Filed 9/11/26 P. v. Bustamante CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E086785
v. (Super.Ct.No. INF064492)
MIGUEL ADOLFO BUSTAMANTE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed as modified with directions.
Cynthia M. Jones, 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, Eric A. Swenson and Christopher
P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Miguel Adolfo Bustamante appeals following a
resentencing hearing upon remand by this court from his direct appeal in case
No. E082668.1 (Bustamante, supra, E082668.) In this appeal, defendant contends
(1) the abstract of judgment must be corrected to accurately reflect his conviction on
count 9 was for second degree burglary; (2) the abstract of judgment must be corrected to
accurately reflect his sentence on count 5; and (3) the trial court erred in failing to award
presentence custody credits. The People concede these errors. We agree with the parties.
The judgment is modified to include the award of custody credits already calculated by
the probation department and the trial court shall amend the abstracts of judgment to
accurately reflect the judgment.
1 This court affirmed the original judgment in February 2014 in case
No. E053711. (People v. Replogle, et al. (Feb. 25, 2014, E053711) [nonpub. opn.].)
Defendant later secured state habeas relief in the superior court, which led to a retrial and
reconviction. (See People v. Bustamante (Apr. 15, 2025, E082668) [nonpub. opn.]
(Bustamante).)
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II.
PROCEDURAL BACKGROUND2
In June 2023, defendant was convicted of first degree murder with financial gain
and lying in wait special circumstance findings (Pen. Code,3 §§ 187, subd. (a), 190.2,
subds. (a)(1), (15)); conspiracy (§ 182); two counts of first degree residential burglary
(§ 459); grand theft (§ 487, subd. (a)); identity theft (§ 530.5, subd. (a)); offering a false
or forged instrument for filing (§ 115); and receiving stolen property (§ 496, subd. (a)).
The jury further found true an aggravated financial crimes allegation (§ 186.11,
subd. (a)(3)).
On November 17, 2023, after the trial court denied defendant’s motion for new
trial, the court sentenced defendant to life without the possibility of parole for the first
degree special circumstance murder, and eight years for the remaining counts.
Defendant subsequently appealed. On April 15, 2025, in a nonpublished opinion,
we reduced defendant’s first degree burglary conviction in count 9 to second degree
burglary, directed his sentences for conspiracy in count 2 and first degree burglary in
count 3 to be stayed pursuant to section 654, vacated his sentence, and remanded the
matter for resentencing with directions. (Bustamante, supra, E082668.)
The resentencing hearing on remand was held on August 22, 2025. In compliance
with this court’s opinion, the trial court reduced defendant’s conviction on count 9 from
2 The factual background is not relevant to the issues raised on appeal and thus we
will not recount them.
3 All future statutory references are to the Penal Code unless otherwise stated.
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first degree burglary to second degree burglary and stayed the sentences on counts 2
and 3. The court then sentenced defendant to a total sentence of life without the
possibility of parole plus four years. The determinate sentence consisted of a middle term
of two years on count 5, plus eight months (one-third middle terms) each on counts 7, 8,
and 9. Defendant timely appealed from the resentencing hearing.
III.
DISCUSSION
A. Correction of Abstract of Judgment
Defendant contends the abstract of judgment should be corrected to reflect that the
conviction on count 9 was for second degree burglary rather than first degree burglary.
He also claims the abstract of judgment should be corrected to accurately reflect the
sentence on count 5 for grand theft. The People concede the abstract of judgment should
be corrected accordingly. We agree with the parties.
In defendant’s prior direct appeal, we ordered count 9 be reduced to second degree
burglary. (Bustamante, supra, E082668.) The resentencing court recognized the
reduction and sentenced defendant accordingly. The minute order correctly reflected the
reduction. However, the amended determinate abstract of judgment still describes the
conviction as “1st Burglary.”
In addition, after redesignating the conviction on count 9 as second degree
burglary instead of first degree burglary, the trial court selected the conviction on count 5
for grand theft as the new principal term for the determinate sentences and imposed a full
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midterm sentence of two years. The minute order correctly reflects the sentence imposed.
However, the abstract of judgment incorrectly identifies the sentence on count 5 for grand
theft as being one-third the midterm.
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.
Mitchell (2001) 26 Cal.4th 181, 185-186 (Mitchell); People v. Mesa (1975) 14 Cal.3d
466, 471.) An appellate court has the authority to correct clerical errors. (Mitchell,
supra, 26 Cal.4th at pp. 186-187 [appellate court may correct clerical errors on its own
motion or upon application of the parties]; People v. Zackery (2007) 147 Cal.App.4th
380, 394 [same].)
The trial court is directed to correct the determinate abstract of judgment to reflect
defendant was convicted of second degree burglary on count 9 and that defendant’s
sentence on count 5 for grand theft is a consecutive full term of two years. (Mitchell,
supra, 26 Cal.4th at 186-187.)
B. Custody Credits
Defendant asserts the trial court erred in failing to award presentence custody
credits and requests the matter be remanded. The People agree defendant is entitled to
custody credits and that the resentencing court did not actually award custody credits to
defendant. However, the People argue a remand is not necessary because the probation
department had calculated the credits to which defendant is entitled and there does not
appear to be any dispute as to the calculation.
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At the sentencing hearing, the trial court noted it needed to award actual custody
credits to defendant but did not have the information available to calculate the credits.
The court accepted a waiver from defendant to refer the matter to the probation
department for an updated credit memorandum, after which the court would amend the
abstract to ensure defendant received custody credits. The court ordered probation to
return a credits summary by August 29, 2025. On August 25, 2025, the probation
department filed its custody credits memorandum, reflecting defendant was entitled to a
total of 6,072 days of custody credit. The amended abstracts of judgment were prepared
on September 2, 2025. However, neither reflected defendant’s presentence custody
credits.
A trial court’s erroneous failure to award presentence custody credits is not waived
by failure to object at trial because “the calculation of credits is not discretionary and
there are no ‘choices.’ ” (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1138.) An
incorrect award of presentence custody credits is an unauthorized sentence which may be
corrected at any time. (People v. Gisbert (2012) 205 Cal.App.4th 277, 282.)
Section 1237.1 provides: “No appeal shall be taken by the defendant from a
judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court.” Section 1237.1, however,
“does not require a motion be filed in the trial court as a precondition to litigating the
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amount of presentence credits when there are other issues raised on direct appeal.”
(People v. Acosta (1996) 48 Cal.App.4th 411, 420; see People v. Mendez (1999) 19
Cal.4th 1084, 1101.) There may be situations, like this case, where an appellate court
“may simply resolve the custody credits issue in the interests of economy.” (People v.
Jones (2000) 82 Cal.App.4th 485, 493 (Jones); see People v. Sylvester (1997) 58
Cal.App.4th 1493, 1496, fn 3.)
Here, it does not appear that a remand is necessary to correct the trial court’s
erroneous failure to grant the credits. The probation department has calculated the credits
to which defendant is entitled and there does not appear to be any dispute as to that
calculation. In the interest of judicial economy, we will order that the judgment be
modified to grant the credits calculated by the probation department and direct the trial
court to amend the abstracts of judgment accordingly. (Jones, supra, 82 Cal.App.4th at
p. 493.)
IV.
DISPOSITION
The judgment is modified to reflect that defendant is awarded 6,072 days of
presentence custody credits. In addition, the trial court is directed to correct the
determinate abstract of judgment to reflect defendant was convicted of second degree
burglary on count 9 and that defendant’s sentence on count 5 for grand theft is a
consecutive full term of two years. The clerk of the superior court is ordered to prepare
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amended abstracts of judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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