People v. Titterington CA3

Filed 8/28/14 P. v. Titterington CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C075674

Plaintiff and Respondent, (Super. Ct. No. 11F00178)

v.

DENNIS EUGENE TITTERINGTON,

Defendant and Appellant.

Defendant Dennis Eugene Titterington appeals from resentencing after remand, contending his credit award is deficient. We agree and will modify the judgment. BACKGROUND A jury found defendant guilty of three counts of lewd and lascivious acts on a child under the age of 14 years (counts 1 through 3; Pen. Code, § 288, subd. (a)),1 and

____________________________________________________________________ 1 Further undesignated statutory references are to the Penal Code.

1

one count of oral copulation on a child under the age of 10 years (count 5; § 288.7, subd. (b)). (People v. Titterington (Aug. 20, 2013, C069994) [nonpub. opn.] slip. opn. p. 1.) The trial court sentenced him to an indeterminate term of 15 years to life on count 5, plus an aggregate determinate term of 12 years on counts 1 through 3. (Id. at p. 2.) On appeal, we reduced count 5 to a violation of section 288a, subdivision (c)(1) and remanded for resentencing on all counts. (Id. at pp. 3-7.) On remand, the trial court resentenced defendant to an aggregate term of 14 years in state prison. Defendant asked for 1,063 days of actual credit and 159 days of conduct credit. The People protested (incorrectly, as we discuss post) that defendant was only entitled to six additional days of actual credit and that anything more was “within the purview of the Department of Corrections to determine.” The court awarded defendant an additional six days of actual custody credit for the time defendant had spent in local custody pending resentencing, adding the six days to the total of 310 days credited defendant at the time of his first sentencing, for a total of 316 days of actual credit.2 Defendant timely appeals. DISCUSSION Defendant contends he is entitled to additional actual custody credit for the time period between his original sentencing and resentencing after remand, as required by People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter). The People agree, and so do we. Defendant adds that he was entitled to the additional six days of conduct credit appearing in the abstract of judgment. The People disagree, as do we. A defendant “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.”