People v. Jackson CA1/2 ( 2023 )

Filed 10/12/23 P. v. Jackson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent, A166273
v. (San Mateo County
LANTZ LAVELLE JACKSON, Super. Ct. No. SC080271A)
Defendant and
Appellant.
Lantz Jackson appeals from the denial of his motion to apply excess
custody credits to his period of parole. He contends the trial court erred in
concluding it lacked jurisdiction to grant the motion. We disagree and
therefore conclude the appeal must be dismissed.
BACKGROUND
In 2014, Jackson pleaded no contest to robbery (Pen. Code, § 211)1 and
admitted seven alleged prior convictions with prison terms (§ 667.5,
subd. (b)), one of which was for a serious/violent felony conviction (§ 667,
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
subd. (c)(9), 1192.7, subd. (c)(19).)2 On July 10, 2014, the trial court
sentenced him to a prison term of 13 years, consisting of three years for the
robbery, doubled to six years due to the prior serious felony conviction
(§ 1170.12, subd. (c)(1)), a consecutive five years for the section 667,
subdivision (a), enhancement,3 and consecutive one-year terms for two of the
prior prison enhancements (§ 667.5, subd. (b)). The court stayed the terms
for the remaining prison priors.
On May 18, 2022, the parties executed a “Stipulation for Recall and
Resentencing” pursuant to former section 1171.1, which had become effective
January 1, 2022 (Stats. 2021, ch. 728, § 3), and has since been renumbered
section 1172.75 (Stats. 2022, ch. 58, § 12).4 The new legislation, with an
exception not relevant here, invalidated enhancements imposed pursuant to
section 667.5, subdivision (b), prior to January 1, 2020, and provided for trial
courts to recall the sentences of and resentence affected defendants.
(§ 1172.75.) The parties stipulated that the two one-year section 667.5,
subdivision (b), enhancements must be stricken and Jackson sentenced to a
total prison term of 11 years. They further stipulated that the court should
award the original presentence credits as listed in the abstract of judgment
(actual 168, conduct 25, total 193), and that the court’s minutes and amended
2The facts of Jackson’s offense are not relevant to the issues on appeal
and need not be recited.
3 The reporter’s transcript reflects the court imposing five years for the
“667.8 prior.” This was an error either by the court or in transcription; the
court was obviously referring to the five-year section 667, subdivision (a),
enhancement that the amended information alleged, Jackson admitted and
the abstract of judgment records. The amended information did not contain
any section 667.8 allegation and section 667.8 does not provide for a five-year
enhancement.
4 This opinion will refer to the statute by its current number.
2
abstract of judgment should specify “actual post-conviction credits as 2,871
days as of May 18, 2022” and “CDCR [California Department of Corrections
and Rehabilitation] to calculate post-conviction conduct credits.” An
amended abstract of judgment was filed the same day, reflecting a total
sentence of 11 years and stating, “Credits as of 5/18/22; 2871 post-conviction[]
actual credits” and “CDCR to calculate post conviction conduct and total
credits.”
On June 27, 2022, Jackson filed a motion to apply excess credit to his
parole term. The People opposed the motion, arguing the trial court did not
have jurisdiction and, even if it did, should not exercise its discretion to
reduce the parole period. After a hearing on September 22, 2022, the trial
court denied the motion based on lack of jurisdiction. Jackson appealed.5
DISCUSSION
Jackson contends the trial court erred in failing to exercise its
jurisdiction to compute and apply custody credits at resentencing. He relies
on “the long-established rule that, in the ordinary situation of original
sentencing, excess presentence credits can reduce any period of parole.
(See In re Sosa (1980) 102 Cal.App.3d 1002.)” (People v. Morales (2016)
63 Cal.4th 399, 405 (Morales).) As Morales observed, “[a] statute expressly so
states. Section 2900.5, subdivision (a), provides that presentence custody
shall be credited toward the sentence. . . . Section 2900.5, subdivision (a),
provides: ‘If the total number of days in custody exceeds the number of days
of the term of imprisonment to be imposed, the entire term of imprisonment
5 Although his briefs provide no details, Jackson is apparently now on
parole: He asks this court to “order that he be awarded 2,871 days of
confinement credit and that any excess beyond what he served prior to his
release must be applied by CDCR to shorten his period of parole.”
