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The People v. Angel Moscoro Cortina


December 29, 2010


(Super.Ct.No. ICR20832) APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs, Judge. Affirmed with directions.

The opinion of the court was delivered by: Richli J.

P. v. Cortina



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant Angel M. Cortina was convicted in 1995 of carjacking and kidnapping. For 15 years defendant appealed his case in the state and federal courts. On May 15, 2007, defendant's federal petition for writ of habeas corpus was granted, and the State of California was directed to give him the opportunity to plead guilty on the terms of a plea offered midtrial in 1995 and that he receive a sentence of no more than 24 years. On June 28, 2007, defendant entered his plea and was sentenced. At the time of his sentence, he was granted presentence custody credits for the entire time he spent in custody since his arrest. After sentencing, the California Department of Corrections and Rehabilitation (CDCR) wrote a letter to the trial court advising it that the custody credits had been miscalculated. Without defendant present, the trial court recalculated the credits.

Defendant appeals the trial court's recalculation of custody credits on the following grounds:

1. He was denied his state statutory and federal constitutional right to be personally present when the trial court recalculated and substantially reduced his custody credits.

2. He is entitled to Penal Code section 4019 presentence custody credits from the date of his arrest through the date he was resentenced in 2007 based on the federal court reversal of his judgment.

3. Based on the law of the case doctrine, he is entitled to the presentence custody credits from the date of his arrest through the date of resentencing in 2007.

4. His due process rights were violated when the trial court reduced his previously awarded Penal Code section 4019 conduct credits without "fair warning."

5. The abstract of judgment should be modified.

We asked the parties to submit supplemental briefing on whether this appeal should be dismissed due to defendant's failure to first file for correction of his presentence custody credits pursuant to Penal Code section 1237.1.

We have chosen to exercise our discretion to hear this case and order the credits and abstract of judgment modified.



Shortly after noon on September 5, 1994, a mother was driving her son home from music lessons and was stopped at a stop sign when defendant approached their car and asked for a ride. The mother refused, and defendant pulled a gun, got into the back seat, and commandeered the car while pointing his gun at the mother and threatening to kill her. After they had traveled for a little over two and a half miles, defendant ordered the mother and son to get out of the car, which they did. A short time later, defendant abandoned the car at another location. Eventually, an officer approached defendant, and as he did, defendant discarded the gun he had in his waistband. In the car, officers found a man's shirt, which defendant had removed during the offenses, and a blue telephone/address book bearing defendant's name. While being booked, defendant said he did not know his address, but it was inside his blue address book. Defendant's fingerprint was found on the outside driver's window of the mother's car. After his arrest, defendant twice said that he "took the woman's car because [he] needed the motor."



Defendant was convicted of carjacking (Pen. Code, § 215)*fn2 and two counts of kidnapping (§ 207, subd. (a)), during which he used a handgun (§ 12022.5, subd. (a)). He was also convicted of being a felon in possession of a handgun (§ 12021) and admitted he had suffered a prior conviction for a serious or violent offense (§ 667, subds (c), (e)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced on June 15, 1995, as a second strike offender, to 59 years. Defendant was originally granted 416 days of custody credit, consisting of 278 days of actual time and 138 days of local conduct credit.

We affirmed the judgment on defendant's first direct appeal on September 26, 1997. However, we directed the trial court to amend the abstract of judgment to reflect a lesser sentence on the gun-use enhancements. The trial court amended the abstract of judgment to reflect the new sentence of 49 years 8 months. The custody credits remained at 416 days.

The California Supreme Court granted review on a different sentencing issue, and we issued a new opinion on remand on October 22, 1998. In that opinion, we remanded the case to the trial court for resentencing.

After remand, defendant again appealed his sentence. On December 18, 2000, we agreed that defendant had been improperly sentenced. We ordered that the abstract of judgment be amended to reflect a sentence of 49 years. We also directed the trial court to recalculate defendant's time-served credits to include the time that he spent in custody on his original sentence and the resentencing. Citing People v. Honea (1997) 57 Cal.App.4th 842, 845-846 (Honea), and People v. Chew (1985) 172 Cal.App.3d 45, 50-51 (Chew), we also ordered that he be granted section 4019 credits (although he had a serious or violent felony conviction that would limit the credits under section 2933.1, that section became effective after he committed his offenses) including the time between the original sentencing and the resentencing.

