P. v. Redmond CA2/1

Filed 3/25/13 P. v. Redmond CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B241591

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA109095) v.

KEVIN LEE REDMOND,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed in part and reversed in part with directions. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Kimberley J. Baker-Guillemet, Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Defendant Kevin Lee Redmond appeals from the judgment entered following retrial of a prior prison term enhancement allegation and resentencing. Defendant contends the trial court improperly imposed the prior prison term enhancement twice and erred in its recalculation of his credits. We agree that the trial court erroneously awarded defendant conduct credits for the time he spent in prison prior to his resentencing, but otherwise affirm. BACKGROUND Defendant was convicted by a jury of possessing cocaine base for sale and selling cocaine base and sentenced to five years in prison, including one year for a prior prison term enhancement under Penal Code section 667.5, subdivision (b). (Undesignated statutory references are to the Penal Code.) On his appeal in case No. B226809, defendant challenged, inter alia, the adequacy of his admission of the prior prison term enhancement allegation. We concluded that defendant’s admission was insufficient, reversed the trial court’s true finding on the enhancement allegation, and remanded for further proceedings. We expressly stated that the prosecutor would be permitted to retry the enhancement allegation. Upon remand, a court trial was conducted regarding the prior prison term enhancement allegation. The prosecutor introduced certified records from the Department of Corrections and Rehabilitation pursuant to section 969b to prove the enhancement allegation. The court found the allegation true and resentenced defendant to five years in prison, including one year for the prior prison term enhancement, for count 1 (possession of cocaine base for sale) and a concurrent term of four years for count 2 (selling cocaine base). The court stated, “I’m going to impose the one year only one time. So no additional time is ordered as to count 2.” Nonetheless, the clerk’s minute order and abstract of judgment indicate that the court imposed, but stayed, the prior prison term enhancement for count 2.