3
shall be deemed to have been served.’ (Italics added.) To eliminate any
possible ambiguity, subdivision (c) of section 2900.5 provides: ‘For the
purposes of this section, “term of imprisonment” includes any period of
imprisonment imposed as a condition of probation or otherwise ordered by a
court in imposing or suspending the imposition of any sentence, and also
includes any term of imprisonment, including any period of imprisonment
prior to release on parole and any period of imprisonment and parole, prior to
discharge, whether established or fixed by statute, by any court, or by any
duly authorized administrative agency.’ (Italics added.)” (Morales, at p. 405.)
The People do not contest Jackson’s right to have excess custody credits
applied to his parole term if he has any such credits but argue the trial court
properly denied the motion because, since the abstract of judgment after
resentencing had already been filed, the court lacked jurisdiction to modify
Jackson’s sentence. “Generally, once a judgment is rendered and execution of
the sentence has begun, the trial court does not have jurisdiction to vacate or
modify the sentence. [Citations.]” (People v. Torres (2020) 44 Cal.App.5th
1081, 1084.) Moreover, the People argue that Jackson has not demonstrated
error because the record does not show he is in fact entitled to any excess
credits, and that his claim must be addressed to the prison authorities, not
the trial court, because it involves postsentence custody credits rather than
presentence credits.
Jackson contends that several statutes, “taken together,” show the trial
court erred in concluding it lacked jurisdiction over his motion. One is
section 1237.1, which requires that claims of error in calculating presentence
credits be presented to the trial court before they can be raised on appeal.
Next, Jackson maintains that section 1170, subdivision (a)(3), mandates
application of “any ‘in-custody credits’ (pre-or post-conviction)” to the parole
4
term. Additionally, Jackson points to language in section 1172.75,
subdivision (d), providing that resentencing generally “shall result in a lesser
sentence than the one originally imposed.” (§ 1172, subds. (d)(1), (d)(3).)6
None of these statutes, separately or collectively, directly address the
trial court’s jurisdiction over the motion at issue here. Sections 1170,
subdivision (a)(3), and 1172.75 do not address jurisdiction at all.
Section 1170, subdivision (a)(3), provides that where “preimprisonment
credit” is equal to or exceeds the sentence imposed, the entire sentence shall
be deemed to have been served and the defendant “shall not be actually
delivered” into custody. Jackson relies on the immediately following
statement that, “[t]he court shall advise the defendant that they shall serve
an applicable period of parole, postrelease community supervision, or
mandatory supervision . . . unless the in-custody credits equal the total
sentence, including both confinement time and the period of parole,
postrelease community supervision, or mandatory supervision.” (Italics
added.) Even if Jackson is correct in taking this language to include credit
for prison time as well as “preimprisonment” credit, it bears on his
entitlement to an offset of credit against parole, not the trial court’s
jurisdiction to order such an offset after the abstract of judgment has been
filed. With respect to section 1172.75, subdivision (d), Jackson points to
6 Jackson separately cites former section 1171.1, which was the
number assigned to the statute that is now section 1172.75 prior to its
renumbering in 2022. (Stats. 2022, ch. 58, § 12.) He also cites former
section 1171, which was renumbered section 1172.7 in 2022. (Id., ch. 58,
§ 11.) This statute invalidated sentence enhancements imposed prior to
January 1, 2018, pursuant to Health and Safety Code section 11370.2, and
contains provisions for recall of sentence and resentencing parallel to those of
section 1172.75.
5
provisions stating that resentencing “shall result in a lesser sentence than
the one originally imposed as a result of the elimination of the repealed
enhancement, unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety,” and the court is
allowed, but not required, to consider “postconviction factors.” (§ 1172.75,
subd. (d)(1), (d)(3).) Again, to the extent this language pertains to application
of excess credits to reduce a parole term, it bears on the defendant’s
substantive right, not the trial court’s jurisdiction subsequent to filing of the
abstract of judgment.
