P. v. Savidge
Filed 5/21/08 P. v. Savidge CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DEAN SAVIDGE, Defendant and Appellant. | C053825 (Super. Ct. No. 00F01294) |
Defendant Richard Dean Savidge was convicted by a jury of three counts of aggravated assault (Pen. Code, 269, subd. (a)(4); undesignated statutory references are to this code), and seven of 10 counts of forcible child molestation ( 288, subd. (b)(1)), and sentenced to state prison for three consecutive indeterminate sentences and seven fully consecutive determinate sentences pursuant to section 667.6, subdivision (d). Affirming the judgment on appeal, this court remanded for resentencing only, pursuant to which defendant was resentenced to two consecutive indeterminate terms each for counts one and two, plus a consecutive determinate term of 32 years.
Defendant contends, on appeal, that imposition of fully consecutive terms pursuant to section 667.6 and consecutive terms under the determinate sentencing law violated Apprendi,[1]Blakely[2]and Cunningham.[3] He also contends the trial court erred when it failed to recalculate actual time served prior to resentencing. We affirm the judgment and direct the trial court to recalculate defendants custody credits earned prior to resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Based upon allegations by the victim, defendants child, of numerous incidents of molestation by defendant, he was arrested and charged with 13 counts of sexual assault related crimes alleged to have occurred between August 1, 1993, and January 3, 2000, as follows: three counts of aggravated sexual assault in violation of section 269, subdivision (a)(4) (counts one through three), and 10 counts of forcible child molestation in violation of section 288, subdivision (b)(1) (counts four through thirteen).
At trial, the jury convicted defendant of counts one through three and seven of the 10 molestation counts. The trial court originally sentenced defendant to state prison for three consecutive indeterminate sentences and seven fully consecutive determinate sentences pursuant to section 667.6, subdivision (d).
Defendant appealed on a number of grounds, including a claim that the trial court erred in concluding consecutive sentences were mandatory for the section 288 convictions.
On appeal, this court reduced one of the section 269 convictions to the lesser included offense of violating section 288a, subdivision (c)(1), struck an amendment to the dates alleged in count three and amended the range of dates alleged in counts four, eight, ten and thirteen from April 21, 1994, to January 3, 2000. This court affirmed the convictions as amended and remanded the matter to the trial court for resentencing.
On remand, the trial court found counts five, eight, ten and thirteen to be mandatory full consecutive sentences under section 667.6, subdivision (d). In so doing, it noted that count five certainly, is a different occasion from all other counts except [c]ount [f]our, so it does qualify for mandatory full term consecutive term, and further noted that count eight is, once again, a different instance, different occasion than all the others except the two counts, [s]ix and [s]even, which were on the same transaction. So [c]ount [e]ight qualifies as a full term consecutive, which is what it was before but it now continues. The court made no change to the sentence as to counts ten and thirteen, noting that the Appellate Court has not suggested any question about whether they qualify under 667.6(d).
The trial court resentenced defendant to two consecutive indeterminate terms each for counts one and two, and a determinate term of 32 years as to the remaining counts (comprised of a consecutive six-year term for count three, a consecutive one-third term of two years for count seven, and four fully consecutive six-year terms for counts five, eight, ten and thirteen). Two concurrent six-year terms were also imposed for counts four and six.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Consecutive Sentences
Defendant contends the trial courts imposition of fully consecutive sentences under section 667.6, subdivision (d) violates the legal doctrine set forth in Apprendi, Blakely and Cunningham because that sentencing choice must be based on the additional judicial finding that the offenses were committed on separate occasions. Defendant as contends imposition of consecutive sentences under section 1170.1 violates Apprendi, Blakely and Cunningham. Defendant is wrong on both counts, as imposition of a consecutive sentence under either section does not implicate Apprendi, Blakely or Cunningham.
After imposing sentence on counts one and two, and designating them as the principal terms ( 1170.1, subd. (a)), the trial court found the offense charged in count five was committed on a separate occasion from all other counts except count four, and that the offense charged in count eight was committed on a separate occasion from all other counts except counts six and seven, and imposed full term consecutive sentences on counts five and eight under section 667.6, subdivision (d). Because the original sentence which found counts ten and thirteen were fully consecutive pursuant to section 667.6, subdivision (d) was not modified or questioned by this courts opinion following defendants first appeal, the trial court did not disturb its prior finding that section 667.6, subdivision (d) applied to those counts.
