IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
November 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERTO LOUIS BARRON, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF060983)
The opinion of the court was delivered by: Mauro, J.
P. v. Barron
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Roberto Louis Barron of two counts of attempted murder, two counts of assault with a firearm and one count of possession of a firearm by a convicted felon. In a previous appeal, this court reversed the trial court's determination that defendant's prior conviction in Colorado for felony menacing was a strike. This court remanded the matter for resentencing and correction of the abstract of judgment. (People v. Barron (July 7, 2010, C061594) [nonpub. opn.] (Barron I).)
Defendant now appeals the judgment following resentencing. He contends (1) he is entitled to additional custody credit for the period between his original sentencing on March 20, 2009, and his resentencing following Barron I, on November 19, 2010; (2) the trial court should clarify the amount of the restitution fines imposed; and (3) the trial court abused its discretion in reimposing consecutive sentences.
The People agree that the matter should be remanded to the trial court for calculation and award of custody credit and for clarification of the amount of restitution fines imposed. But the People contend defendant forfeited his claim that the trial court erred in imposing consecutive sentences.
We agree with the People.
A Colorado bail agency hired bounty hunters to find defendant after he absconded on bail. Bounty hunters went to a motel where defendant was staying, obtained a room key from the manager and announced themselves at the motel room. The door to the room was blocked with furniture, but they successfully opened the door. They retreated, however, after hearing a gunshot. Defendant eventually surrendered with gunshot residue on his hand. There was a bullet hole in the motel room wall and an expended casing next to the bed.
Defendant was convicted of attempted murder, assault with a firearm and possession of a firearm by a convicted felon. In Barron I, this court affirmed the convictions, but determined that the trial court erred in finding that defendant had two prior strikes because defendant's prior conviction in Colorado for felony menacing was not a strike. This court reversed that finding and remanded the matter for resentencing. This court also directed the trial court to correct the abstract of judgment because it indicated $1,000 in restitution fines even though only $600 in fines had been imposed by the trial court.
On remand, the trial court resentenced defendant, imposing consecutive terms on the two attempted murder convictions and the firearm possession conviction and staying the two convictions for assault with a firearm under Penal Code section 654,*fn2 for a total aggregate prison term of 42 years 4 months. The trial court awarded defendant 1,298 days of custody credit.
Defendant contends he is entitled to additional custody credit for the time period between the original sentencing and resentencing after remand, as required by People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter). The People agree, and so do we.
A defendant "sentenced to prison for criminal conduct is entitled to credit against his 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." (§ 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." (Id. at p. 41.)
Defendant is entitled to the calculation and award of custody credit for the period of his incarceration between the original sentence and resentencing. We will remand the matter so that the trial court can calculate and award such credit, and so that it can issue an amended abstract of judgment reflecting the total credit.
On remand, the trial court will also have an opportunity to clarify its intention regarding the amount of restitution fines imposed.
In Barron I, we noted that the trial court orally imposed $600 in restitution fines at the original sentencing, but the abstract of judgment showed the imposition of $1,000 in restitution fines. (§§ 1202.4, subd. (b), 1202.45.) We ordered the abstract of judgment corrected on remand.
At the resentencing hearing, the trial court ordered that defendant pay $600 in restitution fines, but later indicated that defendant was to pay only $200 in restitution fines. The amended abstract of judgment reflects $600.
The trial court has discretion at resentencing to reduce the amount of a previously imposed restitution fine. (People v. Rosas (2010) 191 Cal.App.4th 107, 117-120.) But the trial court should clarify on remand whether it intended to impose restitution fines of $600 or $200 and amend the abstract of judgment accordingly, if necessary.
Defendant also contends that the trial court abused its discretion by reimposing consecutive sentences on his convictions for attempted murder and firearm possession. Defendant argues the evidence at trial was inconsistent on the number of shots fired and that some evidence suggested there was only a single shot. He further argues that the trial court abused its discretion in imposing a consecutive sentence on the firearm possession conviction because it failed to state reasons for doing so.
These contentions are not cognizable in this appeal, because the contentions could have been, but were not, raised in defendant's earlier appeal in Barron I. (People v. Senior (1995) 33 Cal.App.4th 531, 533 ["when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay"]; see also People v. Murphy (2001) 88 Cal.App.4th 392, 395-397 [on appeal from a limited remand, the appellant is precluded from raising a new argument that could have been raised in the initial appeal because the time in which to make it has passed].)
The matter is remanded to the trial court to calculate defendant's custody credit, award the credit to which defendant is entitled, and clarify the amount of restitution fines imposed. The trial court shall amend the abstract of judgment, as necessary, to reflect defendant's custody credit and restitution fines, and it shall forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: RAYE , P. J. BUTZ , J.