Filed 9/9/26 P. v. Lewis CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053152
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1646378)
v.
MICHAEL JAMESLEE LEWIS,
Defendant and Appellant.
Defendant Michael Jameslee Lewis was convicted by jury of assault with a
semiautomatic firearm and related offenses after he randomly shot at moving vehicles
over the course of many months. The jury also found true firearm enhancement
allegations for which the trial court ultimately struck punishment at resentencing after an
earlier appeal and remand. Defendant argues that the trial court at resentencing should
not have limited his presentence conduct credits to 15 percent of his confinement period
because he was no longer convicted of a violent felony. We conclude the trial court
correctly limited defendant’s presentence conduct credits but accept the Attorney
General’s concessions regarding defendant’s entitlement to additional presentence
confinement credit and clerical errors. We will reverse the judgment and remand the
matter for the limited purposes of awarding defendant confinement credit for the period
between his original sentencing hearing and resentencing hearing and correcting clerical
errors in the minute order and abstract of judgment.
I. BACKGROUND
A jury found defendant guilty of 11 counts of shooting at an occupied vehicle
(Pen. Code, § 246; counts 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33), 11 counts of assault with
a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 2, 5, 8, 11, 14, 17, 20, 23,
26, 29, 32), possession of a firearm and ammunition as a felon (Pen. Code, §§ 29800,
subd. (a)(1), 30305, subd. (a)(1); counts 34 & 35), and reckless driving while evading the
police (Veh. Code, § 2800.2, subd. (a); count 36). The jury also found true 11 firearm
enhancement allegations attached to the assault with a semiautomatic firearm violations.
(Pen. Code, § 12022.5, subd. (a); undesignated statutory references to this Code.) The
convictions arose from eleven instances of defendant shooting at random moving
vehicles and his later attempts to evade the police by leading them on a high-speed
pursuit and then fleeing on foot.
At sentencing, defendant emphasized his ongoing trauma, including the death of
his grandmother, separation of his family, mental health issues, and drug use during the
time of the shootings, and his lack of a serious criminal history. The trial court sentenced
defendant to 32 years in prison consisting of 26 years consecutive for assault with a
semiautomatic firearm plus five years and four months consecutive for two firearm
enhancements and eight months consecutive for reckless driving. The court imposed
concurrent two-year terms for possession of a firearm and ammunition as a felon, stayed
five-year terms imposed for the section 246 violations under section 654 (as the same acts
sentenced under section 245, subdivision (b)), and struck punishment for the remaining
nine enhancements under section 1385, subdivision (b)(1). The court awarded defendant
1,219 days of total custody credit consisting of 1,060 actual days and 159 days of conduct
credit.
In a previous appeal, this court reversed the judgment and directed the trial court
to reconsider the judgment in light of ameliorative amendments to sections 654, 1170,
and 1385. We also ordered correction of defendant’s presentence custody award to 1,200
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days, consisting of 1,061 actual days and 159 days of conduct credit. (People v. Lewis
(June 22, 2023, H047349) [nonpub. opn.].) At the resentencing hearing, defendant
emphasized the trial court’s discretion to resentence him to 23 or 26 years based on his
beneficial participation in programming, efforts to resolve the case, and mitigating factors
such as mental health issues, drug addiction, and history of childhood abuse. The
Attorney General reiterated public safety concerns, asserted defendant’s participation in
drug classes was not a meaningful mitigator, and asked the court to reimpose the original
sentence of 32 years. By the time of resentencing, defendant had been serving his prison
term for over five years.
The trial court noted defendant was described as a model inmate in prison,
highlighting his participation and leadership in substance abuse programs and his steps to
address his mental health issues. It also noted defendant’s lack of other serious criminal
history. The court summarized defendant’s history of abuse, experiences with community
violence, and learning issues, as well as his loving relationship with his two sons and
family members and strong familial and community support. Stating that defendant’s
actions were “completely out of character,” the trial court described the loss of
defendant’s grandmother, longer work hours, use of marijuana and illicit substances,
mental health issues, and separation from his partner and loss of custody of his two
children around the time of shootings. But the trial court also noted that defendant’s
actions had a real impact on multiple victims and the whole community.
The court resentenced defendant to 26 years in prison for assault with a
semiautomatic firearm (without imposing punishment for the firearm enhancements) and
a concurrent eight-month term for reckless driving. The two-year term for possession of
a firearm was stayed under section 654. The court did not disturb the concurrent two-
year term it previously imposed for possession of ammunition, nor the terms imposed and
stayed for the section 246 violations. Stating that defendant was not entitled to additional
conduct credit “because [of] the nature of the charges,” the court awarded defendant
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1,220 days of total custody credits, consisting of 1,061 days of actual confinement and
159 days of conduct credit.
