People v. Domenzain

[Opinion certified for partial publication. 1]

Counsel Charles M. Sevilla, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Keith I. Motley and Robert B. Shaw, Deputy Attorneys General, for Plaintiff and Respondent. Opinion

WIENER, Acting P. J. —A jury convicted Manuel Lawrence Domenzain, Jr., of first degree burglary (Pen. Code, § 459)2 and grand theft. (§ 487, subd. 1.) In People v. Domenzain (Mar. 7, 1983) 4 Crim. 13902 [unpub. opn.] we affirmed the convictions but remanded the case for resentencing. On December 12, 1983, the court resentenced Domenzain to the upper term of six years for the burglary with a concurrent sentence of three years for the grand theft. Domenzain received credit of 1,399 days for time spent in custody including 847 days actual local time plus 552 local conduct credits. Domenzain appeals on three sentence related grounds. We reject Domen-zain’s principal argument that the court’s failure to resentence him within 60 days under section 1382 requires dismissal of his case. We agree, however, that the court’s postjudgment ex parte reduction of his sentence credits was improper. Accordingly, we remand for resentencing proceedings consistent with this opinion..

I

Domenzain first says his case should be dismissed because he was not timely resentenced under section 1382.3 That section provides that following an appeal, absent good cause to the contrary, a case must be dismissed if not “tried again” within 60 days after the filing of the remittitur.

Although Domenzain may correctly assert sentencing is part of speedy trial, the language, history, and context of section 1382 preclude its application to sentencing or resentencing delay. Section 1382 is one of a series of statutes implementing article 1, section 15 of the California Constitution [622]providing for the speedy public trial of the criminal defendant. As such, section 1382 must be read in conjunction with section 1381.54 which provides for timely state court disposition of cases for defendants awaiting trial or sentencing while imprisoned in a federal correctional facility. In response to dictum in People v. Brown (1968) 260 Cal.App.2d 745, 751 [67 Cal.Rptr. 288] that the right to a speedy trial includes sentencing, section 1381.5 was amended in 1971 to refer to sentencing throughout. In re Shute (1976) 58 Cal.App.3d 543, 548 [130 Cal.Rptr. 270] reiterated the proposition from Brown in discussing section 1381.5. It is on this authority that Domenzain relies for his proposed interpretation of section 1382. It should be stressed, however, that the text of sections 1381.5 and 1382 is different. (See fns. 3 and 4 ante.)