People v. Titterington CA3 ( 2014 )

Filed 8/28/14 P. v. Titterington 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C075674
Plaintiff and Respondent, (Super. Ct. No. 11F00178)
v.
DENNIS EUGENE TITTERINGTON,
Defendant and Appellant.
Defendant Dennis Eugene Titterington appeals from resentencing after remand,
contending his credit award is deficient. We agree and will modify the judgment.
BACKGROUND
A jury found defendant guilty of three counts of lewd and lascivious acts on a
child under the age of 14 years (counts 1 through 3; Pen. Code, § 288, subd. (a)),1 and
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1 Further undesignated statutory references are to the Penal Code.
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one count of oral copulation on a child under the age of 10 years (count 5; § 288.7, subd.
(b)). (People v. Titterington (Aug. 20, 2013, C069994) [nonpub. opn.] slip. opn. p. 1.)
The trial court sentenced him to an indeterminate term of 15 years to life on count 5, plus
an aggregate determinate term of 12 years on counts 1 through 3. (Id. at p. 2.) On
appeal, we reduced count 5 to a violation of section 288a, subdivision (c)(1) and
remanded for resentencing on all counts. (Id. at pp. 3-7.) On remand, the trial court
resentenced defendant to an aggregate term of 14 years in state prison. Defendant asked
for 1,063 days of actual credit and 159 days of conduct credit. The People protested
(incorrectly, as we discuss post) that defendant was only entitled to six additional days of
actual credit and that anything more was “within the purview of the Department of
Corrections to determine.” The court awarded defendant an additional six days of actual
custody credit for the time defendant had spent in local custody pending resentencing,
adding the six days to the total of 310 days credited defendant at the time of his first
sentencing, for a total of 316 days of actual credit.2 Defendant timely appeals.
DISCUSSION
Defendant contends he is entitled to additional actual custody credit for the time
period between his 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.
Defendant adds that he was entitled to the additional six days of conduct credit appearing
in the abstract of judgment. The People disagree, as do we.
A defendant “sentenced to prison for criminal conduct is entitled to credit against
his term for all actual days of confinement solely attributable to the same conduct.”
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2 The resulting abstract of judgment reflects the six additional actual credit days ordered
as well as six additional conduct credit days (despite the fact that the court did not orally
order conduct credit) for a total of 52 days of conduct credit (46 original plus 6 at
resentencing).
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(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.)
However, a defendant is not entitled to presentence conduct credit for the time
spent in county jail awaiting the remand hearing. (Buckhalter, supra, 26 Cal.4th at
p. 40.) Thus “under 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,
emphasis added.)
Defendant is entitled to an award of actual custody credit for the period of his
incarceration between his original sentencing hearing and resentencing. The parties agree
that the correct number is 1063 actual days. We will modify the judgment (§ 1260) to
reflect 1063 days of actual custody credit. We will also remove the additional six days of
conduct credit, added to the abstract in the absence of oral order (see fn. 2, ante) and
contrary to legal authority, as we have described.
These modifications result in a credit award of 1063 actual and 46 conduct credit
days. We order the abstract amended accordingly.
Defendant also notes two errors in the amended abstract of judgment: (1) the
hearing date is incorrectly listed as November 18, 2011, when it should show the correct
date of December 10, 2013; and (2) count 5 is misidentified as a violation of
section 288.7, subdivision (b), when it should show a violation of section 288a,
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subdivision (c)(1). The People agree those errors require correction. We order those
corrections made.
DISPOSITION
The judgment is modified to award custody credits as described in this opinion
and otherwise affirmed. The trial court is directed to prepare an amended and corrected
abstract of judgment as described in this opinion and to forward a certified copy thereof
to the Department of Corrections and Rehabilitation.
DUARTE , J.
We concur:
BUTZ , Acting P. J.
MAURO , J.
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