P. v. Horner CA4/3

Filed 11/9/26 P. v. Horner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G065399

v. (Super. Ct. No. 12CF2916)

DANIEL VERNON HORNER, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed and remanded with directions.
Law Offices of Allen G. Weinberg and Allen G. Weinberg, under
appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Elizabeth M. Renner, A. Natasha Cortina, and Anne Spitzberg, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2014, defendant Daniel Vernon Horner was sentenced to 55
years to life in prison for sexually abusing two children. After the judgment
was affirmed on appeal and became final, Horner successfully petitioned for
habeas relief on one of the counts—count 4—which caused the case to be
transferred back to the trial court for resentencing. At that point, Horner
requested full resentencing on all aspects of his sentence under current law.
The trial court denied that request and limited resentencing to count 4, the
sole count on which habeas relief had been granted. The result was a 10-year
reduction in Horner’s sentence.
In this appeal, Horner contends the trial court erred by not
granting his request for full resentencing. Guided by the California Supreme
Court’s recent decision in People v. Esquivias (2026) 20 Cal.5th 734
(Esquivias II), we conclude the trial court did not abuse its discretion by not
conducting a full resentencing hearing. In addition, because the court found
the circumstances of Horner’s offenses did not warrant further reducing his
sentence on count 4 by converting the consecutive sentence on that count to a
concurrent one, any error in failing to grant him full resentencing on the
other counts was harmless. We thus affirm the amended judgment
sentencing Horner to prison for 45 years to life. However, because the trial
court failed to calculate Horner’s custody credits, we remand for that limited
purpose.
FACTUAL AND PROCEDURAL BACKGROUND
I.
FACTS
Horner sexually abused two children in episodes that occurred six
years apart. As recounted in this court’s prior opinion on Horner’s direct
appeal, the evidence at trial revealed the following:

2
“In October 2006, nine-year-old Harry S. lived with his mother,
Lorena S., and two sisters in a motel in Los Angeles County. Lorena was
friends with Horner and she allowed him to take Harry for the day. However,
Horner claimed he ran out of gas and lost his cell phone and the day
excursion turned into an entire weekend at his home in Orange County.
Although Horner lived with his girlfriend’s parents, no one was home that
weekend. During that weekend, Horner insisted Harry take four showers.
Horner joined Harry in the shower and sexually assaulted him during each
shower—Horner would rub Harry’s penis for 10 to 15 seconds. Horner also
touched Harry’s penis outside of the shower in the bathroom.
“On one occasion, Harry got out of the shower and Horner
ordered him to ‘turn around’ and put his hands on the wall. Horner
threatened to hit and spank Harry if he told anyone. When Harry refused,
Horner spanked Harry’s bare buttocks and responded, ‘Is that proof enough
for you?’
“On another occasion, after Harry showered and had dressed,
Horner told him to drop his pants and his underwear. When Harry refused,
Horner pulled down Harry’s pants and underwear. He threatened Harry
again and spanked him twice on his bare buttocks. At some point Horner
threatened Harry with a knife. Horner approached Harry from behind, held a
knife to his penis, and said, ‘“Have faith and trust, if you tell, I will cut it off.”’
“Horner also kissed Harry that weekend. The first time was
during the second shower. After Horner rubbed Harry’s penis, Horner kissed
him on the cheek. During the fourth shower, Horner ‘French kissed’ Harry,
inserting his tongue into Harry’s mouth. Harry estimated Horner kissed him
four to six times that weekend.

