Filed 9/28/26 P. v. Davenport CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B339886
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA131897)
v.
ANTHONY JACK
DAVENPORT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa S. Coen, Judge. Affirmed with
directions.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
_______________
Anthony Jack Davenport appeals from the judgment
entered in 2024 after he was resentenced under Penal Code
section 1172.75.1 In 2013 Davenport pleaded no contest to
robbery, attempted robbery, and six counts of petty theft with
prior convictions, and the trial court sentenced him to 20 years in
prison, including a one-year prior prison term enhancement
under section 667.5, former subdivision (b). At his 2024
resentencing, the superior court struck his prior prison term
enhancement and resentenced him to 19 years in state prison.
Davenport asserts three arguments on appeal; we agree
with the first two. Davenport contends, the People concede, and
we agree that the $280 restitution fine the trial court imposed in
2013 under section 1202.4 should be vacated pursuant to
section 1465.9, subdivision (d), because it was imposed more than
10 years ago. In addition, the June 25, 2024 abstract of judgment
should be amended to reflect an award of 3,935 days of actual
custody credits and three days of conduct credits.
Davenport further contends the superior court at the 2024
resentencing erred in imposing a four-year sentence on count two
for attempted second degree robbery, which should be reduced to
three years. Contrary to Davenport’s contention, the court
correctly imposed four years on this count under section 213,
subdivision (b), which provides an exception to section 664’s
general requirement that the sentence for an attempted crime be
one-half the term for the completed crime.
1 Further statutory references are to the Penal Code.
2
We vacate the restitution fine but otherwise affirm the
judgment. We order the superior court to amend the 2024
abstract of judgment to reflect that the restitution fine was
vacated and to award 3,935 days of actual custody credit and
three days of conduct credit.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013 Davenport pleaded no contest to second degree
robbery (§ 211; count 1); attempted second degree robbery
(§§ 211, 664; count 2); and six counts of petty theft with three
prior convictions (§ 666, former subd. (a); counts 3-8). Davenport
also admitted as to count 2 that he personally inflicted great
bodily injury on the victim (§ 12022.7, subd. (a)). In addition,
Davenport admitted he had suffered convictions of two prior
serious or violent felonies within the meaning of the
three strikes law (§§ 667 (b)-(j), 1170.12) and two convictions of
serious felonies within the meaning of section 667,
subdivision (a)(1). He further admitted he had served 10 prior
separate prison terms within the meaning of section 667.5,
former subdivision (b).
The trial court dismissed one of Davenport’s prior strike
convictions pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497. On count 2 for attempted second degree robbery,
the court imposed six years (the upper term of three years,
doubled), plus 10 years for the two serious felony enhancements,
three years for the great bodily injury enhancement, and one year
for the prior prison term enhancement, for an aggregate state
prison sentence of 20 years. The court suspended imposition of
sentence on count 1 for attempted robbery and the six counts of
3
petty theft. The court also ordered a $280 restitution fine under
section 1202.4, former subdivison (b)(1).
On June 18, 2024 the superior court held a resentencing
hearing pursuant to section 1172.75.2 After hearing argument of
counsel, the court struck the one-year prior prison term
enhancement, but it denied Davenport’s request to strike the
two 5-year serious felony enhancements. The court designated
count 2 for attempted second degree robbery as the principal
term and imposed four years (the middle term of two years,
doubled), plus three years for the great bodily injury
enhancement and 10 years for the two serious felony
enhancements. The court imposed a consecutive term of
two years on count 1 for second degree robbery (one-third the
middle term, doubled). The court suspended imposition of
sentence on the petty theft counts. The court imposed an
aggregate sentence of 19 years in state prison.
The superior court also ordered the CDCR “to calculate and
assess defendant’s credits.” The court did not address whether it
was reimposing the $280 restitution fine. The amended abstract
of judgment filed on June 25, 2024 correctly reflects the 19-year
sentence. It does not include a restitution fine, and it left the
section for “credit for time served” blank.
Davenport timely appealed.
2 Section 1172.75, subdivision (b), requires the California
Department of Corrections and Rehabilitation (CDCR) to identify
for the sentencing courts all persons “currently serving a term for
a judgment that includes an enhancement described in
subdivision (a).” Further, if a sentencing court verifies that a
defendant was sentenced under an invalid enhancement, the
court “shall recall the sentence and resentence the defendant.”
(§ 1172.75, subd. (c).)
4
DISCUSSION
A. The Restitution Fine Should Be Vacated
The Legislature amended section 1465.9, effective
January 1, 2025, to add subdivision (d), which provides for the
elimination of any unpaid balance of a restitution fine imposed
under section 1202.4. (Assem. Bill No. 1186 (2023-2024 Reg.
Sess.), Stats. 2024, ch. 805, § 1; People v. Salstrom (2025)
117 Cal.App.5th 596, 600, review granted March 11, 2026,
S295038.) Section 1465.9, subdivision (d), provides: “Upon the
expiration of 10 years after the date of imposition of a restitution
fine pursuant to section 1202.4, the balance, including any
collection fees, shall be unenforceable and uncollectible and any
portion of a judgment imposing those fines shall be vacated.”