Upon remand, the probation department submitted an estimation of credits. It calculated the credits as 284 days from the time of his arrest (September 5, 1994) until he was originally sentenced on June 15, 1995. He had spent 1,706 days in state prison. Defendant was returned to local custody on February 16, 2000, and resentenced on April 21, 2000, for a total of 66 days. The time of his appeal (April 22, 2000) to resentencing on February 16, 2001, was a total of 301 days. The total credits were listed as 2,357 actual local time, with section 4019 time as 1,178 days, for a total credit of 3,535 days. That estimate was later revised. Hence, defendant was given 2,371 days of local time and 1,184 days of section 4019 time, for a total time of 3,555 days. An amended abstract of judgment was filed on February 18, 2004, reflecting these credits.

Thereafter, defendant filed two petitions for writ of habeas corpus in the trial court. Both petitions were denied.

Defendant filed a petition for writ of habeas corpus in the Central District of the United States District Court. An evidentiary hearing was conducted on the issue of whether defendant had been properly advised during his trial of his potential exposure and whether he would have accepted the plea bargain offering him a sentence of 24 years had he been properly advised.

The district court concluded that defendant had made an adequate showing that he would have accepted the plea deal had he been adequately informed. However, the court determined that granting a new trial was not an appropriate remedy. Rather, it determined the appropriate remedy was to give the People the option of releasing defendant within 90 days or allowing defendant to accept the 24-year sentence in the original plea offer. Judgment on the habeas petition was entered on May 15, 2007.

Defendant appeared in the trial court on June 28, 2007. He intended to agree to the plea but was concerned as to the calculation of custody credits. He stated he wanted to be present for the calculation of custody credits. The trial court intended to have the probation department prepare a credit memorandum. If, upon receiving the memorandum, defendant was concerned with the calculation, the matter could be heard. The parties agreed to a future hearing on the credits.

Thereafter, defendant pleaded guilty to a violation of section 215, the carjacking, that he personally used a handgun during the commission of the crime (§ 12022.5, subd. (a)), and that he had suffered a prior serious or violent felony conviction (§ 667, subds. (c) and (e)(1)). Defendant agreed that he would receive a sentence of no more than 24 years. Further, defendant was asked, "At this time, sir, do you waive your right to appeal from any aspect of this judgment?," to which he responded, "Yes." Defendant was then sentenced to 24 years, and the remaining counts and allegations were dismissed.

A memorandum was prepared by the probation department. It calculated defendant's actual custody time as 4,677 days, his section 4019 conduct credits as 2,338, for a total credit of 7,015. The probation department noted, "The defendant has been in continuous custody since his arrest on 09-05-94. His original sentence was set aside and he was re-sentenced to State Prison on 06-28-07." Hence, the calculation was based on the probation department's assumption that the entire time since his arrest was presentence custody time.

A hearing was held on July 5, 2007. Defendant submitted on the probation department's memorandum. The People took the position that defendant should only be awarded the actual time and that the CDCR was in the best position to make any further credit calculations. The trial court found, " . . . I am going to adopt the findings as set forth in the memorandum provided to me, it is dated July 5, 2007, with the understanding that CDC[R] be directed to make their own analysis of what's here just simply for verification purposes." The trial court noted that it could be addressed later if there was a problem with the calculation by the CDCR. It was also ordered that the CDCR make its own calculation of the credits and to notify the court, the People, and defendant's counsel. An abstract of judgment was prepared and filed on July 9, 2007, stating the total days were 7,015, with the actual time as 4,677 days, and the conduct credits were 2,338 days.

On May 4, 2009, the probation department filed a memorandum with the trial court. According to the memorandum, the probation officer had reviewed Honea and Chew regarding defendant's credits. According to that authority, the trial court was only to award the actual time spent in prison and let the CDCR award conduct credits. Based on its calculation, defendant had spent 370 days in local custody, which included time he spent prior to his original sentencing and while being resentenced. Based on those 370 days, he would receive 184 days of section 4019 conduct credit for a total of 554 days. It also noted that defendant had spent 4,303 days in prison.