3
“Horner drove Harry to Lorena’s on Sunday night. Harry, upset
and confused, told his two sisters what had happened. Harry’s oldest sister,
Vanessa, told Lorena and they took him to a Los Angeles Sheriff’s station the
next morning. Harry spoke to a sheriff’s deputy with Lorena present. Harry
explained how Horner had repeatedly showered naked with him, rubbed his
penis, threatened to cut off his penis with a knife, and hit him. Harry recalled
the deputy suggesting he ‘“[g]ive it a week.”’ The deputy reported the matter
to the Department of Child and Family Services; the report should have also
been sent to the Orange County Sheriff’s Department.
“Shortly thereafter, Harry and his family moved to Arizona.
Eventually, Horner joined Harry’s family in Arizona and lived with them for
a while. Harry and Lorena forgave Horner but did not forget what he had
done. Harry avoided being alone with Horner, although they lived with him
on several occasions over the course of the next six years. Authorities never
contacted Lorena or Harry.
“[¶] . . . [¶]
“In August 2012, Horner agreed to help his friend’s sister,
Rosalyn M., babysit her three-year-old son Vincent J. in Orange County. One
night, Rosalyn noticed discoloration and bruising around Vincent’s genitals,
above and on his penis. When she asked him what happened, Vincent
indicated Horner slapped his penis. Rosalyn touched Vincent’s bruise to
confirm it was a bruise and Vincent, said, ‘Owie.’ Rosalyn called child
protective services and they advised her to take Vincent to a doctor and not to
confront Horner or let him be alone with Vincent. Rosalyn photographed
Vincent’s injuries with her cellular telephone.
“The next day, Rosalyn took Vincent to the hospital where
officers documented his injuries. That same day, officers contacted Horner,

4
who was still at Rosalyn’s home. Horner denied knowing Vincent was injured,
with the exception of a skinned knee. He denied hitting, spanking, or abusing
Vincent.
“A few weeks later, Officer Natalie Nguyen went to Horner’s
home and interviewed him. This time Horner said he had not only noticed
some bruising on Vincent but he photographed it. Horner maintained the
only bruising he saw was near Vincent’s abdomen, although the photographs
he took showed bruising and red marks near Vincent’s genitals. Horner
claimed he did not tell officers about these injuries because he forgot. Horner
denied causing the bruises and said he took the photographs because of an
incident involving his son.
“Nguyen learned of Harry’s report when she ran Horner’s name
through [a law enforcement] database. When Lorena arrived at Horner’s
home while Nguyen was there, Lorena refused to speak to Nguyen. At some
point, Lorena, Harry, and Horner agreed to tell Nguyen it had been a
misunderstanding between Horner and Harry. However, Harry eventually
told Nguyen the truth about Horner’s sexual assaults. Officers found child
pornography on Horner’s computer that had been downloaded in February
2010 and March 2011. The pornography depicted young children engaging in
or personally simulating sexual conduct.” (People v. Horner (Feb. 25, 2016,
G050242) [nonpub. opn.].)
II.
VERDICT, SENTENCE, AND DIRECT APPEAL
In 2014, a jury convicted Horner of four counts of lewd and
lascivious conduct with a person under the age of 14 (counts 1–3 as to Harry;
count 4 as to Vincent) and one count of possessing child pornography (count

5
1
5). (Pen. Code, §§ 288, subd. (a), 311.11, subd. (a).) On counts 1 through 4,
the jury also found true allegations Horner sexually abused multiple children
for purposes of the One Strike law under section 667.61.
Due to the multiple victim findings, Horner faced mandatory
sentences of 15 years to life on counts 1 through 3 and an indeterminate life
sentence on count 4. In his sentencing brief, defense counsel argued the lewd
acts in counts 1 through 3 all occurred during a continuous course of conduct,
and the trial court should therefore either apply section 654 to stay execution
of punishment on two of those counts or impose concurrent sentences. The
prosecution’s sentencing brief advocated for the maximum sentence of 73
years to life in prison.
The sentencing hearing took place on June 6, 2014, before Judge
Gary S. Paer. As to counts 1 through 3, Judge Paer found that, although they
involved the same victim, they occurred on separate and distinct occasions,
which allowed Horner ample time to reflect on each of his illegal acts.
Therefore, on counts 1 and 2, Judge Paer imposed consecutive sentences of 15
years to life. On count 3, however, Judge Paer imposed a concurrent term of
15 years to life, due to the fact Horner did not have a prior criminal record.
Sentencing on count 4 raised an issue that ultimately supplied
the basis for Horner’s subsequent petition for writ of habeas corpus. Both
sides agreed that, because Horner victimized multiple children, he was
subject to a mandatory indeterminate life sentence under section 667.61.
However, the parties disagreed regarding the length of Horner’s minimum
term. Defense counsel argued the minimum term should be 15 years because
Horner was charged with violating subdivisions (b) and (e)(4) of section

