People v. Rojas

95 Cal.App.5th 48

312 Cal.Rptr.3d 918

The PEOPLE, Plaintiff and Respondent,

v.Fredy ROJAS, Defendant and Appellant.

B325493

Court of Appeal, Second District, Division 4, California.

Filed August 31, 2023

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, Kathy S. Pomerantz and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.

COLLINS, ACTING P. J.

In 2013 appellant Fredy Rojas started a fistfight with his cousin Antonio at a family party. Appellant's fellow gang members intervened, and one of them fatally shot Antonio. Appellant was convicted of voluntary manslaughter and gang and firearm enhancements and sentenced to a total term of 22 years.

In 2022, appellant filed a petition for resentencing under Penal Code section 1172.6 (former section 1170.95).¹ The trial court granted the petition, vacated appellant's conviction, and resentenced him to the midterm of three years on the target offense of assault with force likely to cause great bodily injury. The court awarded appellant the same number of custody credits he was awarded at his initial sentencing and reimposed the same fines, fees, and direct victim restitution. The court placed appellant on parole for a period of two years.

Appellant contends the court erred in several respects. He first argues that he should have received additional custody credits for the time he served on his original sentence. Respondent Attorney General concedes appellant is correct, and we agree. We also agree that appellant's excess custody credits should be applied in satisfaction of his restitution and parole revocation fees pursuant to the version of section 2900.5 effective at the time of his crime. However, we reject appellant's contentions that his excess credits should also offset nonpunitive assessments and parole, and that the court erred in reimposing direct victim restitution. We accordingly remand with directions for the trial court to recalculate appellant's custody credits and apply excess credits in satisfaction of the $280 restitution fine and $280 parole revocation fine. The order is otherwise affirmed.

FACTUAL BACKGROUND

For purposes of this appeal, appellant accepts the facts as recited in People v. Acosta (May 5, 2017, B267775, 2017 WL 1787950) [nonpub. opn.], in which a different panel of this court affirmed appellant's conviction. The facts relevant here include the following:

Appellant's cousin Antonio asked him to leave a family party after appellant and several companions arrived uninvited. Appellant punched Antonio and a fistfight ensued. Appellant shouted something to the effect of "woo-woo" to his companions, who came to his aid. The fight grew into a melee involving 15 to 20 people. One of appellant's companions, Emir Acosta, drew a gun and fatally shot Antonio. (See People v. Acosta , supra . )

PROCEDURAL HISTORY

I. Conviction and Sentence

Appellant and Acosta were jointly charged with murder. ( § 187, subd. (a).) The information alleged that the murder was committed in association with and to benefit a criminal street gang ( § 186.22, subd. (b)(1)(C) ) and that a principal, Acosta, personally used a firearm to commit the offense ( § 12022.53, subds. (b)-(d) ). The information also charged Acosta with being a felon in possession of a firearm. ( § 29800, subd. (a)(1).) ( People v. Acosta , supra .)

Appellant and Acosta were tried jointly. The prosecution argued that appellant either directly aided and abetted the shooting of Antonio, or that he aided and abetted an assault and Antonio's death was a natural and probable consequence of that assault. The court instructed the jury on the natural and probable consequences doctrine. The jury convicted Acosta of second degree murder and being a felon in possession of a firearm. It acquitted appellant of murder, but found him guilty of the lesser included offense of voluntary manslaughter. The jury found the gang and firearm allegations true as to both Acosta and appellant. ( People v. Acosta , supra .)

The trial court sentenced appellant to a total of 22 years in state prison. ( People v. Acosta , supra .) It also imposed a restitution fine of $280 ( § 1202.4, subdivision (b) ), imposed and stayed a parole revocation restitution fine of $280 ( § 1202.45 ), and imposed a $40 court operations assessment ( § 1465.8, subd. (a)(1) ) and a $30 criminal conviction assessment ( Gov. Code, § 70373 ). The court ordered appellant to pay $13,046.74 in direct victim restitution to Antonio's family for Antonio's cemetery plot and headstone, and $5,000 to the Victim Compensation and Government Claims Board ( § 1202.4, subd. (f) ).² The court awarded appellant a total of 1,888 days of custody credit: 944 actual days and 944 days of good time credit.