Section 1237.1 provides that “[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” and further specifies that “[t]he
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.” Jackson urges that “resentencing, as in
this case, should logically be treated the same as an original sentencing
hearing, given the decisional latitude afforded the trial court when striking
prison priors and reforming the prison term.”
Even if we assume the jurisdiction granted by section 1237.1 applies to
resentencing as well as original sentencing (the argument implied by
Jackson’s argument although not expressly elaborated), the present case is
problematic. The statute is aimed at “mathematical or clerical error” in the
calculation of presentence credits; it was intended to avoid “ ‘utilization of the
formal appellate process for a minor ministerial act.’ ” (People v. Delgado
6
(2012) 210 Cal.App.4th 761, 765-766, quoting Assem. Com. on Public Safety,
Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) p. 3.) Jackson did not
seek correction of an error in the court’s calculation of presentence credit; he
sought an order directing the CDCR to fulfill its responsibility to calculate his
post-sentence credits and, if his credits exceeded his revised term of
imprisonment, apply the excess to reduce his parole period. The parties’
stipulation did not address excess credits or the parole period, and Jackson
did not ask the court, in recalling his sentence and resentencing him, to
include any such orders to the CDCR.
The orders sought by Jackson’s motion cannot properly be
characterized as “minor ministerial acts.” The application of excess credits to
reduce a period of parole, expressly required by section 2900.5 in the context
of original sentencing and presentence credit, is not necessarily the rule after
resentencing. For example, where the legislation providing for resentencing
indicates a period of parole is to follow the reduced sentence, excess credits
will not be applied to the period of parole. (Morales, supra, 63 Cal.4th at
p. 403 [excess credits not applied to reduce parole period after resentencing
under section 1170.18 (Prop. 47)]; People v. Lamoureux (2020) 57 Cal.App.5th
136, 145 (Lamoureux) [trial court not required to “automatically” apply excess
credits to offset parole period after resentencing under section 1170.95
(Sen. Bill No. 1437 (2017-2018 Reg. Sess.))]; People v. Wilson (2020)
53 Cal.App.5th 42, 46 (Wilson) [trial court not required to “mechanically”
apply excess credits to parole period after section 1170.95 resentencing].)7 In
7 Morales focused on the difference in language between
section 2900.5, which states both that “the person is entitled to credit for time
served” and that “the credit can reduce or eliminate the period of parole,” and
section 1170.18, subdivision (d), which states that “the person is to receive
7
the present case, although the People now agree that Jackson would be
entitled to offset excess credits against his parole period if he in fact has
excess credits, in the trial court the People opposed Jackson’s motion on the
merits as well as on jurisdictional grounds. Jackson’s motion sought orders
that would require a judicial determination, not just a ministerial act within
the purview of section 1237.1.
The fact that the motion sought application of potential postsentence
conduct credits is critical for another reason. As Jackson’s motion (and the
parties’ stipulation) implicitly acknowledged,8 unlike presentence credits,
which are calculated by the trial court at the time of sentencing, postsentence
credit for time served and is subject to parole.” (Morales, supra, 63 Cal.4th at
p. 406.) The court concluded that the “electorate was informed, and it
intended, that a person who benefitted from [Proposition 47] by receiving a
reduced sentence would be placed on parole for one year after completion of
the reduced sentence, subject to the court’s discretion to release the person
from that parole.” (Id. at p. 403.) Morales observed that “if excess credits can
reduce or eliminate the period of parole, the court’s discretion will be
curtailed or eliminated.” (Id. at p. 405.) Morales also found that “[t]he
purpose behind section 2900.5—to equalize treatment of those who can and
those who cannot post bail—is irrelevant” in the resentencing context. (Id. at
p. 408.)
