(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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 ...