According to the abstract of judgment, the court struck punishment for the two
remaining firearm enhancements. The minute order and abstract of judgment omitted one
section 246 violation (count 6), and the abstract twice stays the term imposed under
count 30.
II. DISCUSSION
A. PRESENTENCE CONDUCT CREDIT WAS PROPERLY LIMITED TO 15 PERCENT
A sentencing court must determine the exact number of days a defendant has been
in custody before sentencing, apply any applicable conduct credit, and reflect the total
presentence credit in an abstract of judgment. (§ 2900.5, subd. (d); People v. Buckhalter
(2001) 26 Cal.4th 20, 30 (Buckhalter).) Section 4019 provides the general formula for
calculating presentence conduct credit (two days of conduct credit for each two days of
actual custody). (§ 4019, subd. (f).) Presentence conduct credit for individuals who are
“convicted of” a violent felony listed in section 667.5, subdivision (c)—including the
firearm enhancement allegations found true here (§§ 12022.5, subd. (a), 667.5,
subd. (c)(8))—“shall not exceed 15 percent of the actual period of confinement.”
(§ 2933.1, subds. (a) & (c); People v. Duran (1998) 67 Cal.App.4th 267, 270.)
At the original sentencing hearing, the trial court struck punishment under
section 1385, subdivision (b)(1) for all enhancements aside from two; at resentencing, the
trial court struck punishment for the remaining two enhancements. Section 1385,
subdivision (b)(1) gives trial courts broad discretion to strike an enhancement or the
punishment for an enhancement “in the furtherance of justice.” (§ 1385, subd. (b)(1).)
Defendant argues that after the punishment for all enhancements was struck, he was no
longer “convicted of” violent felonies.
The definition of the term “convicted” in section 2933.1 is a question of statutory
interpretation, which we review de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138,
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1141.) Our fundamental task in interpreting a statute is to determine the Legislature’s
intent so as to effectuate the law’s purpose. (People v. Murphy (2001) 25 Cal.4th 136,
142.) We first examine the statute’s words and give them a plain and commonsense
meaning. (Ibid.) We consider the language of the entire scheme and related statutes,
harmonizing the terms when possible. (Ibid.) If the statutory language is susceptible of
more than one reasonable interpretation, we may look to extrinsic aids, including the
statute’s ostensible purpose, the legislative history, public policy, administrative
interpretation, and the pertinent statutory scheme. (In re M.M. (2012) 54 Cal.4th 530,
536.) We will adopt the construction that is more favorable to the defendant but still
aligns with the statutory purpose where the language of the statute is ambiguous. (In re
DeLong (2001) 93 Cal.App.4th 562, 568; People v. Manzo (2012) 53 Cal.4th 880, 889.)
Section 2933.1 does not itself define “convicted,” and the term does not have a
uniform meaning in California. (People v. Mendoza (2003) 106 Cal.App.4th 1030,
1033.) It may include the corresponding judgment or refer solely to a verdict or guilty
plea—in other words, to the adjudication of guilt. (Ibid.) Section 2933.1, subdivision (b)
states the 15 percent limitation applies regardless of under which law the defendant is
“sentenced.” (§ 2933.1, subd. (b).) We presume the Legislature did not intend the term
“convicted” to refer to a defendant’s “sentence[e]” given its use of the two terms within
the same statutory scheme. (People v. Smith (2024) 100 Cal.App.5th 741, 760.) The
court in In re Pacheco (2007) 155 Cal.App.4th 1439 (Pacheco) similarly held that
striking the punishment associated with an enhancement does not defeat the finding of
the truth of the allegation such that the defendant would still be a person “convicted of” a
violent felony and subject to the 15 percent limit under section 2933.1. (Pacheco, at
pp. 1444–1145.) “It is the conviction, and not the punishment, that is determinative.”
(Ibid.) We are persuaded by the reasoning of Pacheco.
Defendant argues Pacheco was wrongly decided because the credit limitation
under section 2933.1 is “eliminated” by striking punishment for the enhancements. The
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Pacheco court concluded that limiting custody credits is not a punishment under the law,
because custody credits are benefits earned for good conduct and participation in
qualifying programs. (Pacheco, supra, 155 Cal.App.4th at p. 1445.) Defendant relies on
Weaver v. Graham (1981) 450 U.S. 24 and Lynce v. Mathis (1997) 519 U.S. 433, two
cases that reviewed Florida statutes changing entitlement to prison conduct credits. Both
Weaver and Lynce held the respective statutes reducing entitlement to conduct credits
altered the defendant’s punishment but were enacted after the defendant committed the
offense or served the sentence and were therefore unconstitutional ex post facto laws.
