People v. Fitch CA4/1

Filed 2/8/24 P. v. Fitch CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081565

Plaintiff and Respondent,

v. (Super. Ct. No. RIF1502606)

JUSTIN DANIEL FITCH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, Mark E. Johnson, Judge. Reversed and remanded with directions.

William J. Capriola, 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, A. Natasha Cortina and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

In 2020, Justin Daniel Fitch was convicted of assault on a child under

the age of eight resulting in a comatose state (Pen. Code § 273ab, subd. (b);1 count 1); child abuse likely to produce great bodily injury (§ 273a, subd. (a); count 2); sexual penetration of a child age 10 or younger (§ 288.7, subd. (b); count 3); torture (§ 206, count 4); and misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 5). As to count 2, it was also alleged that Fitch personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). He received a sentence of nine years plus 29 years to life in prison. In 2022, this Court affirmed Fitch’s convictions but remanded for resentencing under the newly-amended version of section 1170, with additional directions to stay the sentence for his torture conviction on count 4 pursuant to section 654. (People v. Fitch (July 5, 2022, D078987 (Fitch I)) [nonpub. opn.].) In 2023, the court resentenced Fitch to seven years plus 22 years to life in prison. The court calculated the sentence as follows: the middle term of four years on count 2, plus three years for the great bodily enhancement, plus consecutive indeterminate terms of seven years to life on count 1, plus 15 years to life on count 3, and a concurrent 180-day jail term on count 5. The court also imposed and stayed a seven years to life sentence on count 4. Credits were ordered “to remain as previously ordered.” Fitch now raises two issues on appeal: first, that the trial court should have calculated his actual custody credits between his original sentencing date and his resentencing date; and second, that the trial court erred by imposing sentences of “seven years to life” instead of life with the possibility of parole for his convictions on counts 1 and 4. The Attorney General argues