1
All further statutory references are to the Penal Code.

6
667.61, which require a term of 15 years to life when the defendant victimizes
multiple children. But the prosecutor urged the court to invoke section
667.61, subdivision (j)(2), which requires a term of 25 years to life if one of the
victims was under 14 years of age. Although Horner had not been charged
with violating subdivision (j)(2), the trial court invoked that provision to
sentence Horner to a consecutive term of 25 years to life on count 4.
Lastly, on count 5, the trial court imposed a concurrent midterm
sentence of two years, making Horner’s total sentence 55 years to life in
prison.
In 2016, another panel of this court affirmed the judgment on
direct appeal in all material respects. (People v. Horner, supra, G050242.)
Because Horner did not seek further review after the California Supreme
Court denied his petition for review, the judgment became final 90 days later,
on August 9, 2016. (See People v. Lizarraga (2020) 56 Cal.App.5th 201, 206
[judgment is final when the time for seeking certiorari review in the United
States Supreme Court has expired].)
III.
HABEAS CORPUS PROCEEDINGS
In 2017, Horner filed a petition for writ of habeas corpus alleging
his 25-year-to-life sentence on count 4 violated due process. As he did at the
time of sentencing, Horner argued he should only have been sentenced to 15
years to life on that count because the prosecution charged him with violating
subdivisions (b) and (e)(4) of section 667.61, not subdivision (j)(2). Horner did
not challenge any other aspect of his sentence or request full resentencing in
the event the trial court granted his petition. The habeas court denied
Horner’s petition in May 2018.

7
In 2019, Horner filed a second habeas petition on the same basis.
By then, however, there was case authority supporting Horner’s due process
argument. In his prayer for relief, Horner asked to be resentenced to 15 years
to life on count 4 and for any further relief the court deemed just and proper.
After the habeas court issued an order to show cause, the parties agreed to
continue the matter several times over the course of several years, pending
the California Supreme Court’s decision in In re Vaquera (2024) 15 Cal.5th
706 (Vaquera).
The Vaquera decision came down on February 5, 2024. Like
Horner, the defendant in that case was convicted of sexually abusing multiple
children under the One Strike law. (Vaquera, supra, 15 Cal.5th at p. 715.)
Also like Horner, the defendant was sentenced to 25 years to life on one of the
counts under section 667.61, subdivision (j)(2), even though he had only been
charged with the 15-year-to-life enhancement under subdivisions (b) and
(e)(4). (Vaquera, at pp. 714–715.) On review of the defendant’s habeas
petition, the Supreme Court found his 25-year-to-life sentence violated due
process for lack of notice and directed the trial court to resentence him to 15
years to life on the subject count. (Id. at pp. 717–725.) In so doing, the
Supreme Court did not address whether the defendant was entitled to full
resentencing in light of that reduction. (Id. at p. 728.)
Following the Supreme Court’s decision in Vaquera, the
prosecution conceded Horner’s habeas petition had merit, and the habeas
judge granted the petition by vacating Horner’s sentence on count 4. The
habeas judge then transferred Horner’s case back to Judge Paer for
resentencing.

