P. v.
Filed 3/25/13 P. v. Redmond CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN LEE REDMOND,
Defendant and Appellant.
B241591
(Los Angeles
County
Super. Ct.
No. TA109095)
APPEAL
from a judgment of the Superior Court
of
County. Kelvin D.
Filer, Judge. Affirmed in part and
reversed in part with directions.
James
Koester, 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, Scott A. Taryle,
Supervising Deputy Attorney General, Kimberley
J. Baker-Guillemet, Deputy Attorney General, for Plaintiff and Respondent.
_________________________________
Defendant
Kevin Lee Redmond appeals from the judgment entered following retrial of a
prior prison term enhancement allegation
and resentencing. Defendant contends the
trial court improperly imposed the prior prison term enhancement twice and
erred in its recalculation of his credits.
We agree that the trial court erroneously awarded defendant conduct
credits for the time he spent in prison prior to his resentencing, but
otherwise affirm.
BACKGROUND
Defendant
was convicted by a jury of possessing cocaine base for sale and selling cocaine
base and sentenced to five years in prison, including one year for a prior
prison term enhancement under Penal Code section 667.5, subdivision (b). (Undesignated statutory references are to the
Penal Code.) On his appeal in case No.
B226809, defendant challenged, inter alia, the adequacy of his admission of the
prior prison term enhancement allegation.
We concluded that defendant’s admission was insufficient, reversed the
trial court’s true finding on the enhancement allegation, and remanded for
further proceedings. We expressly stated
that the prosecutor would be permitted to retry the enhancement allegation.
Upon
remand, a court trial was conducted regarding the prior prison term enhancement
allegation. The prosecutor introduced
certified records from the Department of Corrections and Rehabilitation
pursuant to section 969b to prove the enhancement allegation. The court found the allegation true and
resentenced defendant to five years in prison, including one year for the prior
prison term enhancement, for count 1 (possession of cocaine base for sale) and
a concurrent term of four years for count 2 (selling cocaine base). The court stated, “I’m going to impose the
one year only one time. So no additional
time is ordered as to count 2.â€
Nonetheless, the clerk’s minute order and abstract of judgment indicate
that the court imposed, but stayed, the prior prison term enhancement for count
2.
DISCUSSION
of count 2
Defendant
contends, and the Attorney General agrees, that the trial court erred by
imposing the prior prison term enhancement for both counts 1 and 2. But, as noted, the trial court expressly
declined to impose the enhancement on count 2.
The clerk erroneously included the enhancement in the minute order and
abstract of judgment. Accordingly, we
need not strike the enhancement from count 2 as the parties urge, but will
merely direct the clerk to issue an amended abstract of judgment and minute
order.
of credits
Upon
resentencing, the trial court recalculated defendant’s credits as 699 days for
actual custody and 349 days of conduct credits, for a total of 1,048 days.
Defendant contends that the
trial court erroneously awarded him credits under Penal Code section 4019 for
the entire time he had served, both in local custody and in prison. The Attorney General argues the record is
insufficient to determine that the trial court erred.
To aid in
the resolution of this issue, after notice to the parties and an opportunity to
respond, we take judicial notice of the clerk’s transcript filed in this court
as part of the appellate record in defendant’s prior appeal, case No.
B226809. (Evid. Code, §§ 452, subd. (d),
459.) When defendant was originally
sentenced on July 14, 2010,
he was awarded 16 days for actual presentence custody and 16 days for local
conduct credits under section 4019.
Upon remand
for resentencing, the trial court was required to recalculate defendant’s
resentencing, including the time spent in the custody of the Department of
Corrections and Rehabilitation, but it should not have recalculated his conduct
credits. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 29, 33–34.) The court’s award of 349 days of conduct
credits demonstrates that it recalculated defendant’s conduct credits. Absent such a recalculation, the trial court
would have awarded defendant the same 16 days of conduct credits that it
awarded him at the original sentencing hearing in 2010. Thus, the trial court’s error is apparent
from the appellate record.
Defendant
should have been awarded 16 days for presentence conduct credit plus actual
custody credits equal to the sum of the 16 days of presentence local custody
awarded at the time of the original sentencing plus actual custody credit for
the period from July 14, 2010
to May 14, 2012. Defendant argues he was entitled to 681 days
of actual custody credit for that period, but we calculate the period as just
670 days. We direct the trial court to
calculate the correct actual custody
credits upon remand.
Although
defendant had been paroled, as noted in his reply brief, the miscalculation of
his credits is not a moot issue because it will affect the duration of his
parole. (In re Carter (1988) 199 Cal.App.3d 271, 273;
1301–1303.)
DISPOSITION
The cause is remanded for the trial
court to recalculate defendant’s actual custody credits as of the date of
resentencing, awarding him the recalculated actual custody credits plus the 16
days for local conduct credit awarded at the time defendant was originally
sentenced. The court is directed to
issue an amended abstract of judgment and to correct its minute order of May 14, 2012 to reflect (1) the
correct credits award, and (2) that the trial court did not impose a Penal Code
section 667.5, subdivision (b) enhancement for count 2. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We
concur:
CHANEY, J.
JOHNSON,
J.
