Filed 10/3/16 P. v. Macauley CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN



THE PEOPLE,                                                          B264034

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA121607)
         v.

MOHAMED N. MACAULEY,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed and remanded with directions.
                   Edward H. Schulman, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. and David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.


                                             ____________________
                                      INTRODUCTION


          On remand the trial court sentenced Mohamed Newlove Macauley to the upper
term of eight years on a conviction for pimping a minor under the age of 16 years
(Pen. Code, § 266h, subd. (b)(2))1 and to consecutive terms of two years on two
convictions for pandering a minor under the age of 16 years (§ 266i, subd. (b)(2)).
Macauley appeals the trial court’s decisions to impose the upper term on his pimping
conviction and a consecutive term on one of the pandering convictions. Macauley argues
the trial court’s sentence violated his Sixth Amendment right to a jury trial, the court
relied on aggravating factors that were inherent in the commission of the offenses, and
the court relied on the same aggravating factors in selecting the upper term on the
pimping count that the court relied on in imposing the consecutive sentence on the
pandering count. We remand for a recalculation of Macauley’s presentence custody
credits, direct the trial court to correct errors in the abstract of judgment, and otherwise
affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND


          In August 2012, after hearing evidence that Macauley found two 13-year-old girls,
S.T. and A.H., who had run away from home and put them to work as prostitutes, a jury
convicted Macauley of two counts of pimping a minor under 16 years of age2 and two


1         Statutory references are to the Penal Code.
2       A person is guilty of pimping “who, knowing another person is a prostitute, lives
or derives support or maintenance in whole or in part from the earnings or proceeds of the
person’s prostitution, or from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other place where prostitution is
practiced or allowed, or who solicits or receives compensation for soliciting for the
person.” (§ 266h, subds. (a), (b).) If, as here, “the person engaged in prostitution is
under 16 years of age, the offense is punishable by imprisonment in the state prison for
three, six, or eight years.” (§ 266h, subd. (b)(2).)

                                               2
counts of pandering a minor under 16 years of age.3 One count of each offense related to
each girl. In a prior appeal, we reversed the conviction for pimping S.T. for insufficient
evidence, affirmed the remaining convictions, and remanded for resentencing.
       At the resentencing hearing, counsel for Macauley, citing mitigating factors that
Macauley was in state prison for the first time and had performed well there, asked the
court to impose the middle or lower term on the pimping conviction and a concurrent
sentence on the conviction for pandering A.H. The court acknowledged these mitigating
factors, but determined “the aggravating factors far outweigh the mitigating factors.”
After noting that Macauley “grabbed two 13-year-old girls, took them to different parts of
Los Angeles County, and made them sell their bodies,” the court observed, “That’s a
pretty egregious crime.” The court continued: “So with that said, the court is going to go
ahead and sentence the defendant to the high term in count 2 [pimping A.H.], which is
eight years. And the court is doing that because of the vulnerability of the victims
involved. Not just one. There were two victims involved. The court is going to look at
the sophistication of the crime. You had another prostitute with you that you also had
since perhaps she was young, if memory serves me, and she acted as the lookout. You
were in one car, she was across the street, and you monitored how well they were doing,
flagging down people out on the street, and so they can go off with strangers. Thirteen-
year-old girls, with strangers, performing sex for money in your pockets. Sophistication,
definitely great. Also you took one of them to go get clothes, high heels, the short shirts.
You took pictures of her so you could sell the photographs.” “Also,” the court added,
“your criminal history certainly escalated. You put these girls in a vulnerable position,
and we all know what happens with prostitutes. And they very well are in a position



3       As relevant here, a person is guilty of pandering if he or she “[p]rocures another
person for the purpose of prostitution” or “[b]y promises, threats, violence, or by any
device or scheme, causes, induces, persuades, or encourages another person to become a
prostitute.” (§ 266i, subd. (a)(1)-(2).) If, as here, the pandering victim is a minor under
the age of 16 years, “the offense is punishable by imprisonment in the state prison for
three, six, or eight years.” (§ 266i, subd. (b)(2).)