8
IV.
RESENTENCING
At the resentencing hearing on May 17, 2024, Judge Paer told the
parties, “This case was sent from C5 back to this court. There was a habeas
granted as to [c]ount 4. It was the [habeas court’s] position that [this court]
needed to re-sentence [Horner] on [c]ount 4. The habeas did not address
anything else.”
Based on that understanding, Judge Paer said he intended to
limit resentencing to count 4 and simply reduce Horner’s sentence on that
count from 25 years to life to 15 years to life, making his new aggregate
sentence 45 years to life in prison. At the request of Horner’s attorney,
however, Judge Paer agreed to allow additional briefing on the scope of the
resentencing hearing.
In his brief, defense counsel argued in favor of applying the “full
resentencing rule,” which gives resentencing courts the authority to conduct
“‘a full resentencing as to all counts . . . so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’” (People v.
Buycks (2018) 5 Cal.5th 857, 893–894.) While recognizing Judge Paer did not
have authority to strike Horner’s punishment on counts 1 through 4 due to
the multiple victim findings, defense counsel argued there were changed
circumstances that warranted concurrent sentences on counts 2 and 4, which
would reduce Horner’s sentence by another 30 years, down to 15 years to life.
In so arguing, defense counsel represented that Horner himself
was a victim of childhood sexual abuse. Counsel contended that circumstance
contributed to Horner’s criminal conduct and should be considered a
mitigating factor in light of various new sentencing laws. (See, e.g., §§ 1385,
subd. (c)(2)(E) & (6)(A) [listing childhood trauma, including sexual abuse, as a

9
mitigating circumstance courts must consider when deciding whether to
dismiss an enhancement in the interest of justice]; 1170, subd. (b)(6)(A)
[creating a presumption in favor of the lower term for a determinate sentence
when the defendant has been a victim of childhood sexual violence and that
violence was a contributing factor to his crime]; Cal. Rules of Court, rule
4.423(b)(3) [identifying childhood sexual violence as a mitigating
circumstance at sentencing].)
In arguing for leniency, defense counsel also pointed out Horner
was only 22 years old at the time he sexually abused Harry. (See Cal. Rules
of Court, rule 4.423(b)(6) [listing as a mitigating circumstance that the
defendant was under the age of 26 at time of his crimes].) And defense
counsel reiterated the argument first made at Horner’s original sentencing
hearing that concurrent sentencing was warranted for all three offenses
involving Harry because they were temporally related and reflected only a
single episode of aberrant behavior.
In its opposition papers, the prosecution urged the trial court to
limit the resentencing hearing to count 4, which was the sole basis for
Horner’s habeas petition. In support of this limited approach, the prosecution
relied on People v. Esquivias (2024) 103 Cal.App.5th 969 (Esquivias I), review
granted October 2, 2024, S286371, which was then pending review in the
California Supreme Court. In that case, Division Two of the Second District
Court of Appeal analyzed the full resentencing rule in the context of a habeas
proceeding in which the defendant obtained sentencing relief on part of his
overall sentence. While not ruling out the possibility of full resentencing in
that context, the court held defendants are not automatically entitled to full
resentencing just because a portion of their sentence has been vacated
through the habeas process. (Id. at pp. 976–980.)

10
The prosecution also addressed the prospect of full resentencing
if Judge Paer should decide that remedy was appropriate in Horner’s case.
Based on the circumstances of Horner’s offenses, the prosecution argued
Horner posed a threat to public safety and his sentence therefore should not
be reduced beyond the 10-year reduction compelled by the habeas grant on
count 4.
At the resentencing hearing, Judge Paer stated, “It was very
clear that [Horner’s] habeas [petition] only dealt with [c]ount 4. [Esquivias I]
held that a trial court is not obligated to revisit a [d]efendant’s entire
sentence on the habeas review merely because it grants review to revisit a
portion of that sentence. So I’m inclined to follow [Esquivias I],” which led
Judge Paer to deny Horner’s request for full resentencing.
Nevertheless, Judge Paer stated he would be willing to consider
whether to resentence Horner from a consecutive to a concurrent term on
count 4, which would reduce Horner’s aggregate term to 30 years to life in
prison. At that point, defense counsel reiterated the arguments he made in
his sentencing brief about why Horner’s childhood sexual abuse justified a
reduced sentence under current law. The prosecutor opposed any further
reduction in Horner’s sentence on public safety grounds.
After hearing argument, Judge Paer said he was willing to
assume for purposes of argument that Horner had suffered childhood sexual
abuse. However, Judge Paer ultimately decided against a concurrent
sentence on count 4. Explaining the basis for his decision, Judge Paer stated
the victim in that count “was extremely vulnerable at age three,” and with
respect to both victims, Horner “violated a position of trust as a baby-sitter,
and he inflicted injury on the three-year-old and there were bruises near the