On June 16, 2009, the trial court received a letter from the CDCR. The CDCR was concerned the calculation of custody credits was erroneous. It believed the appropriate amount to be awarded by the trial court was what was granted at the original sentencing: 278 actual days of local custody credit plus 138 days of section 4019 conduct credit, for a total of 416 days. The CDCR would apply the appropriate amount of behavioral credits.

The matter was called for hearing on April 30, 2009. Defendant was not present but counsel was present representing him. Defendant's counsel believed the letter from the CDCR was asking for two things: (1) the actual time that defendant spent in prison from June 15, 1995, and his resentencing on June 28, 2007, and (2) the proper local credit without section 4019 credits. The CDCR would determine the appropriate behavioral credit while in prison custody. The trial court adopted the credits stated in the probation department memorandum filed on May 4, 2009. A new abstract of judgment was filed on June 16, 2009. Defendant was sentenced as a second striker to 18 years on the carjacking, plus 6 years for the weapons use enhancement, for a total of 24 years. It reflected that defendant had earned 370 actual custody credits, 184 days of conduct credit pursuant to section 4019, for a total of 554 days. No prison time was notated.

On June 29, 2009, defendant filed an appeal based on error in the calculation of custody credits and his absence from the April 30, 2009 hearing.



Although not raised by the People, we feel compelled to address whether defendant can bring the instant appeal. Defendant entered his guilty plea waiving his right to "appeal from any aspect of this judgment[.]"

A defendant may waive his right to appeal as part of a plea bargain. (People v. Mumm (2002) 98 Cal.App.4th 812, 815.) Where the waiver of appellate rights is "found in the context of a plea bargain, the scope of the waiver is approached like a question of contract interpretation -- to what did the parties expressly or by reasonable implication agree? [Citations.]" (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) "[C]courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties' reasonable expectations." (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.) "[A] waiver of appeal rights does not apply to '"possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (Mumm, at p. 815.)

Here, defendant had specifically expressed his concern, prior to entering his plea, regarding the conduct credits, and the matter was to be heard at a later date. Moreover, there is no written plea agreement in the record. Based on this, it does not appear that it was within the contemplation and knowledge of defendant at the time of his waiver that there could be a potential error in the calculation of custody and/or conduct credits. Therefore, defendant's general waiver does not preclude an appellate challenge to the calculation of his custody credits. Hence, we find that his waiver of his appellate rights does not foreclose the instant appeal.

In addition, we asked the parties to provide supplemental briefing as to whether the appeal should be dismissed because after the final recalculation of custody credits defendant never filed a motion pursuant to section 1237.1 in the trial court contesting the calculation on the grounds raised in the instant appeal. Not surprisingly, the People contend the appeal should be dismissed as the issues raised all pertain to the calculation of custody credits, which must be first resolved in the trial court. Defendant responds that this case involves more than just a miscalculation of custody credits and can be appropriately raised for the first time on appeal.*fn3

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." (See People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12; People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.)

"There is no doubt however that the Legislature intended to require dismissal of an appeal where the only issue posited by the defendant involves an issue of presentence credits and the question was not preserved in the trial court." (People v. Acosta, supra, 48 Cal.App.4th at p. 425-426.)

We agree with the People that the issues raised by defendant essentially all involve the miscalculation of custody credits and that defendant should have first filed a motion in the trial court pursuant to section 1237.1 raising the issues prior to filing the instant appeal. Such failure subjects the appeal to dismissal.

However, this case presents a unique circumstance in that the appeals have been ongoing for 15 years. Moreover, the parties do not disagree on the dates of custody. As such, in an effort to finally dispose of this case, in the interest of judicial economy, and because the People failed to raise the issue in the first instance, we exercise our discretion to hear the appeal.



Defendant first contends that his Sixth Amendment and state statutory rights to be present during a critical stage of trial were abridged by his absence from the April 30, 2009, hearing during which the trial court recalculated his custody credits.

"Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution . . . ." (People v. Cole (2004) 33 Cal.4th 1158, 1230 (Cole).) The Sixth Amendment's confrontation clause focuses on the right to be personally present if the defendant's "'appearance is necessary to prevent "interference with [his] opportunity for effective cross-examination."' [Citation.]" (Cole, at p. 1231, quoting People v. Waidla (2000) 22 Cal.4th 690, 741 (Waidla).) The focus of the Fourteenth Amendment's due process clause is different: "[A] criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a 'stage . . . that is critical to [the] outcome' and 'his presence would contribute to the fairness of the procedure.' [Citation.]" (Waidla, at p. 742.)

As the California Supreme Court has held, article I, section 15 of the California Constitution does not confer on criminal defendants the right to be personally present either in chambers or at bench discussions, which occur outside of the jury's presence on questions of law or other matters, where their presence does not bear a reasonably substantial relation to the fullness of their opportunity to defend against the charge. (Cole, supra, 33 Cal.4th at p. 1231; see also Waidla, supra, 22 Cal.4th at p. 742; People v. Ochoa (2001) 26 Cal.4th 398, 433-436,*fn4 [absence from bench discussions during voir dire]; People v. Holt (1997) 15 Cal.4th 619, 707 & fn. 29 [absence from various bench and in camera discussions].) "Thus a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant's presence would not contribute to the fairness of the proceeding." (People v. Perry (2006) 38 Cal.4th 302, 312.)

Further, under section 977, subdivision (b)(1), a defendant who is charged with a felony is entitled to be present "at the time of imposition of sentence." At all other proceedings, the defendant may execute a waiver of his presence. (§ 977, subd. (b)(1).)

Applying the de novo standard of review (Cole, supra, 33 Cal.4th at p. 1230), we have examined the proceeding challenged by defendant and find no violation of his right to be personally present at the April 30, 2009, hearing. In the challenged proceeding, his personal presence was not necessary to effectuate the Sixth Amendment's opportunity for a full and effective cross-examination. (Cole, at p. 1231.) Nor would his personal presence have contributed to the fairness of the procedure for purposes of the Fourteenth Amendment's due process clause. (Cole, at p. 1231.) Additionally, his personal presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge, for purposes of article I, section 15 of the California Constitution. (Cole, at pp. 1231-1232.)

The hearing from which defendant was excluded in this case involved legal questions of the type that other courts have routinely held do not require defendant's personal presence. (See, e.g., People v. Morris (1991) 53 Cal.3d 152, 210, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; United States v. Sherman (9th Cir.1987) 821 F.2d 1337, 1339, and cases cited therein [no constitutional or statutory right to attend jury instruction conference].) We find it unlikely that defendant, a layperson, would have contributed in any way to the proceedings regarding the mandatory custody credits. Defendant claims, in essence, that if he had been present, and if his counsel had been better prepared, he could have challenged the court's ruling or counsel could have sought a continuance.*fn5 A similar claim could be made about any occasion involving legal issues. Nothing in this record suggests that defendant's or his counsel's presence at the hearing on the issue of mandatory custody credits would have made any difference. Under the circumstances of this case, the issue of the number of custody credits came down to the legal issue.

Defendant's reliance on People v. Rodriguez (1998) 17 Cal.4th 253 is misplaced. Rodriguez involved proceedings in the trial court following a limited remand pursuant to section 1385 and whether the trial court should exercise its discretion in the presence of defendant and his counsel. (Rodriquez, at pp. 255-258.) The Rodriguez court stated that even when a defendant is not resentenced, section 1260, which sets out the permissible dispositions of a cause on appeal, alone "provides sufficient authority to require defendant's presence on remand" because it would be "manifestly unfair" to permit the trial court to decide how to exercise its discretion without giving the defendant an opportunity to address the issue. (Rodriguez, at p. 260.) Therefore, the court concluded: "On remand, the superior court should conduct a hearing in the presence of defendant, his counsel, and the People to determine whether to dismiss one or more prior felony conviction findings pursuant to section 1385." (Ibid.)

By contrast, there was no discretionary power of the trial court involved here. At the April 30, 2009, hearing, the court merely clarified its findings and adopted the probation department's memorandum. The amount of custody credits to be awarded was mandatory, and there was no discretion involved. Accordingly, neither defendant nor prepared counsel's presence was necessary under the circumstances of this case. Although, as we find, post, the trial court's calculation was erroneous, neither defendant nor counsel would have affected the calculation.

