(4),
authorizes the imposition of the upper term without a jury finding on the aggravated
circumstances. In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon),
the appellate court examined the plain language of section 1172.75, subdivision (d)(4),
and 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, at pp. 466-467.) The appellate court concluded that section 1172.75,
subdivision (d)(4), 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, at p. 467.)
In People v. Gonzalez (2024) 107 Cal.App.5th 312, the defendant argued on
appeal that the trial court “failed to properly apply section 1170, subdivision (b)(2),
because the aggravating factors identified in support of the upper term were not proven
beyond a reasonable doubt by a jury or court, or previously stipulated. In so arguing, he
claims that this court must ‘reconcile’ section 1170, subdivision (b)(2) with section
1172.75, subdivision (d)(4), which might be interpreted to not require the court to
identify aggravating factors if the defendant was previously sentenced to the upper term.
Gonzalez specifically argues that because section 1170, subdivision (b)(2) triggers a
constitutional right to findings of fact regarding aggravating factors, the same standard
should equally apply to section 1172.75, subdivision (d)(4).” (Id. at p. 327.) The People
13
in response relied on the plain language of section 1172.75, subdivision (d)(4), and
argued, “that under the plain language of the statute, an admission or jury finding on
circumstances in aggravation is only required if the resentencing court newly imposes an
upper term, not if an upper term sentence was previously imposed. . . . this language [is]
an ‘exception’ to the requirement under section 1170, subdivision (b), that any
aggravating circumstances be proven beyond a reasonable doubt or stipulated to by the
defendant.” (Gonzalez, at p. 328.) The appellate court stated the plain language of
section 1172.75, subdivision (d)(4), could reasonably be interpreted to “simply restrict
the scope of defendants eligible to receive the upper term at resentencing to those who
previously received the upper term, instead of creating a condition or exception
independently justifying the imposition of the upper term. Under such an 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.” (Gonzalez, at p. 329, italics. omitted.) The appellate court concluded,
“the statutory interpretation for section 1172.75, subdivision (d)(4), which simply
restricts the scope of defendants eligible to receive the upper term, allows us to read the
statute in a manner that is internally consistent and avoids running afoul of the Sixth
Amendment. Under such an 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.” (Id. at p. 330, italics
omitted.)
14
We need not resolve this conflict based on (1) defendant being sentenced on the
carjacking to a mandatory 15-years-to-life sentence, which did not involve the trial
court’s discretion to impose the upper term; and (2) defendant has waived any claims as
to the trial court’s exercise of its discretion to deny resentencing as to count 2.
As to count 1, the carjacking, defendant was originally sentenced in 2013. At that
time, the trial court stated that it was imposing a 15-years-to-life sentence based on the
section 186.22, subdivision (b)(1)(c), enhancement. Carjacking has a triad of
imprisonment of three, five or nine years. (§ 215, subd. (b).) Section 186.22, subdivision
(b)(1), provides “Except as provided in paragraphs (4) and (5), a person who is convicted
of a felony committed for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist in criminal
conduct by gang members, shall, upon conviction of that felony, in addition and
consecutive to the punishment prescribed for the felony or attempted felony of which the
person has been convicted, be punished as follows: [¶] (C) If the felony is a violent
felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an
additional term of 10 years.” However, section 186.22, subdivision (b)(4)4 provides, “A
person who is convicted of a felony enumerated in this paragraph committed for the
benefit of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in criminal conduct by gang members, shall,
upon conviction of that felony, be sentenced to an indeterminate term of life
4 In 2013, the wording of section 186.22, subdivision (b)(1)(c) and (b)(4)(B) were the same. (Stats. 2011, c. 39 (A.B. 117) § 7, eff. June 30, 2011, operative Jan. 1, 2012.)
15
imprisonment with a minimum term of the indeterminate sentence calculated as the
greater of: [¶] . . . [¶] (B) Imprisonment in the state prison for 15 years, if the felony is a
home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision
(a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section
246; or a violation of Section 12022.55.”5
The trial court imposed the mandatory sentence of 15 years to life for the
carjacking and the gang enhancement. “Section 186.22, subdivision (b)(4), not
subdivision (b)(1)(C), is applicable if the felony committed to benefit a criminal street
gang is ‘a home invasion robbery [or] carjacking . . . .’ [Citation.] Rather than a
determinate term enhancement, section 186.22, subdivision (b)(4), provides for an
indeterminate life term as a mandatory alternate penalty ‘with a minimum term of the
indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . .
pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] [¶]
(B) [i]mprisonment in the state prison for 15 years.” (People v. Sok (2010) 181
Cal.App.4th 88, 96, italics added.) The trial court did not in its discretion impose the
upper term on the carjacking count but rather the mandatory alternative sentence of 15
years to life as required by section 186.22, subdivision (b)(4)(B). As such, section 1170,
5 The People contend that defendant was sentenced to the middle term of five years for the carjacking plus 10 years for the section 186.22, subdivision (b)(1)(C) enhancement. However, this sentence would not be a life term sentence and section 186.22 clearly provides that carjacking is sentenced pursuant to section 186.22, subdivision (b)(4)(B).
16
subdivision (b), did not provide authority for resentencing defendant to the middle term
on count 1, the carjacking.
On count 2, the trial court did impose the upper term of three years on the taking
or driving a motor vehicle, doubled for the prior strike conviction. Defendant has
forfeited his claim on appeal that the trial court abused its discretion by failing to
resentence him on count 2 to the middle term.