11
penis. Not only that, but those bruises were photographed and saved on
[Horner’s] computer.
“[Horner] also lied about his involvement and said he knew
nothing about it, which was the farthest thing from the truth because he
inflicted it and he saved pictures of it.
“Also [Horner] had hit the three-year-old. And not only did he hit
the three-year-old, but when we look at Harry he had hit Harry numerous
times during that long weekend when he had Harry alone at the house. He
also used a weapon on Harry, and he threatened to cut off Harry’s penis with
a knife.
“These factors are huge factors when we look at danger to the
community, as well as this is violent stuff going on with extremely young
victims. One is three and one is nine. I understand that there might be
medical evidence that [Horner] might have been abused . . . in his past. There
might be a report corroborating that.
“I look at it this way. That explains why he did those things to
Harry and Vincent. That can explain why someone who’s been abused as a
child later turns out doing the same thing to others. That’s well documented.
That’s not a stretch. But in the [c]ourt’s mind that explains why he did it.
“However, the D.A. makes a point that I agree with. It doesn’t
mitigate any public safety concerns. And also when we go to [c]ount 4, [that
count] deals with Vincent probably the more vulnerable of the two because
he’s only three years old. In the [c]ourt’s mind this is a matter of public
safety, and I view [Horner] as being dangerous to society in reference to
young boys. There is an old saying that the best predictor for future conduct
is past conduct.
“[¶] . . . [¶]

12
“Also, I want to remind everyone that I also mitigated [Horner’s]
sentence a little bit [at his original sentencing hearing] because on [c]ount 3 I
ran that concurrent. Everyone forgets. I ran that one concurrent based on his
lack of criminal record and I’m certainly going to keep that. I’m not going to
touch that.
“But again, I’m willing to comply with the law and reduce [the
sentence on count 4] from 25 to life to 15 to life. But that is going
to be a consecutive sentence. We have two victims here. Both really young.
Both real vulnerable. Separate crimes on both of them. Highly offensive
crimes. He used force on both of them. He made threats on one of them. It’s
not a good factual scenario. Even though [Horner] might have been a
victim himself that doesn’t give him a free pass on a victim who is three years
old.”
With that, Judge Paer reduced Horner’s prison sentence on count
4 from 25 to 15 years to life and left the remainder of his sentence intact,
making Horner’s new aggregate sentence 45 years to life. The court also left
Horner’s custody credit award intact. While recognizing Horner was entitled
to credit for the time he had served in prison, the court ordered the
Department of Corrections and Rehabilitation to calculate Horner’s custody
credits.
DISCUSSION
Horner claims he was entitled to full resentencing after receiving
habeas relief on count 4. He also claims the matter must be remanded to
allow the trial court to calculate his custody credits. We agree with Horner’s
second claim, as does the Attorney General. However, we conclude Judge
Paer did not abuse his discretion by denying Horner’s request for full

