P. v. Arceo
Filed 6/25/12 P. v. Arceo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
BENIGNO VELASQUEZ ARCEO,
Defendant and
Appellant.
2d Crim. No.
B231664
(Super. Ct.
Nos. KA078086, KA076068)
(Los
Angeles County)
Benigno Velasquez Arceo
appeals a judgment entered following our remand for resentencing. (People
v. Arceo (May 17, 2010,
B213721) [nonpub. opn.].) We order the
trial court to: 1) amend the abstract of
judgment to reflect an additional 781 days of actual custody credit, and 2)
correct the sentencing minute order to delete the word "base" in the
phrase "determinate base term."
We otherwise affirm.
FACTS
AND PROCEDURAL HISTORY
On October 25, 2006, Arceo and his codefendant
accosted and struck a man as he entered an electronics store. When the victim activated his cellular telephone
to call police, Arceo discharged a firearm at the victim and the building. The victim suffered a gunshot wound to his
upper leg and store windows were broken.
Arceo and his codefendant were members of the Puente
v. Arceo, supra, B213721.)
The jury convicted Arceo
of attempted willful, deliberate, and premeditated murder, and
subd. (a), 246.)
title="">[1] The jury also found that Arceo committed the
crimes to benefit a criminal street gang, and that he intentionally discharged
a firearm causing great bodily injury.
(§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b)-(e).)
in violation of probation following his conviction of
v. Arceo, Super. Ct. Los Angeles County, 2006, No. KA0706068; Health &
Saf. Code, § 11359.)
At the initial
sentencing on January 16, 2009, the trial court sentenced Arceo to consecutive
terms of life imprisonment for the attempted premeditated murder and 25 years
to life for the firearm enhancement; a concurrent five-year term for shooting
at an occupied building; and an eight-month term for marijuana possession to be
served consecutively to the indeterminate life terms. (People
v. Arceo, supra, B213721.) Arceo appealed. We concluded that the court erred in
calculating the indeterminate and determinate terms together and remanded for
resentencing. (Ibid.)
On March 8, 2011, the trial court resentenced Arceo
to a total determinate term of five years eight months and to an indeterminate
term of life plus 25 years to life imprisonment. The court ordered the determinate and
indeterminate terms to be served concurrently.
The parties stipulated to the fines and fees previously imposed and the
court awarded Arceo 831 days of presentence custody
credit (actual and conduct), from arrest through initial sentencing on January 16, 2009. The court denied Arceo's later written motion
to calculate his custody credit through the date of resentencing.
Arceo appeals and
contends that the trial court erred by:
1) denying his request to award him additional custody credit through
the date of resentencing, and 2) recording his sentence in the clerk's minutes
as a "determinate base term."
Arceo argues that the
trial court erred by declining to calculate his actual custody credit from the
date of initial sentencing through the date of resentencing. (People
v. Buckhalter (2001) 26 Cal.4th 20, 29 ["[W]hen a prison term already
in progress is modified as the result of an appellate sentence remand, the
sentencing court must recalculate and credit against the modified sentence
already served, whether in jail or prison"].) The Attorney General concedes that the court
mistakenly believed it was the responsibility of the Department of Corrections
and Rehabilitation to calculate the custody credit and agrees that Arceo is
entitled to an additional 781 days of actual custody credit. The parties are correct that the trial court
should have determined all actual days Arceo spent in custody, whether in jail
or prison. (Ibid.)
II.
Arceo also contends that
the trial court clerk improperly referred to his determinate term as
"determinate base term" in the court minutes. He points out that a "base" term is
one selected from a triad of terms specified for a particular
rule 4.405(2).) The Attorney General
properly concedes that the trial court's minute order must be corrected nunc
pro tunc.
Accordingly, we order
the trial court to amend the abstract of judgment to reflect an additional 781
days of actual custody credit, and to forward the amended abstract of judgment
to the Department of Corrections and Rehabilitation. The court shall also correct the sentencing
minute order to delete the word "base" in the phrase
"determinate base term." The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Tia
Fisher, Judge
Superior
Court County
of Los Angeles
______________________________
Alan Siraco, 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, Margaret E. Maxwell, Elaine F.
Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] Reference to section
12022.53 is to the version in effect prior to repeal effective January 1, 2012.
