People v. McNorton CA2/6 ( 2024 )

Filed 4/2/24 P. v. McNorton CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B327276
(Super. Ct. No. 18CR11070)
Plaintiff and Respondent, (Santa Barbara County)
v.
DEJUAN ANTHONY
MCNORTON,
Defendant and Appellant.
Dejuan Anthony McNorton1 appeals from a resentencing
order pursuant to Penal Code2 section 1172.75. McNorton
contends, and the Attorney General concedes, that upon
1 The record on appeal includes three different spellings of
McNorton’s first name. We will use the spelling used in the
California Department of Corrections and Rehabilitation records
and the appellant’s briefs.
2 Further unspecified statutory references are to the Penal
Code.
resentencing, the trial court erred in delegating recalculation of
McNorton’s custody credits to the California Department of
Corrections and Rehabilitation (CDCR). We agree and reverse.
FACTS AND PROCEDURAL HISTORY
In August 2019, McNorton pleaded no contest to
kidnapping. (§ 207.) He also admitted one prior strike allegation
(§§ 667, subds. (b)-(i), 1170.12) and two prior prison term
allegations (§ 667.5, subd. (b)). The trial court sentenced him to
12 years in state prison (middle term of five years for kidnapping,
doubled for the prior strike, plus two consecutive one-year terms
for the prior prison enhancements).
After he was sentenced, the Legislature passed section
1172.75, which provides: “Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of
Section 667.5 . . . is legally invalid.” (§ 1172.75, subd. (a).)
In March 2023, the trial court recalled McNorton’s sentence
pursuant to section 1172.75. It struck the two invalid prior
prison term enhancements (§ 667.5, subd. (b)) and resentenced
McNorton to 10 years in state prison. The court issued an
amended abstract of judgment directing the CDCR “to
re-calculate credits.”3
DISCUSSION
McNorton contends, and the Attorney General concedes,
that the trial court erred in delegating recalculation of
McNorton’s custody credits to the CDCR and that the court
should have calculated his custody credits. We agree.
3 We grant McNorton’s unopposed request for judicial
notice of the CDCR list and related email correspondence
identifying McNorton as an individual eligible for recall and
resentencing pursuant to section 1172.75.
2
“It is the duty of the court imposing the sentence to
determine the date or dates of any admission to, and release
from, custody prior to sentencing and the total number of days to
be credited pursuant to this section. The total number of days to
be credited shall be contained in the abstract of judgment.”
(§ 2900.5, subd. (d).)
“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.) “[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, italics added (Buckhalter).)
Here, McNorton’s original sentence was recalled and he
was resentenced pursuant to section 1172.75. Upon
resentencing, the trial court, and not the CDCR, was required to
calculate his actual custody credits. (Buckhalter, supra, 26
Cal.4th at p. 29.) Accordingly, we remand the matter with
direction to the trial court to recalculate McNorton’s custody
credits for actual time served.
DISPOSITION
The March 8, 2023, order directing the CDCR to recalculate
custody credits is vacated. The matter is remanded to the trial
court with directions to recalculate McNorton’s custody credits for
actual time served. The clerk of the court shall thereafter
3
prepare a new abstract of judgment with the trial court’s
recalculation of actual custody credits.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P. J.
CODY, J.
4
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
John Derrick, 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, William H. Shin and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.