People v. Fitch CA4/1 ( 2024 )

Filed 2/8/24 P. v. Fitch CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081565
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1502606)
JUSTIN DANIEL FITCH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Mark E. Johnson, Judge. Reversed and remanded with directions.
William J. Capriola, 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, A.
Natasha Cortina and Elizabeth M. Renner, Deputy Attorneys General, for
Plaintiff and Respondent.
In 2020, Justin Daniel Fitch was convicted of assault on a child under
the age of eight resulting in a comatose state (Pen. Code § 273ab, subd. (b);1
count 1); child abuse likely to produce great bodily injury (§ 273a, subd. (a);
count 2); sexual penetration of a child age 10 or younger (§ 288.7, subd. (b);
count 3); torture (§ 206, count 4); and misdemeanor resisting a peace officer (§
148, subd. (a)(1); count 5). As to count 2, it was also alleged that Fitch
personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).
He received a sentence of nine years plus 29 years to life in prison.
In 2022, this Court affirmed Fitch’s convictions but remanded for
resentencing under the newly-amended version of section 1170, with
additional directions to stay the sentence for his torture conviction on count 4
pursuant to section 654. (People v. Fitch (July 5, 2022, D078987 (Fitch I))
[nonpub. opn.].)
In 2023, the court resentenced Fitch to seven years plus 22 years to life
in prison. The court calculated the sentence as follows: the middle term of
four years on count 2, plus three years for the great bodily enhancement, plus
consecutive indeterminate terms of seven years to life on count 1, plus 15
years to life on count 3, and a concurrent 180-day jail term on count 5. The
court also imposed and stayed a seven years to life sentence on count 4.
Credits were ordered “to remain as previously ordered.”
Fitch now raises two issues on appeal: first, that the trial court should
have calculated his actual custody credits between his original sentencing
date and his resentencing date; and second, that the trial court erred by
imposing sentences of “seven years to life” instead of life with the possibility
of parole for his convictions on counts 1 and 4. The Attorney General argues
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
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that Fitch is correct on the first issue and wrong on the second issue. We
agree. We conclude that Fitch is entitled to the actual custody credits that he
served between his original sentencing date and his resentencing date. We
also conclude that the trial court properly included the minimum term of
confinement, seven years, before Fitch is eligible for parole. Accordingly, we
remand for the limited purpose of recalculating custody credits and otherwise
affirm.
STATEMENT OF FACTS
In our 2022 unpublished opinion (D078987) on Fitch’s direct appeal, we
set forth the underlying facts of his convictions:
On April 19, 2015, Fitch babysat Doe, the son of R.H., an old high
school friend. When Fitch returned Doe to R.H., he showed her a
bruise on Doe’s chest, saying it must have happened the previous
day, when R.H. had taken Doe to a trampoline park, or from
Doe’s car seat. R.H. doubted those explanations.
On April 23, 2015, R.H. asked Fitch to babysit Doe from 1:00 p.m.
to 4:00 p.m. and Fitch agreed. When R.H. dropped Doe off at
Fitch’s residence at around 12:30 p.m., Doe cried and appeared
like he did not want to be with Fitch. R.H. left for work and a
few minutes later, Fitch sent her a text message indicating that
in “25 seconds” Doe had stopped crying. He included a
photograph depicting Doe in good spirts.
Approximately one hour later, Fitch sent R.H. a text message and
attached a photograph of Doe with his hair in disarray, wearing
no clothing, and sitting near two piles of vomit. Fitch testified
that at one point Doe started moving “robotically”; therefore,
Fitch dialed 911 at 2:59 p.m. But he hung up the phone, claiming
he thought it better to speak to R.H. first. Fitch later informed
R.H. that Doe appeared to be sick, but afterwards he informed
her that Doe was fine.
Fitch asked J.B., an acquaintance, to stop by his house to check
on Doe. She arrived at Fitch’s residence at approximately 4:00
p.m. and observed Doe on the living room couch. She advised
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Fitch that Doe needed immediate hospital care. She observed
that Doe was limp and having difficulty breathing when Fitch
lifted him off the couch. She instructed Fitch to call 911
immediately. Fitch responded that Doe was getting better, so he
was not going to take him to the hospital. At 4:18 p.m., R.H.
instructed Fitch to take Doe to her aunt’s house. Fitch stated he
would do so shortly.
Fitch called 911 again at approximately 6:30 p.m. At around 6:40
p.m., the sheriff’s department and emergency medical personnel
were dispatched to appellant’s house. They found Doe with
lethargy, a fixed gaze, low level of consciousness, high heart rate,
trouble breathing, and a fresh circular bruise on his chest.