13
resentencing, and even if he did, the error was harmless under the
circumstances presented.
I.
FULL RESENTENCING WAS NOT REQUIRED
While Horner’s appeal was pending in this court, the California
Supreme Court issued its decision in Esquivias II, supra, 20 Cal.5th 734.
Having received supplemental briefing from the parties on that decision, we
conclude there is no basis to disturb Judge Paer’s decision to deny Horner’s
request for full resentencing.
In Esquivias II, the defendant was sentenced to over 100 years in
prison, of which roughly 38 years were attributable to mandatory firearm
enhancements. (Esquivias II, supra, 20 Cal.5th at p. 739.) After the judgment
was affirmed on appeal, but a month before it became final, the Legislature
enacted a new sentencing law that gave trial courts the authority to strike
the defendant’s firearm enhancements in the interest of justice. Four years
later, the defendant filed a petition for habeas corpus requesting retroactive
application of the new law. (Id. at p. 740.) The habeas court granted the
petition by exercising its discretion to strike the defendant’s firearm
enhancements, thereby reducing his sentence by 38 years and four months.
(Ibid.) However, the court rejected the defendant’s claim he was entitled to
full resentencing with the benefit of all ameliorative laws that had been
enacted since he was originally sentenced. (Ibid.) In fact, the court indicated
it would not have granted the defendant habeas relief in the first place if it
2
had believed that would reopen the case for full resentencing. (Ibid.)

2
Unlike in Horner’s case, the habeas judge and the resentencing
judge were one and the same in Esquivias II. (Esquivias II, supra, 20 Cal.5th
at p. 756 (dis. opn. of Evans, J.).) We do not find that procedural distinction

14
On appeal, the defendant took an all-or-nothing approach to the
resentencing issue. (Esquivias II, supra, 20 Cal.5th at pp. 738–740.) While
recognizing trial courts are not required to grant sentencing relief in response
to every petition for habeas corpus, the defendant argued that if the trial
court does grant sentencing relief as to any part of a sentence, that renders
the entire judgment nonfinal, and the court must revisit every aspect of the
sentence in light of the current sentencing laws. (Ibid.; see generally In re
Estrada (1965) 63 Cal.2d 740 [ameliorative legislation is generally presumed
to apply to cases that are not final].) As in Esquivias I, however, that
argument did not prevail in Esquivias II.
Emphasizing the discretionary nature of habeas proceedings, the
Supreme Court explained “‘habeas corpus is, at its core, an equitable remedy.’
[Citation.] Under well-established habeas corpus principles, ‘[a] court
considering a petition for writ of habeas corpus has broad authority to craft a
remedy “as the justice of the case may require.”’ [Citation.] ‘“[I]t is well
settled that the writ of habeas corpus does not afford an all-inclusive remedy
available at all times as a matter of right.”’ [Citations.] It may well be that
the equities of a particular case require the habeas corpus court to vacate a
petitioner’s entire sentence and conduct a full resentencing, applying all
relevant ameliorative laws, but that will not always be the case. Rather, a
court’s determination of the most appropriate equitable remedy in a habeas
corpus matter is a case- and fact-specific inquiry.” (Esquivias II, supra, 20
Cal.5th at pp. 742–743.)
The Esquivias II court discussed a number of reasons why the
equities in that case did not require full resentencing. To begin with, the

meaningful in terms of deciding Horner’s appeal, and neither party has
suggested that it is.

15
defendant could have sought application of the new sentencing law in the
normal course of his appeal. Instead, he did not bring his habeas claim until
four years later, which put him in the position to seek retroactive application
of additional ameliorative statutes that were enacted after his judgment
became final. (Esquivias II, supra, 20 Cal.5th at p. 752.) The Supreme Court
found this “unusual” scenario—in which the defendant stood to obtain a
windfall by delaying his claim for relief—supported the trial court’s decision
to deny the defendant full resentencing. (Id. at pp. 751–752.)
The Supreme Court also found it significant that defendant’s
original sentence was legally valid and the relief he sought on habeas
regarding his firearm enhancements was entirely discretionary; therefore,
the habeas court could have declined to exercise its discretion and left the
defendant’s sentence undisturbed. (Esquivias II, supra, 20 Cal.5th at p. 746.)
The court distinguished that situation from one in which the defendant’s
entire sentence was vacated on habeas review because it was constitutionally
unauthorized. (Id. at pp. 745–746, citing People v. Padilla (2022) 13 Cal.5th
152, 159, 164, 168 [full resentencing required where habeas court vacated the
defendant’s sentence on Eight Amendment grounds].)
Equally important, the Supreme Court noted there was no
statutory basis for full resentencing in Esquivias II. Although some statutes
require the trial court to conduct a new sentencing hearing following a
modification of the defendant’s sentence (e.g., § 1172.75), the defendant in
Esquivias II had no right to resentencing on statutory grounds. (Esquivias II,
supra, 20 Cal.5th at pp. 753–754.)
“Since a full resentencing was neither constitutionally nor
statutorily compelled to remedy [the defendant’s] specific claim for
discretionary, retroactive sentencing relief,” the Supreme Court held “the