Even if we were to conclude that defendant was absent from a critical stage of the proceeding, under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 17 L.Ed.2d 705]. (People v. Davis (2005) 36 Cal.4th 510, 532-533.) Further, if we were to assume his statutory right to be present under section 977, was implicated, reversal is only necessary if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)

Since we correct the custody credits to conform with current law, as set forth, post, defendant cannot show prejudice. Such correction is mandatory. We are bound (as was the trial court) by California Supreme Court precedent on this issue. There was no discretion that could be exercised by the trial court (or this court on appeal) had defendant been present at the hearing, and the result would be the same as the finding here on appeal. Hence, he cannot show prejudice as the custody credits could only be awarded in accordance with the law and his presence could not have impacted that calculation.



Defendant's next three claims are all interrelated in arguing that the trial court erred in reducing his custody credits and the proper calculation of credits. We will discuss them together.

"The Penal Code provides that inmates in county jails and state prisons may have their sentences reduced as a reward for their conduct . . . . The rate at which inmates accrue credit depends on numerous factors, including whether the confinement is presentence or post-sentence." (In re Martinez (2003) 30 Cal.4th 29, 31 (Martinez).) "There are, however, 'separate and independent credit schemes for presentence and post-sentence custody.' [Citation.]" (People v. Donan (2004) 117 Cal.App.4th 784, 789.)

When defendant committed his crime, as well as when defendant was resentenced on June 28, 2007, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, added by stats. 1982, ch. 1234, § 7, p. 4553.)*fn6

The California Supreme Court has addressed the proper calculation of custody credits when a defendant is resentenced and upon reversal of a conviction when a defendant is already in state prison custody.

In People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), the California Supreme Court found that while a defendant is serving time in state prison, but the case is remanded for resentencing only, credit accrual remains post-sentence time even though the defendant is transported to county jail awaiting resentencing. (Id. at pp. 40-41.) In Buckhalter, the court refused to "consider the proper credit treatment of one who spends time in custody after his convictions have been reversed on appeal, thus setting the entire matter at large for retrial." (Id. at p. 40, fn. 10.) In Martinez, the Supreme Court addressed this unanswered question. (Martinez, supra, 30 Cal.4th at p. 31.)

In Martinez, a case essentially identical to the instant case, the defendant was convicted and sentenced in July 1996. She obtained reversal of her conviction in 1999 on habeas corpus review on the grounds of ineffective assistance of counsel. (Martinez, supra, 30 Cal.4th at p. 31.) Upon remand, the defendant pled guilty to the original charges, and she was resentenced in 1999. She was given section 4019 credits for the entire time between her arrest and the resentencing in 1999. Defendant was then resentenced in 2001 but ultimately was given section 4019 credit for the entire time she spent between her initial sentencing and the reversal. (Martinez, at p. 32.)

The California Supreme Court determined the proper credits on review. It first noted that section 2900.1 was relevant in that it provided for credits to be given to defendants who have their convictions reversed but are subsequently recommitted on the same criminal acts. The court noted that no case had "squarely addressed" whether this was presentence or post-sentence time. (Martinez, supra, 30 Cal.4th at p. 33.) The Martinez court determined that defendant should have been given section 4019 credits for what the court termed phase I time, which was the time between the initial arrest and her initial sentencing. She was additionally entitled to section 4019 credits for the time that her conviction was reversed to the time of her resentencing, so-called phase III time. As for the time between her initial sentencing and reversal -- phase II -- the California Supreme Court concluded that she was not eligible for section 4019 credits because, notwithstanding that her conviction was reversed, she remained a state prison inmate. (Id. at pp. 35-36.) The California Supreme Court also noted that the time between her sentencing in 1999, after she entered her plea, and the final sentencing in 2001 was phase IV time. (Id. at p. 32.)

The California Supreme Court rejected defendant's argument (asking for section 4019 credit for the entire time between her initial arrest and resentencing after the plea) that she was similarly situated to a pretrial detainee after her conviction was reversed. (Martinez, supra, 30 Cal.4th at p. 36.) Moreover, the court noted that "her subsequent plea confirms that her initial conviction, although procedurally invalid, was not without legal basis. On the contrary, she pleaded guilty to the charged offense, and thus does not warrant disparate treatment from a petitioner who initially received an error-free judgment." (Id. at pp. 35-37.)