Because of Doe’s poor condition, they quickly treated him at the
scene and transported him to a regional medical center. Around
this time, Fitch called R.H. and told her that Doe was being
taken to the emergency room. He had not previously informed
her about Doe’s serious and deteriorating condition.
Physicians diagnosed Doe with three main groups of injuries: (1)
abusive head trauma, significant brain injury and hemorrhage,
retinal hemorrhages, and seizures, (2) a punctured anus, rectum
and mesentery, and (3) a fresh, raised circular mark on his chest.
Doe underwent surgery to repair the punctures to his rectum and
mesentery. Doe was in a coma for one month. His injuries have
left him developmentally-disabled physically and mentally.
On April 24, 2015, Moreno Valley Police arrested Fitch and
transported him to a police station, where he tried to commit
suicide and became combative and resistant. Police used a taser
device to detain him. They removed his prosthetic leg and noted
a circular button on the knee portion of the prosthetic leg that
appeared to match a photograph of the bruises on Doe’s chest.
DISCUSSION
A. The Trial Court Erred in Failing to Recalculate Fitch’s Post-
Sentence Credits on Remand
At Fitch’s initial sentencing hearing held in January 2021, the trial
court awarded him 2,424 days credit for time served, including 2,108 actual
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days plus 316 days of conduct credit under section 2933.1. At the
resentencing hearing in February 2023, the court did not recalculate Fitch’s
custody credits. The court was initially unsure if it “ha[d] to calculate the
credits,” but decided against it after the clerk did “some research” on the
issue and “found out that you only have to do that if the remittitur said you
made a mistake on credits.” Thus, the abstract of judgment issued after the
resentencing reflected the same actual credits as the original abstract of
judgment.
Fitch had a legal right to the calculation of the actual time he spent in
custody. “The sentencing court is responsible for calculating the number of
days the defendant has been in custody before sentencing and for reflecting
the total credits allowed on the abstract of judgment.” (People v. Black (2009)
176 Cal.App.4th 145, 154; § 2900.1.) Therefore, the matter should be
remanded to calculate all of Fitch’s custody credits, and an amended abstract
of judgment should be issued. (See People v. Buckhalter (2001) 26 Cal.4th 20,
37.)
B. The Trial Court Properly Imposed a Term of “Seven Years to Life”
on Count 1 and an Identical But Stayed Term For Count 4
Fitch also argues that the trial court erred by sentencing him on counts
1 and 4 to a term of “seven years to life.” He contends that the “correct
sentence for each crime is an indeterminate term of life in prison with the
possibility of parole.” Seven years relates to his minimum parole eligibility,
which, Fitch asserts, “is not a minimum term.”
Because Fitch did not object on this ground during his sentencing
hearing, this argument is forfeited. (See People v. Scott (1994) 9 Cal.4th 331,
353 [“the waiver doctrine should apply to claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing choices”].)
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“Although the court is required to impose sentence in a lawful manner,
counsel is charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing. Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s
attention. As in other waiver cases, we hope to reduce the number of errors
committed in the first instance and preserve the judicial resources otherwise
used to correct them.” (Ibid.) Despite Fitch’s argument to the contrary, this
is not a situation where the sentence “could not lawfully be imposed under
any circumstance in the particular case.” (Id. at 354.) Indeed, his
indeterminate life sentence was statutorily required to have a minimum term
of seven years regardless of how the trial court characterized the sentence.
Accordingly, Fitch’s argument is forfeited.
Moreover, even if Fitch had not forfeited this argument, it would fail on
the merits. While it might be more precise to describe the minimum term of
confinement as the minimum parole eligibility period, it was not clearly error
for the trial court to characterize it as a minimum term of imprisonment. In
addition, we agree with People v. Jefferson (1999) 21 Cal.4th 86 (Jefferson),
that describing the minimum parole eligibility period as a minimum prison
term accurately communicates the import of Fitch’s sentence in a
straightforward way that may be more easily understood by those who are
not criminal law specialists. (Id. at p. 101, fn. 3.) Accordingly, there is no
error in the stated counts 1 and 4 sentence of “seven years to life.”
DISPOSITION
The order is reversed, and the matter is remanded. The trial court is
directed to recalculate Fitch’s actual days in custody between the original
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sentencing and resentencing and to issue an amended abstract of judgment
with the correct custody credit. The order is otherwise affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
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