                                             3
where they could easily be killed. These were minors, and you were definitely in the
leadership role in every aspect of this.”
       The court sentenced Macauley to the upper term of eight years on the pimping
conviction and two years (one-third the middle term) on each pandering conviction, both
two-year sentences to run consecutively, for a total of 12 years. The court awarded
Macauley the same 488 days of presentence custody credit (244 actual days and 244 days
of conduct credit) the court had awarded at the original sentencing hearing. Macauley
timely appealed.


                                       DISCUSSION


       Macauley raises three challenges to his upper term sentence for pimping and his
consecutive sentence for pandering A.H.4 First, he contends both sentences violated his
Sixth Amendment right to a jury trial. Second, he contends the trial court erred by
relying on aggravating factors that were inherent in the commission of the offenses.
Third, he contends the trial court erred by relying on the same aggravating factors in
imposing the upper term on the conviction for pimping that the court relied on in
imposing the consecutive sentence for the pandering conviction.5




4      Macauley does not challenge his consecutive sentence for pandering S.T.

5       Macauley concedes he did not raise any of these objections at his resentencing
hearing, and to avoid forfeiture of his arguments he contends, among other things, that
his counsel rendered ineffective assistance in failing to object at that time. Because we
find the objections are meritless, Macauley cannot show his counsel was ineffective in
failing to make them. (See Strickland v. Washington (1984) 466 U.S. 668, 687; People v.
Carter (2003) 30 Cal.4th 1166, 1208 [defendant’s “derivative claim of ineffective
assistance of counsel in failing to object to the challenged inquiry lacks merit”]; People v.
Woods (2015) 241 Cal.App.4th 461, 484 [ineffective assistance of counsel claim based
on failure to object to jury instruction was meritless because instruction was not
erroneous].)

                                             4
       A.     Applicable Law and Standard of Review
       A trial court’s decision whether to impose the lower, middle, or upper term is
governed by section 1170, subdivision (b), which provides in relevant part: “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the choice of the appropriate term shall rest within the sound discretion of the
court. . . . The court shall select the term which, in the court’s discretion, best serves the
interests of justice. The court shall set forth on the record the reasons for imposing the
term selected . . . .” “[T]he broad discretion given to trial courts by section 1170 is
subject to review for an abuse of discretion. [Citation.] ‘[A] trial court will abuse its
discretion . . . if it relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.’” (People v. Moberly (2009) 176
Cal.App.4th 1191, 1196; accord, People v. Sandoval (2007) 41 Cal.4th 825, 847; People
v. Willover (2016) 248 Cal.App.4th 302, 323.) Subject to certain exceptions, “a trial
court is free to base an upper term sentence upon any aggravating circumstance that
(1) the court deems significant and (2) is reasonably related to the decision being made.”
(Moberly, at p. 1196; see Sandoval, at p. 848; Cal. Rules of Court, rule 4.408(a).)6
       Similarly, “[u]nder section 669, a trial court has discretion to determine whether to
impose sentences consecutively or concurrently.” (People v. Leon (2016) 243
Cal.App.4th 1003, 1025; accord, People v. Bradford (1976) 17 Cal.3d 8, 20.) In
exercising that discretion, the court, with certain exceptions, may consider “[a]ny
circumstances in aggravation or mitigation.” (Rule 4.425(b).) “In the absence of a clear
showing of abuse, the trial court’s discretion in this respect is not to be disturbed on
appeal.” (People v. Bradford, supra, 17 Cal.3d at p. 20; accord, People v. Shenouda
(2015) 240 Cal.App.4th 358, 369.)