A different panel of this court affirmed appellant's convictions and sentence on direct appeal. (See People v. Acosta , supra .)

II. Section 1172.6 Proceedings

On January 6, 2022, appellant filed a petition for resentencing under section 1172.6. At some point, the court appointed counsel for him. On May 19, 2022, the People filed a response conceding that appellant had made a prima facie showing of eligibility for relief and requested that the court issue an order to show cause and set the matter for an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3).

On September 21, 2022, the People and appellant's counsel stipulated that appellant was entitled to be resentenced under section 1172.6. They further stipulated that appellant would be resentenced for assault by means likely to produce great bodily injury ( § 245, subd. (a)(4) ).

The same day, the court vacated appellant's voluntary manslaughter conviction and resentenced him to the midterm of three years for the assault. The court stated that "the original terms and conditions, in terms of fines and fees ... will stand." The court further ruled that the direct victim restitution of $18,671.47 for "funeral and burial costs" would stand. The court explained, "[i]t does result from his actions even though it's a 245(a)(4), so that order will stand in terms of the restitution." Appellant's counsel did not object. He also did not object when the court ordered two years of parole.

Appellant's counsel reminded the court to award appellant custody credit. The court clerk reported that appellant had 944 days of actual time when he was sentenced in 2016. The court stated that the precise number of credits "doesn't matter, because the CDCR will recalculate all that," and "[f]or all intents and purposes, it's time served." Appellant's counsel then asserted the actual time was 4,684 days, or nearly 13 years; the People did not provide an alternative number. The court said, "Okay, and CDCR will take it from there." The minute order documenting the hearing does not say anything about custody credits; the abstract of judgment states that appellant received credit for 944 days of actual time and 944 days of conduct credit, for a total of 1,888 days.

Appellant timely appealed.

DISCUSSION

I. Custody Credits

Appellant contends, and respondent agrees, that the trial court did not award him the full amount of custody credit to which he was entitled. We agree.

"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.) In the specific context of a resentencing under section 1172.6, a person resentenced "shall be given credit for time served." ( § 1172.6, subd. (h).) Under these provisions, "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." ( People v. Buckhalter (2001) 26 Cal.4th 20, 41, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) The trial court did not fulfill this obligation, rendering appellant's sentence unauthorized. ( People v. Taylor (2004) 119 Cal.App.4th 628, 647, 14 Cal.Rptr.3d 550.)

Although his counsel below suggested that appellant was entitled to 4,684 days of actual credit, appellant now asserts "that the five years, nine months and 21 days appellant spent in custody from January 5, 2016 through September 21, 2022 totals 2085 days." He contends that the 1,888 days he was previously awarded should be added to this amount, "for a total of 3943 days of credit."³ Citing the May 25, 2013 arrest date that appears in People v. Acosta, supra , respondent contends appellant should have been awarded 956 days of actual time credit and 956 days of good time credit when he was initially sentenced on January 5, 2016, instead of 944 days of each. Respondent further asserts that appellant served an additional 2,451 days of time between January 5, 2016 and September 21, 2022, such that he should receive credit for 3,407 actual days (956 + 2,451) and 956 days of presentence good conduct credit, for a total custody credit of 4,363 days. Appellant does not address the discrepancy between his calculations and respondent's in his reply brief.

Although we may correct the unauthorized sentence on appeal, the appellate record is limited and the parties’ proposed calculations differ significantly. We accordingly remand so the trial court may calculate the correct credits in the first instance and prepare a new abstract of judgment.

II. Application of Excess Credits to Fines and Assessments

Appellant contends that regardless of the precise amount of custody credits he accrued, he served enough excess time to offset the $280 restitution fine, $280 parole revocation fine, $40 court operations assessment, and $30 conviction assessment.⁴ R...