16
habeas corpus court had broad equitable authority to conclude that ‘the
justice of the case’ only required striking [the defendant’s] firearm
enhancements.” (Esquivias II, supra, 20 Cal.5th at p. 738.) The trial court
was not required to conduct a full resentencing simply because it granted the
3
defendant habeas relief as to part of his sentence. (Ibid.)
We reach the same conclusion here. Horner attempts to
distinguish Esquivias II on the grounds that his habeas claim was based on
constitutional grounds and he pursued it in a diligent manner. However,
despite the constitutional basis for and timely nature of Horner’s habeas
petition, it targeted only a portion of his sentence. And the 10-year reduction
it led to on count 4 did not impact any other aspect of his sentence. Indeed,
count 4 involved an incident that was separate and distinct from the other
counts in terms of the victim and when and where it occurred.
This is not a case where the various components of the
defendant’s sentence were so intertwined and interdependent that a
modification of one count necessitated a reevaluation of all other counts. (See
People v. Walker (2021) 67 Cal.App.5th 198, 206 [ordering a full resentencing
hearing on the basis “a criminal sentence is, like an atom, indivisible” such
that “[t]he invalidity of one component infects the entire scheme”].) To the
contrary, each of the four lewd act counts carried a mandatory indeterminate
sentence that Judge Paer was powerless to modify; the most he could do was
to order the mandatory sentences on the counts to run concurrently with each
other (which, as to one of the counts, he did at the time of the original

3 Two Justices disagreed with this conclusion. The dissent,

authored by Justice Evans and joined by Justice Liu, advocated for a rule
requiring full resentencing whenever a habeas court strikes part of a
defendant’s sentence. (Esquivias II, supra, 20 Cal.5th at pp. 756–773 (dis.
opn. of Evans, J.).)

17
sentencing). So, even though Horner obtained a partial reduction of his
sentence on due process grounds, the constitutional nature of his claim did
not necessitate full resentencing. (Compare People v. Padilla, supra, 13
Cal.5th at pp. 159, 164, 168 [full resentencing required where habeas court
vacated the defendant’s entire sentence for constitutional reasons].)
It is also apparent that full resentencing was not required by
statute. Horner has not identified a statutory basis for full resentencing, and
we are not aware of any. Because full resentencing was neither statutorily
nor constitutionally required to remedy the sentencing error raised in
Horner’s habeas petition as to count 4, Judge Paer did not abuse his
4
discretion in denying Horner’s request for full resentencing.
II.
ANY ERROR IN FAILING TO CONDUCT A FULL RESENTENCING HEARING
WAS HARMLESS
Even if we were to assume Judge Paer abused his discretion by
failing to conduct full resentencing following the habeas grant, reversal is not
required because it is not reasonably probable Horner would have received a
more favorable sentence had full resentencing occurred. (See People v. Scott
(1994) 9 Cal.4th 331, 355 [reasonable probability standard of harmless error
applies when the trial court’s sentencing error involves an abuse of
discretion]; People v. Knowles (2024) 105 Cal.App.5th 757,764–765 [same].)

4
In light of this conclusion, we reject Horner’s claim the habeas
grant rendered his entire judgment nonfinal. Because the habeas grant
affected only count 4, the remaining counts remained final throughout the
proceedings and there was no need for Judge Paer to resentence Horner on
those counts.