Here, defendant's conviction was reversed by the federal district court, and therefore, it is most like Martinez. We conclude that defendant is entitled to receive section 4019 conduct credits for phases I and III, but, pursuant to Martinez, he is not entitled to receive section 4019 credits for phases II and IV. It is up to the CDCR to decide what behavior credits should be given for phases II and IV. (Buckhalter, supra, 26 Cal.4th at p. 31.)

Based on the foregoing, the trial court should have awarded the following credits: (1) phase I, the time between his initial arrest (September 5, 1994) until sentencing (June 15, 1995), defendant was entitled to 284 actual days, with section 4019 credits of 142 days, for a total of 426 days; (2) phase II, (June 15, 1995 through May 15, 2007) defendant was in custody in state prison for 4,353 days. The CDCR would have to calculate the number of behavior credits as this is post-sentence time; (3) phase III which is the time from reversal (May 15, 2007) to the time of his resentencing (June 28, 2007), he was in custody for 45 days. He is entitled to section 4019 credits of 22 days, for a total of 67 days; and (4) Finally, in phase IV, which was the time between the initial resentencing (June 28, 2007) to sentencing after receiving the letter from the CDCR (April 30, 2009), which is post-sentence time, defendant is entitled to 673 days of actual time spent in state prison, and the CDCR calculates the behavior credits. We will order the abstract of judgment amended to reflect the appropriate credits.*fn7

We briefly address defendant's further contentions, which are essentially arguments that this court should not apply Martinez to the instant case.

We reject defendant's argument that law of the case bars the trial court (and presumably this court) from recalculating custody credits awarded in 2001 based on this court's opinion issued on December 18, 2000, in which we relied upon Honea and Chew.

" . . . '"The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, . . . and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular."'" (People v. Stanley (1995) 10 Cal.4th 764, 786.) The doctrine is not applied when "the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations . . . ." (Id. at p. 787.)

In our 2000 opinion, we relied on Honea and Chew to determine that defendant was entitled to section 4019 conduct credits between the time of the original sentencing and resentencing. However, since our decision in 2000, the California Supreme Court decided several cases that overturned these cases to the extent they held that section 4019 credits should be awarded between the time of the original sentencing and resentencing.

In People v. Buckhalter, supra, 26 Cal.4th 20, the California Supreme Court held that, when a trial court modifies a sentence on remand, it is obligated to credit the defendant with all actual days he spent in custody, whether in jail or prison, up to the time of resentencing. (Id. at pp. 23, 37.) However, it rejected "Chew's premises that a sentencing remand transforms a prison sentence already in progress into presentence custody for purposes of the credit statutes, and that the defendant may therefore simultaneously earn both presentence jail time good behavior credits and prison worktime credits while removed from prison to jail pending the remand hearing." (Id. at p. 40.) The court stated: "[A] felon once sentenced and committed to prison remains, despite a later remand on sentencing issues, in the custody of the [CDCR], serving time against his ultimate sentence. This holds true whether he is confined in the penitentiary itself or is temporarily housed in county jail pending the remand hearing, and whether his sentence ultimately is modified or is left undisturbed." (Ibid.) It disapproved Chew insofar as it was inconsistent with its conclusions. (Buckhalter, at p. 40.)

In People v. Johnson (2004) 32 Cal.4th 260, which involved the recall of a sentence, the court held, "We disapprove People v. Honea (1997) 57 Cal.App.4th 842 [67 Cal.Rptr.2d 303] to the extent it suggests that the defendant was entitled to section 4019 presentence conduct credits for the confinement period in local custody between the original sentencing hearing and resentencing hearing pursuant to the trial court's recall of sentence and commitment under section 1170, subdivision (d). [Citation.]" (Id. at p. 268, fn. 3.)

The determination of the custody and conduct credits by this court in 2000 cannot be considered law of the case because intervening law between the time of the first appellate determination and this determination altered or clarified the amount of custody credits to be awarded. (People v. Stanley, supra, 10 Cal.4th at p. 787.)

