People v. Thornburg

[1175]Opinion

RYLAARSDAM, J. When a sentence imposed under the “Three Strikes” law is reversed and the cause remanded for resentencing in light of the Supreme Court’s holding in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628], and the trial court exercises its discretion by not striking the prior conviction(s) for sentencing, must it recalculate defendant’s custody credits and issue an amended abstract of judgment? We hold that the trial court must calculate the actual number of days defendant spent in custody, whether in jail or prison, add Penal Code section 4019 conduct credits and issue an amended abstract of judgment. (All further statutory references are to the Penal Code.) Credits for good behavior and work accrued while in prison are to be calculated by the California Department of Corrections (CDC).

Discussion

Paul Ian Thornburg was convicted of possession of a controlled substance and found to have been previously convicted of a serious felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, the Three Strikes law. On appeal, we affirmed the conviction, but remanded the matter for a new sentencing hearing pursuant to the parties’ request in light of the Supreme Court’s holding in People v. Superior Court (Romero), supra, 13 Cal.4th at page 514. (People v. Thornburg (Sept. 3, 1996) G017486 [nonpub. opn.].) On remand, the trial court declined to strike defendant’s prior conviction and once again imposed a four-year prison term. The court denied defendant’s request for additional custody credits and a new abstract of judgment. Defendant appeals from this order.

The Attorney General contends the court correctly denied defendant’s request because the CDC is responsible for the calculation of credits accrued from the date of the initial sentencing and, relying on People v. Acosta (1996) 48 Cal.App.4th 411, 427 [55 Cal.Rptr.2d 675] and People v. Fares (1993) 16 Cal.App.4th 954, 957, 959 [20 Cal.Rptr.2d 314], defendant’s remedy for any miscalculation of credits is first to the trial court. We reject both contentions.

First, although we affirm the principle announced in Acosta and Fares, here defendant requested recalculation of custody credits in the trial court before proceeding with the instant appeal. Under these circumstances, it would be a waste of judicial resources to force defendant to renew his previous request before entertaining the issue on appeal. Second, it is the duty of the sentencing court to calculate actual days spent in custody