18
We know that because, even though Judge Paer denied Horner’s
request for full resentencing, he did entertain defense counsel’s argument for
a greater reduction of Horner’s sentence than what was required by the grant
of the habeas petition. Specifically, whereas the habeas grant only required a
10-year sentence reduction on count 4, Judge Paer heard extensive argument
on whether he should also order that count to run concurrently to Horner’s 15
year to life sentence on count 1 (rather than consecutively), which would have
reduced Horner’s aggregate sentence by another 15 years, to 30 years to life
in prison.
In doing so, Judge Paer made clear that despite the fact Horner
suffered sexual abuse as a child, and despite the Legislature’s recognition of
child sexual abuse as a mitigating sentencing factor, Horner did not deserve a
concurrent sentence on count 4, given the factual circumstances surrounding
his offenses. In light of those circumstances, Judge Paer concluded Horner
posed too great a danger to public safety to justify a further reduction in his
sentence.
Horner argues that conclusion is unsound because Judge Paer
failed to consider that his crimes against Harry in counts 1 and 2 “appear to
have been the result of a single incident.” Horner is correct that Judge Paer
did not expressly address that issue at the resentencing hearing. But he did
specifically address the issue at Horner’s original sentencing hearing. At that
time, Judge Paer expressly rejected defense counsel’s claim that Horner
victimized Harry during a continuous course of conduct, so as to warrant
concurrent sentences on counts 1 and 2. Consistent with the evidence
adduced at trial, Judge Paer instead found that Horner’s crimes against
Harry were sufficiently separated in time to allow Horner ample opportunity
to reflect on what he was doing each time he molested his young victim.

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In sum, we conclude there was no reasonable probability Horner
would have obtained a more favorable sentence had Judge Paer conducted a
full sentencing hearing following the habeas grant on count 4. The only way
Judge Paer could have further reduced Horton’s sentence on a full
resentencing would have been to change the consecutive sentence on count 2
to a concurrent sentence. But Judge Paer determined that the egregious
circumstances of Horner’s crimes against Harry and Vincent outweighed any
mitigating factors (such as Horner’s age or status as a childhood sexual
assault victim) and found that Horner remained “dangerous to society in
reference to young boys.” Given Judge Paer’s conclusion that these findings
made it inappropriate to change the consecutive sentence on count 4 to a
concurrent one, there is no reasonable probability he would have found the
same facts and factors would warrant leniency in the form of a concurrent
sentence on count 2. Accordingly, even if it was error for Judge Paer not to
conduct a full resentencing hearing on all counts, any such error was patently
harmless.
III.
CREDITS
The final issues concern Horner’s custody credits and the
accuracy of the amended abstract of judgment that was prepared after he was
resentenced by Judge Paer.
Regarding custody credits, the law is clear that when an
imprisoned defendant is resentenced following a change to his judgment, “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, italics

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omitted.) In this case, though, Judge Paer delegated that duty to the
Department of Corrections and Rehabilitation. As the Attorney General
concedes, that was improper. (§ 2900.5, subd. (d); People v. Vargas (1988) 204
Cal.App.3d 1455, 1469, fn. 9.) We therefore remand with directions on that
issue.
As for the amended abstract of judgment, Horner claims it is
incorrect because, instead of showing the date he was resentenced by Judge
Paer in 2025, it shows the date he was originally sentenced in 2014. In fact,
both dates are accurately reflected in the document. The original sentencing
date is shown in the caption section, as well as in section 15, which reflects
the credits Horner received at his original sentencing hearing. And section 14
correctly reflects the date on which Horner was resentenced by Judge Paer.
Therefore, other than to update Horner’s custody credits, there is no need to
amend the abstract.

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DISPOSITION
The judgment is affirmed and the matter is remanded to the trial
court with directions to calculate Horner’s custody credits and forward an
amended abstract of judgment to the Department of Corrections and
Rehabilitation.

GOODING, ACTING P. J.

WE CONCUR:

SCOTT, J.

SERVINO, J.

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