More importantly, in Honea and Chew, the calculation of custody credits was based on resentencing. In our opinion in 2000, we recalculated credits based on resentencing. However, this case involves a different matter: the recalculation of custody credits after there has been a reversal. In Martinez, the California Supreme Court clarified the process for recalculating credits after there has been a reversal.

Defendant appears to argue that there was no intervening change in the law between his arrest date and the resentencing in 2001. However, as recognized by the People, the relevant period of the intervening change is between our opinion issued on December 18, 2000, and the instant appeal. Clearly, since our last decision, Honea and Chew were overturned as they related to the award of credits for resentencing and the court decided Martinez, which clarified the award of credits upon reversal.

Further, we have found no case, nor has defendant provided one, that applies the law of the case doctrine to custody credit issues. Due to the intervening clarification of the custody credit law between this court's prior opinion issued on December 18, 2000, and the instant appeal, we are not bound by the previous award of custody credits.

We also reject defendant's claim that he did not have "fair warning" of the change in the law as it pertained to custody credits.

The ex post facto clauses of the state and federal Constitutions preclude the retroactive application of a law that alters the legal rules of evidence such that a conviction may be based on less or different testimony than the law required at the time of commission of the offense. (U.S. Const., art. I, § 10, cl. 1; Cal. Const. art. 1, § 9.) Ex post facto principles limit only the power of the Legislature and do not apply directly to the judiciary. (Rogers v. Tennessee (2001) 532 U.S. 451, 456-457 [121 S.Ct. 1693, 149 L.Ed.2d 697].) Defendant does not contend that the law changed but rather that the judicial interpretation of section 4019 was not anticipated. As such, no proper ex post facto argument is raised by defendant.

Nonetheless, due process considerations of fair warning will preclude the retroactive effect of judicial interpretations of law that are "'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'" (Rogers v. Tennessee, supra, 532 U.S. at pp. 457, 461, quoting Bouie v. Columbia (1964) 378 U.S. 347, 354 [84 S.Ct. 1697, 12 L.Ed.2d 894].)

Here, the decision in Martinez cannot be said to have been "unexpected and indefensible"; it merely clarified that state prison time was not presentence custody time when a reversal of judgment occurs. The clarification of what constitutes presentence and post-sentence time for the accrual of conduct credits in this case, in which there was no expansion of criminal conduct or that was not unexpected, cannot be considered a violation of defendant's due process rights. Although the Martinez court recognized it was the first time this issue had been addressed, we do not consider the resolution unexpected or indefensible.

Further, defendant assumes that the relevant period of notice was prior to the issuance of Martinez, Johnson, and Buckhalter. However, at the time that defendant obtained reversal his conviction on May 15, 2007, the law on custody credits had been clarified. Defendant was on notice when he entered his plea that the custody credits would be calculated in accordance with the current law. Moreover, prior to the reversal, this court and the trial court had been concerned with the calculation of credits as it pertained to resentencing. Once defendant obtained a reversal, the focus shifted to the calculation of credits under Martinez. It stands to reason that he was on notice prior to entering his plea that the calculation of credits would not remain the same as prior recalculations as the situation had drastically changed. That the trial court erred when it initially awarded custody credits in 2007 is of no moment to whether he received fair warning.

Based on the foregoing, we conclude that the proper calculation of custody, conduct and behavioral credits in this case is in accordance with the findings in Martinez. As such, we will so order the trial court to award the proper credits.



The Riverside County Superior Court is directed to modify the judgment to award the following custody credits: For September 5, 1994, to June 15, 1995, defendant is entitled to 284 actual days, plus section 4019 credits of 142 days, for a total of 426 days. For June 15, 1995, through May 15, 2007, defendant was in custody in state prison for 4,353 days. The CDCR is directed to calculate the number of credits as to this post-sentence time. From May 15, 2007, to June 28, 2007, defendant is awarded 45 actual days, section 4019 credits of 22 days, for a total of 67 days. From June 28, 2007, to April 30, 2009, defendant is entitled to 673 days of actual time spent in state prison, and the CDCR is ordered to calculate the behavior credits. Further, the superior court is ordered to modify the abstract of judgment to reflect the correct offense date of September 5, 1994. The clerk is directed to forward certified copies of the new minute order reflecting the superior court's modification of the judgment and amended abstract to the CDCR. In all other respects, the judgment is affirmed.



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