Filed 1/5/16 P. v. Cunningham CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063440

v.                                                                       (Super.Ct.No. SWF1300545)

CHARLES KENNETH CUNNINGHAM,                                              OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed in part and reversed in part with directions.

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

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Lynne G.

McGinnis, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.




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       On April 27, 2015, the court granted defendant and appellant Charles Kenneth

Cunningham’s petition for resentencing pursuant to Penal Code section 1170.18,

subdivision (a).1 The court reduced the count 1 offense to a misdemeanor and sentenced

defendant to 364 days of jail to be served concurrent to the eight-year sentence it imposed

on the remaining count and enhancements. The court granted defendant the same total of

632 days of custody credits, consisting of 316 actual and 316 local conduct days, as it had

at defendant’s initial sentencing on November 15, 2013.

       On appeal, defendant contends the court should have awarded him additional

actual days of custody credits for the time he spent incarcerated between the date of his

original sentencing and the date of his resentencing. The People concede the issue. We

reverse and remand the matter for recalculation and an award of the total amount of

credits defendant should receive for the total amount of actual days defendant spent

incarcerated.

                  I. FACTUAL AND PROCEDURAL BACKGROUND2

       On January 4, 2013, an officer noticed defendant sitting on a bus bench. The

officer recognized defendant as a parolee at large. Defendant was also on a concurrent

grant of probation. The officer attempted to detain defendant, informing defendant there


       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2 For their factual recitation, the parties rely on the facts as recounted in the
probation officer’s report filed on April 27, 2015, after defendant filed his petition for
resentencing. We shall rely on the probation officer’s report for our recitation of the facts
as well.

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was a warrant for his arrest. Defendant ran. The officer pursued. Defendant twice

stopped and raised his arms in a fighting position. The officer struck defendant several

times. The officer fired a Taser at defendant, to no effect. The officer took defendant to

the ground, where defendant continued to resist despite numerous commands to comply.

The officer was eventually able to subdue and handcuff defendant. Officers found 20

opiate-based Dilaudid pills, for which defendant did not have a prescription, inside a

plastic baggie on defendant’s person.

       On January 18, 2013, the People charged defendant by felony complaint with the

unlawful possession of hydromorphone (count 1; Health & Saf. Code, § 11350, subd.

(a)), resisting a peace officer in the performance of his duties by threats and violence

(count 2; Pen. Code, § 69), and the unlawful possession of drug paraphernalia (count 3;

Health & Saf. Code, § 11364.1). The People additionally alleged defendant had

sustained 10 prior prison terms (Pen. Code, § 667.5, subd. (b)) and two prior strike

convictions (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). On

August 6, 2013, the court struck one of the prior strike conviction allegations pursuant to

Romero.3

       On October 15, 2013, pursuant to a plea agreement, defendant pled guilty to the

count 1 and 2 offenses and admitted two prior prison terms and one prior strike

conviction. In return, the court sentenced defendant to a determinate term of nine years

four months’ incarceration to be served concurrently with a suspended 13-year sentence

       3   People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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in another case, case No. SWF1200798.4 The court dismissed count 3 and the eight

remaining prior prison term allegations. On the same date defendant was sentenced in

the instant case, defendant was found in violation of his probation in case No.

SWF1200798, had his probation vacated, and was sentenced to 13 years’ imprisonment.5

       On December 3, 2014, defendant filed a petition for resentencing pursuant to

section 1170.18, subdivision (a) in both cases. On January 16, 2015, the court granted

defendant’s petition in case No. SWF1200798, reduced his count 1 offense to a

misdemeanor, and struck all 10 prior prison allegations attached to the count 1 offense.

       On January 30, 2015, the People filed a response to defendant’s petition in the

instant case noting that although defendant was eligible for resentencing on the count 1

offense, he was ineligible for resentencing on the count 2 offense. On March 27, 2015,

the court referred the matter out for preparation of a probation officer’s report.