(Weaver, at pp. 24, 33; Lynce, at pp. 435, 446–447.) In contrast here, defendant was
awarded the same conduct credits at sentencing and resentencing.
Defendant’s reliance on People v Burke is also unavailing. (People v. Burke
(1956) 47 Cal.2d 45.) The Burke court held that dismissing or striking an earlier
conviction under section 1385 impacts sentencing but does not erase that conviction for
purposes of future criminal proceedings. (Burke, at p. 51.) The trial court here struck
punishment for the enhancements without striking the enhancements themselves.
The Legislature enacted section 2933.1 “to protect the public by delaying the
release of prisoners convicted of violent offenses.” (In re Reeves (2005) 35 Cal.4th 765,
771.) Ensuring that the section 2933.1 credit limitation applies to those who have
committed and been convicted of violent felonies under section 667.5, subdivision (c)(8),
regardless of whether punishment was imposed, aligns with that legislative intent.
B. CUSTODY CREDITS MUST BE UPDATED
At resentencing, the trial court awarded defendant the presentence custody credits
that should have been awarded at the original sentencing hearing (1,220 days consisting
of 1,061 days of confinement credit and 159 days of conduct credit). Defendant argues
he is entitled to an additional 1,985 days for the time he was in prison between the two
sentencing hearings. The Attorney General concedes the trial court did not credit
defendant for the days spent in custody between the two hearings and proposes a limited
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remand. The Attorney General notes that any conduct credits accruing after the original
sentencing must be calculated by the California Department of Corrections and
Rehabilitation (CDCR).
Any portion of a sentence that a defendant has begun serving based on a judgment
that is modified during the imprisonment term must be credited against any sentence the
defendant later receives for the same acts. (§ 2900.1.) The sentencing court must
recalculate and, in the abstract of judgment, credit against the modified sentence the
actual days spent in custody up to that date, plus the conduct credits accrued before the
original sentencing. (People v. Sek (2022) 74 Cal.App.5th 657, 673; § 2900.5, subd. (d).)
CDCR then calculates conduct credit for prison time after the original sentencing
applying laws specific to persons serving terms in prison. (Sek, at p. 673; Buckhalter,
supra, 26 Cal.4th at pp. 23, 33.)
The Attorney General’s concession is well taken. We will remand the matter for
the limited purpose of amending the abstract of judgment to credit defendant for the days
in custody between the initial sentencing hearing and the resentencing hearing.
C. CLERICAL ERRORS IN THE MINUTE ORDER AND ABSTRACT OF JUDGMENT
MUST BE CORRECTED
Defendant argues the minute order and abstract of judgment must be corrected to
reflect the court’s oral pronouncement of judgment and the concurrent term imposed for
reckless driving. According to defendant, the minute order and abstract of judgment do
not reflect the trial court staying the term on count 6 in its original judgment, and should
also reflect a two-year concurrent term on count 36. We accept the Attorney General’s
concession on both points.
“Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) When the trial court imposed the original
sentence, it stayed under section 654 the five-year terms imposed for shooting at a
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vehicle in violation of section 246. The trial court did not disturb that part of the sentence
at resentencing. Neither the minute order nor the abstract of judgment reflects the stayed
punishment on count 6 (the abstract of judgment twice stays the term imposed on count
30) and must be corrected.
The trial court had originally imposed an eight-month consecutive sentence (one-
third the middle term) for reckless driving. After resentencing, the minute order and
abstract of judgment reflect an eight-month concurrent sentence for that violation.
Concurrent sentences are calculated by using their full terms, not the one-third middle
term formula for consecutive sentences. (People v. Quintero (2006)
135 Cal.App.4th 1152, 1156, fn. 3.) The minute order and abstract of judgment must
therefore be corrected to impose a two-year concurrent sentence on count 36.
III. DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of
recalculating defendant’s custody credit to include the days between the initial sentencing
hearing on August 2, 2019 and the resentencing hearing on January 17, 2025. The new
minute order and abstract of judgment should reflect the stayed term on count 6
(removing the term listed twice on count 30 in the abstract of judgment) and a two-year
concurrent term on count 36. The trial court shall prepare an amended abstract of
judgment reflecting the modifications and shall forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H053152
The People v. Lewis