People v. Hernandez CA4/2 ( 2024 )

Filed 1/26/24 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E080980
v. (Super.Ct.No. RIF1701765)
RAUL HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.
(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Dismissed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
1
Raul Hernandez pled guilty to multiple counts of robbery and was sentenced to 30
years eight months in prison. The trial court granted Hernandez 2,083 days of actual
custody credit and 366 days of good time conduct credit. Upon being notified by the
California Department of Corrections and Rehabilitation (CDCR) that Hernandez may
have been sentenced to more time than authorized by law, the court revised Hernandez’s
sentence but awarded no additional custody credits for the time between his original
sentencing and his resentencing. Hernandez appeals, arguing that the trial court erred by
failing to award him additional custody credits for that time. Because Hernandez did not
first present the custody credits claim in the trial court, and he raises no other issues on
appeal, we lack jurisdiction and therefore dismiss the appeal.
BACKGROUND
Hernandez pled guilty to five counts of robbery (Pen. Code, § 211; unlabeled
statutory references are to this code) and admitted personal use of a firearm as to one
count (§ 12022.53, subd. (b)). He also admitted a prior strike conviction under the three
strikes law. (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2).) The trial court
sentenced Hernandez to 30 years eight months in state prison. His sentence consisted of
the upper term of five years on the first robbery count, doubled to 10 years under the
three strikes law, plus 10 years for the firearm enhancement and two years eight months
for each of the remaining robbery counts. The court granted 2,083 days of presentence
custody credit for actual time and 366 days of good time conduct credits, for a total of
2,449 days of presentence custody credit.
2
Thereafter, the CDCR informed the trial court that Hernandez should have been
sentenced to two years (instead of two years eight months) on each of the four
subordinate robbery counts. The CDCR requested that the court review its file.
In response to the correspondence from the CDCR, the court imposed a new 28-
year term consisting of the five-year upper term for the first robbery count, doubled to 10
years for the prior strike, plus 10 years for the firearm enhancement and two years for
each of the remaining robbery counts. The resentencing minute order does not mention
custody credits. The amended abstract of judgment reflects only the credits that were
awarded at the original sentencing: 2,083 days of actual time and 366 days of conduct
credits.
DISCUSSION
Hernandez argues that the trial court erred by failing to recalculate his custody
credits at the resentencing hearing. He contends that he should have been awarded an
additional 305 days of custody credit for his time in prison between his sentencing
hearings, for a total of 2,388 days of actual custody time (plus the 366 days of conduct
credits). The People do not deny that Hernandez is entitled to the additional 305 days of
credit, but they argue that the appeal must be dismissed under section 1237.1. Hernandez
argues that section 1237.1 does not bar his appeal, because that section “expressly applies
to presentence credits only” and “does not apply to post-sentence credits.” We agree
with the People.
If a defendant is imprisoned and later resentenced, “the sentencing court must
recalculate and credit against the modified sentence all actual time the defendant has
3
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, 37 (Buckhalter).) However, under section 1237.1, “[n]o appeal shall be taken by the
defendant from a judgment of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the claim in the trial court
at the time of sentencing, or if the error is not discovered until after sentencing, the
defendant first makes a motion for correction of the record in the trial court, which may
be made informally in writing. The trial court retains jurisdiction after a notice of appeal
has been filed to correct any error in the calculation of presentence custody credits upon
the defendant’s request for correction.”
Hernandez cites Buckhalter in support of his argument that custody time between
initial sentencing and resentencing is properly characterized as “post-sentence prison
custody and not presentence jail custody.” In Buckhalter, the appellant argued that as a
result of his sentencing remand, his original “sentence was vacated in all respects, and his
status became as though he had never been sentenced. Therefore, he reason[ed], all his
time in custody until [his] resentencing was presentence custody,” making him eligible
for “all actual-time and good behavior credit available to a presentence detainee.”
(Buckhalter, supra, 26 Cal.4th at p. 28.) The court considered whether the defendant was
entitled to “earn good behavior credits under the formula specifically applicable to
persons detained in a local facility, or under equivalent circumstances elsewhere, ‘prior to
the imposition of sentence’ for a felony” or whether the defendant could earn credits
“only under the so-called worktime system separately applicable to convicted felons
4
serving their sentences in prison.” (Id. at p. 23) The court concluded that “a convicted
felon once sentenced, committed, and delivered to prison is not restored to presentence
status, for purposes of the sentence-credit statutes, by virtue of a limited appellate
remand for correction of sentencing errors.” (Ibid., italics added.) The court also held
that when “an appellate remand results in modification of a felony sentence during the
term of imprisonment, the trial court must calculate the actual time the defendant has
already served and credit that time against the ‘subsequent sentence.’ (§ 2900.1.)”
(Ibid.)
Section 1237.1 is not the type of sentence-credit statute that was at issue in
Buckhalter. Section 1237.1 codified “‘developing case law requiring defendants to seek
correction of clerical or mathematical error in calculation of presentence custody credits
in the trial court to prevent misuse of appellate process for ministerial purpose’
[Citation].” (People v. Delgado (2012) 210 Cal.App.4th 761, 765.) Thus, section 1237.1
prohibits an appeal that presents nothing more than “an error in ‘doing the math’ or . . .
an apparent oversight in an award of credits.” (Id. at p. 766.)
When the CDCR notified the trial court of the error in Hernandez’s sentence, the
court resentenced Hernandez but neglected to recalculate his custody credits. That is the
only error that Hernandez seeks to correct on appeal, and it is precisely the type of
oversight to which section 1237.1 applies. In section 1237.1, “presentence custody”
refers to any time spent in custody before imposition of the sentence against which the
time is to be credited. Hernandez is entitled to credit for all of his time in custody, but he
must first seek relief in the trial court if he has no other issue to raise on appeal.
5
(§ 1237.1.) Hernandez has not done that. Consequently, we lack jurisdiction and must
dismiss his appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
6