       In his report, the probation officer noted that the date of defendant’s arrest was

January 4, 2013, and the date of his release from local custody, his sentencing date, was

November 15, 2013. Therefore, defendant was entitled to the same amount of credits

       4 Defendant had pled guilty on September 11, 2012, in case No. SWF1200798, to
one count of the unlawful possession of a controlled substance (count 1; Health & Saf.
Code, § 11350, subd. (a)) and the unlawful possession of drug paraphernalia (count 2;
former Health & Saf. Code, § 11364.1). Defendant additionally admitted he had suffered
10 prior prison terms. (Pen. Code, § 667.5, subd. (b).) The court suspended the
proceedings and granted defendant 36 months of formal probation.

       5 Defendant’s suspended sentence was conditioned on his completion of a
substance abuse treatment program. Defendant was discharged from a program in which
he was enrolled. Defendant never informed either his parole or probation officer of his
termination from the program.

                                              4
which had been awarded at his original sentencing: 316 days actual and 316 local

conduct for a total of 632 days’ credit. The probation officer further noted: “For the

Court’s information, any time spent in local custody awaiting transfer to state prison is

the responsibility of the Department of Corrections and Rehabilitation [(DCR)]. This

date represents when the defendant was originally sentenced in the instant matter

although he remained in local jail until November 26, 2013, awaiting transfer.

Furthermore, the defendant is not entitled to additional local custody credit in the instant

matter while awaiting resentencing and any time spent in local custody remains the

responsibility of the [DCR].”

       The court reduced the count 1 offense to a misdemeanor and ordered defendant to

serve 364 days, concurrent to the sentence imposed on count 2 and the enhancements.

The court imposed a determinate term of eight years’ imprisonment, consisting of the

following: the upper term of three years on count 2, doubled pursuant to the prior strike

conviction, and two consecutive one-year terms for the prior prison term enhancements.

       The court, pursuant to the probation officer’s recommendation, granted custody

credits of 316 actual and 316 conduct days for a total of 632 days of credit. Defense

counsel noted: “I think the court is supposed to . . . state the actual credits from that date

until today’s date in the abstract of judgment, and I think . . . that is 528 actual days from

the date of his original sentence.” The court instead ordered: “The [DCR] . . . to

calculate and award appropriate credits and good time credits to the defendant from those

dates forward.”


                                              5
                                      II. DISCUSSION

         Defendant contends the court was required to recalculate his custody credits to

reflect the total amount of actual days defendant had spent incarcerated from his arrest

through to resentencing. The People concede the court erred in directing DCR to

calculate the credit for the total amount of actual days defendant spent incarcerated. We

agree.

         “[W]hen a prison term already in progress is modified . . . the sentencing court

must recalculate and credit against the modified sentence all actual time the defendant

has already served, whether in jail or prison, and whether before or since he was

originally committed and delivered to prison custody.” (People v. Buckhalter (2001) 26

Cal.4th 20, 29.) “[T]he trial court, having modified defendant’s sentence . . . [is] obliged,

in its new abstract of judgment, to credit him with all actual days he ha[s] spent in

custody, whether in jail or prison, up to that time.” (Id. at p. 37.)

         Here, defense counsel correctly observed that the court should calculate and award

credits for the actual days defendant spent incarcerated. Nonetheless, the court directed

DCR to calculate defendant’s credits, including credits for the actual days defendant

spent incarcerated between the day of his original sentencing and the date of his

resentencing. Thus, the court erred in neglecting to calculate and award defendant credit

for all the actual days defendant spent incarcerated.




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                                    III. DISPOSITION

       The judgment is reversed in part and the case is remanded to the court to calculate

and award defendant credits for all the actual days defendant spent incarcerated. The

court is directed to forward a copy of the new abstract of judgment to the DCR. (People

v. Buckhalter, supra, 26 Cal.4th at p. 41.) In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                 Acting P. J.


We concur:

MILLER
                           J.

CODRINGTON
                           J.




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