In the lower court, despite submitting numerous briefs to the trial court, defendant
never provided an argument to the trial court as to the imposition of the middle term on
count 2. For the first time, at the hearing, defendant stated an additional argument to the
trial court: “And then lastly, we also believe that [defendant] should be receiving the
midterm sentence on each of the counts. The only aggravating factors that the Court can
use are those that were proven beyond all reasonable doubt by the jury. That was not
done in this case. The one exception is the prior conviction, which the Court can make its
own findings on and which has already been admitted and that could be used.”
Defendant’s counsel argued that the prior conviction did not support the upper term as it
was 20 years old, and defendant was only 18 years old at the time he committed the prior
conviction. “So we do not believe that is an aggravating factor supporting the upward
term sentences, and we believe that the midterms are appropriate.”
17
Section 1170, subd. (b)(3), provides that “the court may consider the defendant’s
prior convictions in determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” In People v. Wiley (2023) 97
Cal.App.5th 676, review granted March 12, 2024, S283326,6 the appellate court found
that the trial court could consider a certified copy of the prior conviction both for the
“fact of a prior conviction and ‘other related issues’ ” including aggravating factors such
as increasing seriousness of convictions or poor performance on probation. (Id. at pp.
685-687}
Defendant seemingly conceded in the trial court that the trial court had the record
of the prior conviction before it and simply argued that the prior conviction should not be
used as an aggravating factor based on the age of the conviction and that he was young
when it was committed. The trial court was aware, based on defendant’s argument made
in court, that it was defendant’s position that the upper term was not appropriate because
the middle term was the presumptive term. Defendant on appeal fails to argue that the
trial court abused its discretion by relying on the prior conviction or that there was a lack
of evidence of the aggravating factor based on no certified copy being provided to the
trial court. Defendant also fails to address section 1170, subdivision (b)(3). Defendant’s
argument that the trial court did not “consider or apply” section 1170 is belied by the
record as it is presumed that the trial court considered defendant’s arguments in denying
the section 1172.75 petition. (People v. Myers (1999) 69 Cal.App.4th 305, 310 [“The
6 The California Supreme Court in granting review ordered that the court of appeal opinion could be cited for persuasive value.
18
court is presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary”].) Defendant’s failure to provide any further argument
that the trial court abused its discretion or that the record lacks evidence of the prior
conviction or other aggravating factors, forfeits the claim on appeal. (People v. Stanley,
supra, 10 Cal.4th at p. 793.) As such, we affirm the trial court’s denial of the petition for
resentencing finding that defendant has forfeited any argument that the trial court abused
its discretion by refusing to resentence him on count 2.
B. CUSTODY CREDITS AND ABSTRACT OF JUDGMENT
Defendant contends the trial court erred by failing to update or recalculate his
actual custody credits at the time it struck the section 667.5, subdivision (b), enhancement
and that he is entitled to a calculation of the credits since the original judgment and
sentencing on October 23, 2013. The abstracts of judgment incorrectly provide the
original actual custody credits awarded in 2013 of 194 days. The People concede the
error and agree that the matter should be remanded to the trial court for it to calculate the
actual days defendant spent in custody and to prepare updated abstracts of judgment.
When a prison term “already in progress is modified as the result of an appellate
sentence remand, the sentencing court must recalculate and credit against the modified
sentence all actual time the defendant has already served, whether in jail or prison, and
whether before or since he was originally committed and delivered to prison custody.”
(People v. Buckhalter (2001) 26 Cal.4th 20, 29; see also § 2900.1 [“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
19
imprisonment, such time shall be credited upon any subsequent sentence he may receive
upon a new commitment for the same criminal act or acts”].) Here, the trial court
reduced defendant’s sentence by one year when it struck the section 667.5, subdivision
(b), enhancement. It did not recalculate defendant’s actual custody credits. As such, we
will order remand for the trial court to calculate the actual custody credits.
Additionally, the abstracts of judgment do not reflect the correct sentence. The
abstract of judgment filed on May 10, 2023, for the indeterminate term, reflects that the
trial court stayed the 30-years-to-life sentence on the carjacking. The correct sentence on
the carjacking was an imposed sentence of 30-years-to-life. In addition, the abstract of
judgment filed on May 10, 2023, for the determinate sentence, reflects that defendant was
sentenced to a 30-year sentence on count 2 and that such sentence was stayed. This
sentence is incorrect as the proper sentence, after this court on appeal ordered that the
sentence on count 2 be stayed pursuant to section 654, should have been six years, which
was stayed.
At the time the trial court recalculates the actual custody credits, it shall also
prepare new abstracts of judgment to reflect the actual custody credits and to properly
reflect defendant’s sentence.
DISPOSITION
We affirm the trial court’s ruling denying defendant full resentencing under section
1172.75. The matter is remanded for the sole purpose of the trial court to calculate the
correct actual custody credits, and to prepare new abstracts of judgment reflecting the
proper custody credits and defendant’s correct sentence. The trial court is directed to
20
forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.
21
AI Brief
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Holding. The trial court did not err in denying a full resentencing under Penal Code section 1172.75 because the defendant's carjacking sentence was a mandatory indeterminate term rather than a discretionary upper term, and the defendant forfeited his claim regarding the other count by failing to raise it properly below.
Issues
Whether the trial court abused its discretion by denying a full resentencing under Penal Code section 1172.75.
Whether the trial court erred by failing to apply Senate Bill No. 567 to impose the middle term on the defendant's convictions.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The trial court did not in its discretion impose the upper term on the carjacking count but rather the mandatory alternative sentence of 15 years to life as required by section 186.22, subdivision (b)(4)(B).”
“Defendant has forfeited his claim on appeal that the trial court abused its discretion by failing to resentence him on count 2 to the middle term.”