People v. Hawes

Full title: THE PEOPLE, Plaintiff and Respondent, v. TERRY RAY HAWES, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Sep 27, 2012

A134359 (Cal. Ct. App. Sep. 27, 2012)

Opinion

A134359

09-27-2012

THE PEOPLE, Plaintiff and Respondent, v. TERRY RAY HAWES, Defendant and Appellant.

Marchiano

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Marin County

Super. Ct. No. 143294A)

In defendant Terry Ray Hawes's prior appeal¹ we reversed and remanded the matter to the trial court for resentencing and correction of the abstract of judgment. On remand, the court resentenced defendant to a total term of 27 years eight months to life in state prison. However, the court failed to calculate and credit defendant with time served in the California Department of Corrections and Rehabilitation (CDCR) between his original sentencing date and the resentencing date. Defendant timely appeals, citing the court's oversight as error, and the Attorney General agrees.

1 We take judicial notice of our prior unpublished opinion in People v. Hawes, A127151, filed September 29, 2011. (Evid. Code, § 452, subd. (d).)

We accept the Attorney General's concession. "[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, 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.) Since the duty to calculate credits lies with the sentencing court (id. at pp. 23, 29, 41), the proper remedy is to remand to the sentencing court with directions to calculate defendant's time spent in custody between his original sentencing and his resentencing, and to amend the abstracts of judgment accordingly.

DISPOSITION

The judgment is reversed and matter is remanded to the trial court. The court shall calculate defendant's time spent in custody between his original sentencing and his resentencing, amend the determinate and indeterminate abstracts of judgment to reflect that credit, and transmit the amended abstracts to the CDCR.

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Marchiano, P.J.
We concur: ______________
Dondero, J.
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Banke, J.