6      References to rules are to the California Rules of Court.

                                               5
       B.     Macauley’s Sentence Does Not Violate the Sixth Amendment
       Macauley first attacks the constitutionality of California’s determinate sentencing
law. He contends that, by relying on factors that “were neither expressly found by the
jury nor implicit in their verdict(s)” to impose the upper term on his pimping conviction,
the trial court violated his Sixth Amendment right to a jury trial under the principles of
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California
(2007) 549 U.S. 270 (Cunningham).
       Concerning the Sixth Amendment right to a jury trial as applied to the states under
the due process clause of the Fourteenth Amendment, the United States Supreme Court in
Apprendi held, “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The
United States Supreme Court explained in Blakely v. Washington (2004) 542 U.S. 296
that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the maximum
he may impose without any additional findings.” (Id. at pp. 303-304.)
       In Cunningham the United States Supreme Court applied these principles to
California’s determinate sentencing law, which at that time provided that, for statutory
offenses specifying three terms of imprisonment, “‘the court shall order imposition of the
middle term, unless there are circumstances in aggravation or mitigation of the crime.’”
(Cunningham, supra, 549 U.S. at p. 277, quoting former § 1170, subd. (b).) The
Supreme Court in Cunningham observed that this provision, “and the Rules [of Court]
governing its application, direct the sentencing court to start with the middle term, and to
move from that term only when the court itself finds and places on the record facts—
whether related to the offense or the offender—beyond the elements of the charged
offense.” (Id. at p. 279.) The United States Supreme Court concluded that, by
“assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a

                                               6
defendant to an elevated ‘upper term’ sentence,” the determinate sentencing law violated
the Sixth Amendment. (Cunningham, supra, 549 U.S. at p. 274; see Sandoval, supra, 41
Cal.4th at pp. 831-832, 835.)
       The California Legislature responded to Cunningham by amending section 1170,
subdivision (b), to its current form. (Stats. 2007, ch. 3, § 2; People v. Jones (2009) 178
Cal.App.4th 853, 866; see People v. Wilson (2008) 164 Cal.App.4th 988, 992 [the
amendment responded “to Cunningham’s suggestion that California could comply with
the federal jury-trial constitutional guarantee while still retaining determinate sentencing,
by allowing trial judges broad discretion in selecting a term within a statutory range,
thereby eliminating the requirement of a judge-found factual finding to impose an upper
term”].) Under section 1170, subdivision (b), as amended, “(1) the middle term is no
longer the presumptive term absent aggravating or mitigating facts found by the trial
judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term
based on reasons he or she states.” (Wilson, at p. 992; see Jones, at p. 866 [the
amendment “essentially eliminated the middle term as the statutory maximum absent
aggravating factors”].)
       Macauley acknowledges this “effort to constitutionalize” California’s determinate
sentencing law, but suggests the current version of section 1170, subdivision (b), violates
the Sixth Amendment “for much the same reason as did its predecessor statute.” In
support of his argument he cites only the United States Supreme Court’s statement in
Cunningham that “broad discretion to decide what facts may support an enhanced
sentence, or to determine whether an enhanced sentence is warranted in any particular
case, does not shield a sentencing system from the force of our decisions. If the jury’s
verdict alone does not authorize the sentence, if, instead, the judge must find an
additional fact to impose the longer term, the Sixth Amendment requirement is not
satisfied.” (Cunningham, supra, 549 U.S. at p. 290.)
       Under amended section 1170, subdivision (b), however, “trial courts are free to
impose an upper term sentence without engaging in additional fact finding.” (People v.
Pham (2009) 180 Cal.App.4th 919, 930; see Sandoval, supra, 41 Cal.4th at pp. 846-847