Section 667.6, subdivision (d) provides in pertinent part that [a] full, separate, and consecutive term shall be imposed for each violation of certain sexual offenses including section 288 if the crimes involve separate victims or involve the same victim on separate occasions. The subdivision further provides that [i]n determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected the claim that imposition of consecutive sentences pursuant to section 669 violates Apprendi and its progeny. The court reasoned that the underlying rationale of those cases is inapplicable to the question whether the sentences on two or more offenses should be served consecutively or concurrently. Because a sentence enhancement is treated as the functional equivalent of a greater crime, the factual predicate of the enhancement must be treated as an element of the greater offense and is therefore subject to the defendants right to a jury trial on all elements. (Id. at pp. 1262-1263.) No such danger is created by a statute that permits judges to decide whether to impose consecutive sentences without jury factfinding. The jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. (Id. at p. 1263.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the court concluded that Cunningham did not undermine its holding in Black I and affirmed that holding that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. (41 Cal.4th at pp. 821, 823.)
This same conclusion applies equally to consecutive sentences imposed under section 667.6 because, like consecutive sentences under section 669, the factual predicate that makes a defendant eligible for full term consecutive sentences under section 667.6 is found by the jury. Subdivision (c) of section 667.6 grants the trial court discretion to impose a full term consecutive sentence in lieu of the term provided in section 1170.1 for each violation of a predicate offense if the crimes involve the same victim on the same occasion. ( 667.6, subd. (c).) By contrast, subdivision (d) of section 667.6 makes a full term consecutive sentence mandatory for each violation of an offense specified in subdivision (e) if the crimes involve . . . the same victim on separate occasions.
As the court in People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231 found, imposition of a full term consecutive sentence under section 667.6, subdivision (d) does not violate Apprendi/Blakely. Because imposition of such a sentence is discretionary under subdivision (c) of the section based solely upon the jurys verdict finding a defendant guilty of two predicate offenses against the same victim, mandatory imposition of the maximum possible sentence does not constitute an increase in the maximum possible sentence. (Id. at pp. 1230-1231.)
Since defendant was convicted of committing two predicate offenses, he was eligible for a full term consecutive sentence under the more stringent provisions of section 667.6. We therefore hold that imposition of the mandatory full term consecutive sentence on counts five, eight, ten and thirteen ( 667.6, subd. (d)) did not violate defendants constitutional rights to due process and a jury trial.
II
Calculation of Custody Credits
Defendant contends, and the People agree, that he is entitled to credit for actual days in custody between imposition of his original sentence and the trial courts resentencing. We agree.
When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence. ( 2900.1) (People v. Buckhalter (2001) 26 Cal.4th 20, 23 (Buckhalter), italics in original.)
Defendant was originally sentenced on June 29, 2001, at which time he was awarded 505 actual days of credit, plus 76 days of local conduct credit ( 2933.1), for a total of 581 days of custody credits. Thereafter, he was remanded into custody and began serving his sentence.
Defendant was resentenced on September 28, 2006, at which time the trial court determined that custody credits did not need to be recalculated, and ordered that the time credits and the sentencing is to be calculated Nunc Pro Tunc to June the 29th of 2001 when the original sentence was imposed. Consistent with that determination, the abstract of judgment following resentencing reflects an award of 581 days of total credits. The trial courts failure to calculate the actual number of days defendant spent in custody prior to resentencing was error.
Following imposition of his original sentence and during the period of incarceration prior to resentencing, defendant was eligible to receive credit for actual time served as determined by the trial court, and for worktime credits as determined by the agency to which the defendant is committed. ( 2900.5, 2933; Buckhalter, supra, 26 Cal.4th at p. 31.) While the court was correct in not attributing to defendant additional good behavior credits as a presentence detainee for time spent in custody during the period between the original sentencing and resentencing, it erred insofar as it failed to recalculate and credit the actual time defendant had served on his sentence prior to the modification. (Buckhalter, supra, 26 Cal.4th at p. 37.)
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court for the limited purpose of recalculating the actual time defendant served on his sentence prior to modification of that sentence on September 28, 2006. The trial court shall prepare an amended abstract of judgment reflecting defendants true custody credits and shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
NICHOLSON , J.
We concur:
DAVIS, Acting P.J.
HULL, J.
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[1]Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi).
[2]Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
[3]Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