Davenport contends and the Attorney General agrees, as do
we, that to the extent Davenport has an outstanding balance for
payment of the $280 restitution fine imposed at his
2013 sentencing, the remaining restitution fine must be vacated
under section 1465.9, subdivision (d). (See People v. Kopp (2025)
19 Cal.5th 1, 24 [vacating “unpaid balance of the restitution fine
as required by Penal Code section 1465.9, subdivision (d)”];
People v. Salstrom, supra, 117 Cal.App.5th at p. 600
[“Section 1465.9’s plain language evinces a legislative intent to
finally, and conclusively, eliminate restitution fines under
section 1202.4, subdivision (b) after 10 years.”].)3
3 Davenport and the Attorney General acknowledge that the
restitution fine was not reimposed at the 2024 resentencing but
state there may be a balance owed based on the imposition of the
restitution fine in 2013.
5
B. The Superior Court Must Amend the 2024 Abstract of
Judgment To Reflect Davenport’s Total Custody Credits
Davenport contends, the Attorney General concedes, and
we agree that the superior court erred in not recalculating
Davenport’s custody credits at the 2024 resentencing hearing and
in failing to include in the amended abstract of judgment the
total amount of custody credits the trial court awarded at the
initial sentencing hearing in 2013 plus the actual days Davenport
served in custody from the initial sentencing to the
2024 resentencing hearing.
“When a prison term already in progress is modified as the
result of an appellate sentence remand [or resentencing], the
sentencing court must recalculate and credit against the modified
sentence all actual time the defendant has already served,
whether in jail or prison, and whether before or since he was
originally committed and delivered to prison custody.” (People v.
Buckhalter (2001) 26 Cal.4th 20, 29; accord, People v. Sek (2022)
74 Cal.App.5th 657, 673; see § 2900.1 [“Where a defendant has
served any portion of his sentence under a commitment based
upon a judgment which judgment is subsequently declared
invalid or which is modified during the term of imprisonment,
such time shall be credited upon any subsequent sentence he may
receive upon a new commitment for the same criminal act or
acts.”].) And after having “determined all actual days defendant
had spent in custody,” the court should “award[] such credits in
the new abstract of judgment.” (Buckhalter, at p. 42.)
At Davenport’s October 7, 2013 sentencing hearing, the
trial court awarded Davenport 27 days of custody credit,
including 24 actual days of custody and three days of conduct
credits. As discussed, the 2024 abstract of judgment does not
6
reflect any additional days of custody credit. In his respondent’s
brief the Attorney General calculated Davenport’s actual days of
custody between the original sentencing hearing on October 7,
2013 and the June 18, 2024 resentencing hearing (including the
day of the resentencing hearing) as 3,908 days. (See People v.
Morgain (2009) 177 Cal.App.4th 454, 469 [a defendant is entitled
to custody credit that includes the date of sentencing].) This
calculation is correct. Thus, the superior court must amend the
abstract of judgment from the 2024 resentencing hearing to
award a total of 3,935 days of actual custody credit (3,908 +
27 days) and three days of conduct credit.
C. The Superior Court Did Not Err in Imposing a Four-year
Sentence on Count 2 for Attempted Second Degree Robbery
Davenport contends the superior court erred at the
2024 resentencing hearing in imposing a four-year term on
count 2 for attempted second degree robbery because the court
should have instead imposed one-half the sentence prescribed for
the completed crime under section 664, doubled, for a sentence of
three years. The court did not err.
Section 213, subdivision (a)(2), provides that the
punishment for second degree robbery is two, three, or five years
in state prison. As Davenport points out, in general, the
punishment for an attempt to commit a crime is “one-half the
term of imprisonment prescribed upon a conviction of the offense
attempted.” (§ 664, subd. (a).) However, the first sentence of
section 664 states: “Every person who attempts to commit any
crime, but fails, or is prevented or intercepted in its perpetration,
shall be punished where no provision is made by law for the
punishment of those attempts, as follows . . . .” (Italics added.)
With respect to attempted second degree robbery, there is a
7
statutory provision prescribing the punishment for attempts.
Specifically, section 213, subdivision (b), provides,
“Notwithstanding Section 664, attempted robbery in violation of
paragraph (2) of subdivision (a) [i.e., second degree robbery] is
punishable by imprisonment in the state prison.” And section 18
clarifies that “[e]xcept in cases where a different punishment is
prescribed by any law of this state, every offense declared to be a
felony is punishable by imprisonment for 16 months, or two or
three years in the state prison. . . .”
Accordingly, as the Court of Appeal concluded in People v.
Moody (2002) 96 Cal.App.4th 987, 990, because “section 213,
subdivision (b) specifically provides for the punishment of
attempted second degree robbery,” the appropriate triad terms for
attempted second degree robbery offense are “16 months,
two years, or three years.” (Accord, People v. Neely (2009)
176 Cal.App.4th 787, 797 [“Section 213, subdivision (b), when
combined with section 18, provides that attempted second degree
robbery is punishable by 16 months, two years, or three years in
state prison.”].) Thus, the superior court correctly selected the
middle term of two years on count 2 for attempted robbery as the
principal term, doubled under the three strikes law, for a total of
four years.
8
DISPOSITION
The $280 restitution fine imposed by the superior court
pursuant to section 1202.4, subdivision (b), is vacated. The court
shall prepare an amended abstract of judgment reflecting that
the restitution fine has been vacated and awarding Davenport
3,935 days of actual custody credit and three days of conduct
credit. The court shall forward a certified copy of the amended
abstract of judgment to CDCR. In all other respects, the
judgment is affirmed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.
9