                                              7
[the current version of the determinate sentencing law requires the trial court “to specify
reasons for its sentencing decision, but . . . not . . . to cite ‘facts’ that support its decision
or to weigh aggravating and mitigating circumstances”]; People v. Jones, supra, 178
Cal.App.4th at p. 866 [“trial courts now have the discretion under section 1170,
subdivision (b), to select among the lower, middle, and upper terms specified by statute
without stating ultimate facts deemed to be aggravating or mitigating under the
circumstances and without weighing aggravating and mitigating circumstances”].) As
the California Supreme Court concluded in Sandoval, “affording the trial court discretion
to select among the three available terms, without requiring a finding of aggravating and
mitigating circumstances, . . . eliminate[d] the constitutional defect identified in
Cunningham.” (Sandoval, at p. 852.) Therefore, Macauley’s argument has no merit.
       Macauley also contends the trial court violated his Sixth Amendment right to a
jury trial by imposing a consecutive sentence for pandering A.H. based on factors not
contained or implicit in the jury’s verdict. He concedes, however, that the United States
Supreme Court’s decision in Oregon v. Ice (2009) 555 U.S. 160 forecloses that argument.
(See id. at p. 168 [refusing to extend the Apprendi rule to the imposition of consecutive
sentences for discrete crimes]; In re Coley (2012) 55 Cal.4th 524, 557, fn. 18 [in Oregon
v. Ice the United States Supreme Court “held the Apprendi line of decisions does not
apply to factual findings that bear on the question whether multiple sentences are to be
imposed consecutively or concurrently”]; Sanchez v. Hedgpeth (C.D.Cal. 2010) 706
F.Supp.2d 963, 992-993 [argument that the “imposition of consecutive terms based on
facts not found by the jury beyond a reasonable doubt” violates the Sixth Amendment “is
foreclosed . . . by the U.S. Supreme Court’s . . . opinion in Oregon v. Ice”].) We decline
Macauley’s invitation to “record [our] disagreement with that opinion.”


       C.      The Trial Court Did Not Err by Relying on Factors Inherent in the
               Commission of the Offenses
       “Only a single aggravating factor is required to impose the upper term [citation],
and the same is true of the choice to impose a consecutive sentence.” (People v. Osband

                                                 8
(1996) 13 Cal.4th 622, 728-729; see People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371;
People v. Leon (2010) 181 Cal.App.4th 452, 469.) Whether imposing the upper term or a
consecutive sentence, however, the trial court may not consider as an aggravating factor a
fact that is an element of the crime on which the court is imposing punishment. (Rules
4.420(d), 4.425(b)(3); see People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1291-
1292; People v. Quintanilla (2009) 170 Cal.App.4th 406, 413.) Macauley argues the trial
court violated this rule by imposing the upper term for pimping and a consecutive
sentence for pandering A.H. based on reasons that “embraced factors inherent in the
commission” of those offenses.


              1.      Imposition of the Upper Term for Pimping
       The trial court cited “the vulnerability of the victims” as a reason for imposing the
upper term on Macauley’s pimping conviction. Under the sentencing rules, a court may
consider whether the victim was “particularly vulnerable” as a factor in imposing an
upper term. (Rule 4.421(a)(3).) “[A] ‘particularly vulnerable’ victim is one who is
vulnerable ‘in a special or unusual degree, to an extent greater than in other cases.’”
(People v. Esquibel (2008) 166 Cal.App.4th 539, 558.) “‘Vulnerability means
defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the
defendant’s criminal act.’” (People v. DeHoyos (2013) 57 Cal.4th 79, 154.)
       Macauley concedes that A.H.’s vulnerability was not “a technical ‘element’” of
his offense, but suggests the trial court erred by relying on A.H.’s vulnerability in
imposing the upper term because “victim vulnerability” is inherent in “street prostitution”
and therefore is the “functional equivalent[]” of an element of the offense pimping. A.H.,
however, was more vulnerable than the usual victim of pimping; she was vulnerable to a
special degree.
       A.H. was 13 years old and had run away from home without any money, without
packing a bag, and without any plan, when Macauley found her on a street corner in Long
Beach, demanded she get into his car, and then drove her to Los Angeles, where he set
her up to work as a prostitute. It is true that the trial court cannot use a victim’s youth,