Lamoureux and Wilson interpreted section 1170.95, subdivision (g),
which similarly provides that the resentenced person “shall be given credit
for time served” but also authorizes the trial court to order that the person be
“subject to parole supervision for up to three years following the completion of
the sentence.” Both applied Morales’s reasoning in concluding trial courts
were not required to apply excess credits to reduce the parole period.
(Lamoureux, supra, 57 Cal.App.5th at pp. 142-145; Wilson, supra,
53 Cal.App.5th at pp. 48-53.)
8 As earlier indicated, the stipulation called for, and the amended
abstract of judgment provided, an award of the same presentence credits as
stated in the original abstract of judgment (actual and conduct) as well as
actual post-conviction credits, but for the CDCR to calculate post-conviction
conduct credits.
8
conduct credits must be calculated by CDCR. (People v. Mendoza (1986)
187 Cal.App.3d 948, 954 (Mendoza); see People v. Buckhalter (2001)
26 Cal.4th 20, 30-31.)9 Accordingly, “[t]he defendant must exhaust all
administrative remedies before seeking review” of a claim for worktime
credits and, if a dispute remains, then seek relief by means of a petition for
writ of habeas corpus. (Mendoza, at pp. 954-955.)
Jackson did not make any showing that he had exhausted all
administrative remedies. Defense counsel told the court at the hearing that
CDCR had “imputed the credits” but stated, “with all my attempts in trying
to contact, for example, the parole department, the parole department has
not responded back to me when asked why isn’t the excess credit being
applied.” Aside from this statement about “informal” requests, the record
does not reflect what steps, if any, were taken to have the issue dealt with
administratively, or why further efforts would be futile. Jackson’s assertion
that he “cannot be tasked with both complying with parole terms and
continuing to knock on various administrative doors of bureaucracy to get
that to which he is entitled” does not suffice. And, in any event, even if
Jackson had shown he followed applicable procedures for having his claim
addressed by CDCR, this would not confer jurisdiction on the trial court to
entertain the postjudgment motion he filed.
9 “Presentence credit evaluation requires factual findings based on
information uniquely under the control of the trial courts. Trial courts do not
have the same information available to calculate postsentence credits. Such
information is determined by the prison authorities. One-for-one worktime
credits must be calculated initially by the prison authorities who are
authorized to grant them in the first instance.” (Mendoza, supra,
187 Cal.App.3d at p. 954.) The resentencing trial court must, however,
calculate the defendant’s actual postsentence custody credits. (People v.
Buckhalter, supra, 26 Cal.4th at p. 23; § 2900.1.)
9
Jackson asks us to construe his appeal as a petition for writ of habeas
corpus if we determine his claim can only be pursued by such means. (See
Mendoza, supra, 187 Cal.App.3d at p. 955.) We decline to do so. Jackson’s
motion did not assert, much less show, he in fact had any excess credits. The
motion simply argued that “[w]hatever credits beyond 11 years that the
defendant completed should be applied to his parole term” and, at the
hearing, defense counsel asked the court to order CDCR to “re-calculate the
credits and, if there are any, apply the excess credits” toward the parole term.
(Italics added.) Jackson’s reply brief in this court asserts that, “on the face of
things, [he] may be entitled to termination of parole right now.” (Italics
added.) Absent any showing that Jackson in fact has excess credits to be
applied to his parole term or has exhausted administrative procedures for
obtaining the relief he seeks, treating his appeal as a writ petition is
unwarranted.
The trial court correctly determined that it lacked jurisdiction over
Jackson’s motion. “If the trial court does not have jurisdiction to rule on a
motion to vacate or modify a sentence, an order denying such a motion is
nonappealable, and any appeal from such an order must be dismissed.
[Citations.]” (People v. Torres, supra, 44 Cal.App.5th at p. 1084.)10
DISPOSITION
The appeal is dismissed.
10The People’s brief argues this appeal should be dismissed because it
was taken from an unappealable order, then in its “conclusion” asserts the
judgment should be affirmed. Under the rule stated in the text, dismissal is
the appropriate action.
10
STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
People v. Jackson (A166273)
11