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The People v. John Beebe

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


May 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN BEEBE, DEFENDANT AND APPELLANT.

Super. Ct. No. 07F01597

The opinion of the court was delivered by: Robie, J.

P. v. Beebe

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant John Beebe appeals from the judgment entered after this court reversed 3 of 10 burglary or attempted burglary counts and remanded for further proceedings (People v. Beebe (Aug. 10, 2009, C058783) [nonpub. opn.] (Beebe I)).

On appeal, defendant contends: the trial court erred in resentencing him when it failed to calculate and award him actual credits for the period he was in custody between his original sentencing on April 11, 2008, and his resentencing following Beebe I, on November 20, 2009. The People concede the issue and also ask us to impose certain mandatory fees and assessments that the trial court neglected to impose. We shall remand the matter back to the trial court.

BACKGROUND

In Beebe I, this court affirmed defendant's convictions on six of seven residential burglary counts and one of three attempted residential burglary convictions, as well as his convictions for possession of stolen property, burglary tools, methamphetamine, and drug paraphernalia. (Beebe I, supra, C058783, at pp. 1, 20.) However, because we determined that defendant's post-arrest confession to police was involuntary, we reversed one conviction for residential burglary and two convictions of attempted residential burglary as tainted by the involuntary confession. (Id. at pp. 1-2.) We remanded the matter to permit the People to decide whether to retry defendant on the three reversed convictions. (Id. at p. 23.)

On remand, the People elected not to retry defendant on the three reversed counts. The trial court resentenced him, imposed a prison term of 14 years, and ultimately filed an abstract of judgment which awarded defendant 633 days of credit for time served, including 423 actual days and 210 conduct credits. The abstract also contains the following among "[o]ther orders": "Court acknowledges CDC [California Department of Corrections] to grant additional 588 days of CDC time credit (4-11-08 through 11-20-09)."

DISCUSSION

I Presentence Custody Credits

Defendant contends the trial court erred when resentencing him because "it failed to properly calculate his custody credits" as required by People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter). The People concede the error and we agree.

A defendant "sentenced to prison for criminal conduct is entitled to credit against his [or her] term for all actual days of [presentence] confinement solely attributable to the same conduct." (Buckhalter, supra, 26 Cal.4th at p. 30.) When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must also calculate the actual time the defendant has already served and credit that time against the "subsequent sentence." (Id. at p. 23.) "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." (Pen. Code,*fn1 § 2900.1.)

When a trial court imposes a sentence, it "has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment." (Buckhalter, supra, 26 Cal.4th at p. 30.) "[U]nder section 2900.1, the trial court, having modified defendant's sentence, should have determined all actual days defendant had spent in custody, whether in jail or prison, and awarded such credits in the new abstract of judgment." (Buckhalter, at p. 41, italics added.)

Here, although the trial court apparently calculated defendant's time credits for the period of incarceration between the original sentence and resentencing ("Court acknowledges CDC to grant additional 588 days of CDC time credit (4-11-08 through 11-20-09)"), it did not add 588 days of post-sentence incarceration credits to the 423 days of presentence incarceration credits, and include the total on the abstract of judgment, as required by Buckhalter. We will remand the matter to the trial court so that it can do this, and then issue an amended abstract of judgment reflecting the total time credits.*fn2

II Mandatory Fees And Assessments

The People correctly point out that the trial court did not impose the mandatory criminal laboratory analysis fee of $50 for each offense (Health & Saf. Code, § 11372.5),*fn3 plus its corresponding required penalty assessments (§ 1464; Gov. Code, § 76000);*fn4 the mandatory court security funding fee of $20 for each conviction (former Pen. Code, § 1465.8, subd. (a)(1));*fn5 or the mandatory court facilities funding assessment of $30 for each misdemeanor or felony (Gov. Code, § 70373, subd. (a)(1)).*fn6

Ordinarily, we would simply correct these omissions on our own. However, because we are remanding this case on another point, we shall direct the trial court to impose these mandatory fees upon remand. We are increasingly distressed at the frequency with which we find these mandatory fees not imposed by the trial courts. We hope that including this issue in the remand will help bring home the point that the law mandates the imposition of these fees by the trial court.

DISPOSITION

The judgment is reversed to the extent it omitted a proper calculation of presentence custody credits and imposition of mandatory fees and assessments. In all other respects, the judgment is affirmed. The trial court shall add the total custody credits, impose the mandatory fees and assessments, and modify the abstract of judgment to reflect the total presentence custody credits earned by defendant and all mandatory fees and assessments. It shall thereafter forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON , Acting P.J. MAURO, J.


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