                                               9
without more, as a “particular vulnerability” aggravating factor when, as here, the
victim’s age is an element of the offense. (See People v. Quintanilla, supra, 170
Cal.App.4th at p. 413; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694,
disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117.) But A.H.
was not only young, she was very young, and she was “defenseless, unguarded [and]
unprotected” in an unknown location far from home with unknown people and unknown
risks. The trial court could reasonably conclude that A.H.’s extremely young age,
isolation, and lack of protection, provision, and guidance from a parent or guardian
combined to make her particularly vulnerable to Macauley’s pimping. (See People v.
DeHoyos, supra, 57 Cal.4th at pp. 154-155 [court’s determination that the victim of
kidnapping for child molestation was particularly vulnerable did not rest solely on her
age where, among other things, the defendant took advantage of the victim’s location and
isolation]; People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [because the victim was
not only 81 years old but lived alone, the trial court “could reasonably, and properly, rely
on the combination of these facts to find that the victim was particularly vulnerable”];
People v. Dancer, supra, at p. 1694 [“victim’s extremely young age together with other
circumstances like the time and location of the offense can establish ‘particular
vulnerability’ as an aggravating factor”]; People v. Robinson (1992) 11 Cal.App.4th 609,
615 [“a child victim’s particular vulnerability can be used in appropriate circumstances
even if his or her age is an element of the offense”], disapproved on another ground in
People v. Scott (1994) 9 Cal.4th 331.) The special or particular vulnerability of
Macauley’s victim was a sufficient reason for the trial court to impose the upper term.
       People v. Lincoln (2007) 157 Cal.App.4th 196, on which Macauley relies, is
distinguishable. In Lincoln this court held that the trial court could not rely on the
“inherent high risk” from using a firearm to justify imposing an upper term sentence on a
firearm enhancement. (Id. at p. 203.) Noting that the trial court did not explain what the
“inherent high risk” was and that the sentencing rules did not specify “inherent high risk”
as an aggravating factor, this court concluded that “inherent high risk [was] not a proper
aggravating factor for the firearm enhancement because, by definition, any victim of an

                                             10
assault with a firearm or any victim of an offense in which a firearm was used would
have been subjected to that inherent high risk.” (Ibid.) By contrast, the sentencing rules
provide that a trial court may consider, as the trial court did here, the aggravating
circumstance that the victim was particularly vulnerable, i.e., vulnerable beyond the
definition for any victim of the offense. (See People v. Esquibel, supra, 166 Cal.App.4th
at p. 558.)


              2.     Imposition of a Consecutive Sentence for Pandering A.H.
        In addition to noting the vulnerability of the victims, the trial court observed that
the sophistication of Macauley’s crimes was “definitely great.”7 Again, the sentencing
rules specify courts may consider whether “[t]he manner in which the crime was carried
out indicates planning, sophistication, or professionalism” as a factor in imposing a
consecutive sentence. (Rule 4.421(a)(8).) This language encompasses “an exceedingly
broad range of conduct,” and only requires a level of sophistication that, “‘when
compared to other ways in which such a crime could be committed’ [citation], make[s]
the crime committed by the defendant ‘distinctively worse than the ordinary.’” (People
v. Charron (1987) 193 Cal.App.3d 981, 994; see People v. Lincoln, supra, 157
Cal.App.4th at p. 204 [“‘[a] fact is aggravating if it makes defendant’s conduct
distinctively worse than it would otherwise have been’”].)
       As the trial court pointed out, Macauley arranged for another, more experienced
prostitute to help him monitor A.H. while A.H. flagged down potential customers on the
street, he took A.H. shopping for the kind of clothes and accessories he wanted her to
wear, and he took photographs of her to sell on the internet. Macauley also had the more


7      The court also noted other circumstances identified by the sentencing rules as
aggravating factors, including Macauley’s leadership role (see rule 4.421(a)(4)) and
escalating criminal history (see rule 4.421(b)(2)). Because, as we discuss, the trial court
needed only one factor to justify the upper term on pimping and one factor to justify the
consecutive sentence for pandering A.H., we do not address the other aggravating
circumstances the trial court identified.


                                              11
experienced prostitute and another woman accompany A.H. during the shopping trip so
that A.H. could not “go anywhere,” and, before having A.H. begin work as a prostitute,
Macauley instructed her on how to determine whether a potential customer was an
undercover police officer. The crime of pandering does not require these refinements of
method. (See § 266i.) The trial court could reasonably conclude that Macauley’s
pandering exhibited a sophistication that made the crime “‘distinctively worse than the
ordinary’” when compared to other ways defendants commit such a crime. (People v.
Charron, supra, 193 Cal.App.3d at p. 994; see People v. Kurtenbach, supra, 204
Cal.App.4th, at p. 1292 [trial court did not rely on an element of arson because the crime
“plainly contains no requirement that the arson be planned in advance or involve
sophistication”].) Because the sophistication Macauley employed was sufficient to make
his pandering distinctively worse than ordinary pandering, the trial court did not err in
concluding Macauley’s sophisticated activities were not such “inherent activities
of . . . panderers in the business of sex trafficking” that they were the “functional
equivalents” of elements of pandering.


       D.     The Trial Court Did Not Prejudicially Err by Relying on the Same Factors
              To Impose Both the Upper Term for Pimping and a Consecutive Sentence
              for Pandering
       Noting that the trial court did not clearly distinguish between its reasons for
imposing the upper term for pimping and its reasons for imposing a consecutive sentence
for pandering A.H., Macauley suggests the trial court relied on the same factors for both,
and thereby violated the rule that a trial court cannot rely on the same fact to impose both
the upper term and a consecutive sentence. (See People v. Scott, supra, 9 Cal.4th at p.
350, fn. 12; rule 4.425(b)(1).) As noted, however, the trial court needed only one
aggravating factor to impose the upper term and one aggravating factor to impose a
consecutive term. (See People v. Osband, supra, 13 Cal.4th at pp. 728-729.) Because
“‘“[a] judgment or order of the lower court is presumed correct[, and a]ll intendments
and presumptions are indulged to support it on matters as to which the record is silent”’”

                                              12
(People v. Leonard (2014) 228 Cal.App.4th 465, 478), we presume the trial court relied
on A.H.’s particular vulnerability in imposing the upper term for pimping and on the
sophistication of the crime in imposing the consecutive sentence for pandering A.H.
       In any event, any error was harmless because “the court could have selected
disparate facts from among those it recited to justify the imposition of both a consecutive
sentence and the upper term, and on this record we discern no reasonable probability that
it would not have done so.” (People v. Osband, supra, 13 Cal.4th at p. 729; see People v.
Coleman (1989) 48 Cal.3d 112, 166 [“[i]mproper dual use of the same fact for imposition
of both an upper term and a consecutive term or other enhancement does not necessitate
resentencing if ‘[it] is not reasonably probable that a more favorable sentence would have
been imposed in the absence of the error’”].) Here, the trial court could correct any error
by clarifying that it relied on the victim’s particular vulnerability in imposing the upper
term for pimping and on the sophistication of the crime in imposing a consecutive
sentence for pandering A.H., and there is no reasonable probability the court would not
do so were we to remand again for resentencing.


       E.     The Trial Court Must Recalculate Macauley’s Presentence Custody Credits
              and Correct the Abstract of Judgment
       Macauley contends, the People concede, and we agree that the trial court should
have calculated Macauley’s custody credits at resentencing to include time in custody as
of the date of the resentencing, rather than as of the date of his original sentencing on
September 11, 2012. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29 [“when a prison
term already in progress is modified as the result of an appellate sentence remand, 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”].) Therefore, we remand the
matter to the trial court to award the appropriate credits and to enter a new abstract of
judgment reflecting that award.



                                             13
       We also agree with Macauley that the abstract of judgment filed on June 5, 2014
incorrectly reflects a conviction on the pimping count as to S.T. (count 1), imposition of
the upper term of eight years on that count, and a stayed sentence on the conviction for
pimping A.H. (count 2). We direct the trial court to correct the abstract of judgment to
eliminate the conviction on count 1 and to reflect the trial court’s imposition of the upper
term sentence of eight years (not stayed) on count 2. (See People v. Mitchell (2001) 26
Cal.4th 181, 188; People v. Vega (2015) 236 Cal.App.4th 484, 506 [“‘[w]here there is a
discrepancy between the oral pronouncement of judgment and the minute order or the
abstract of judgment, the oral pronouncement controls’”].)


                                      DISPOSITION


       The matter is remanded to the trial court with directions to award the appropriate
custody credits and to prepare a new abstract of judgment. The new abstract of judgment
should reflect that Macauley was not convicted on count 1 and reflect the imposition of
the upper term of eight years on count 2. The trial court is also directed to forward a
certified copy of the new abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




              SEGAL, J.


We concur:




              PERLUSS, P. J.




              ZELON, J.

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