Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00531
CANTIL-SAKAUYE, J.
Defendant Jacob Kesterson appeals his sentence rendered after we remanded this case. Defendant admitted to placing his six-month-old daughter’s head face down on a couch, and punching her in the back of the head, causing serious injury. He was charged with two counts of inflicting corporal injury on a minor, with great bodily injury (GBI) enhancements for each count (Pen. Code, §§ 273d, subd. (a); 12022.7, subd. (d)).
Hereafter, undesignated statutory references are to the Penal Code.
Over the People’s objection, defendant entered into a plea agreement with the trial court in which he would plead guilty to two counts of inflicting corporal injury on a minor and admit a GBI enhancement for the first count with a maximum sentence of 11 years, provided that if defendant committed any crimes while on bail awaiting sentencing or failed to show up for sentencing, the court would impose the maximum sentence of 15 years for the two charged offenses and the two GBI enhancements. When defendant failed to show up for sentencing, the court vacated the prior order, reinstated the count two enhancement and imposed a 15-year term--an upper term of six years on count one, and an upper term of six years on the count one enhancement, plus consecutive terms of 16 months on count two and 20 months for the count two enhancement.
In the first appeal, defendant obtained a certificate of probable cause and claimed his sentence was unauthorized because he never admitted to the second GBI allegation, his Cruz waiver was invalid, and the court never advised him of his right to a jury trial and proof beyond a reasonable doubt regarding the use of sentencing factors to impose an upper term sentence. We agreed with his first contention, reversing the judgment in an unpublished opinion and remanded with the following instructions: “If the trial court chooses not to withdraw its approval of the plea agreement on the ground that a sentence cannot be imposed for a GBI enhancement with respect to count two because defendant never admitted the allegation, and if the People withdraw their objection to the plea agreement with the understanding that it will result in an aggregate sentence of 13 years and four months, the court shall reinstate the conviction and sentence on count one, reinstate the conviction and sentence on count two, reinstate the true finding and sentence on the count one GBI enhancement (for an aggregate term of 13 years and four months in state prison), and dismiss the GBI enhancement as to count two. [¶] Otherwise, defendant must be allowed to withdraw his pleas and proceed to trial on all of the charges.” (People v. Kesterson (Dec. 19, 2007, C053594, slip opn. at pp. 11-12).)
People v. Cruz (1988) 44 Cal.3d 1247.
On remand, defendant argued for the 11-year term imposed in the initial agreement, asserting a longer term would violate the rule of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], while the People supported a 13-year, four-month term. The court imposed a sentence of 13 years and four months in prison, consisting of: an upper term of six years on count one, a consecutive six-year term for the GBI enhancement in count one, and a consecutive one-year and four-month term for count two.
In the current appeal, defendant argues the court erred in failing to award credits for time served between the initial sentencing and his resentencing, his upper and consecutive terms violate Cunningham, and the trial court failed to follow our directions on remand. Agreeing with the first and third contentions, we shall remand for a recalculation of custody credits and entry of an order striking the second GBI enhancement.
I.
Defendant contends, and the People agree, that he is entitled to credit for actual days in custody between imposition of his original sentence and the trial court’s resentencing. They are correct.
“When, as here, 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.)” (People v. Buckhalter (2001) 26 Cal.4th 20, 23 (Buckhalter).)
Defendant was originally sentenced on September 1, 2006, and was awarded 157 days actual credit, plus 23 days conduct credit (Pen. Code, § 4019), for a total of 180 days. Thereafter, he was remanded into custody and began serving his sentence.
Defendant was resentenced on June 10, 2008. The court also ruled this was ordered nunc pro tunc to the date of the original sentencing so that all “other terms and conditions, including restitution, if there was any ordered, and time credits fall from that time.” Consistent with that determination, the abstract of judgment following resentencing reflects an award of 180 days of total credits. The trial court’s failure to calculate the actual number of days defendant spent in custody prior to resentencing was error.
Following imposition of his original sentence and during the period of incarceration prior to resentencing, defendant was eligible to receive credit for actual time served as determined by the trial court, and for work time credits as determined by the agency to which the defendant is committed. (§§ 2900.1 2900.5, 2933; Buckhalter, supra, 26 Cal.4th at pp. 31-34.) The trial court erred by failing to recalculate and credit the actual time defendant had served on his sentence before it was vacated. (Buckhalter, supra, at p. 37.)
In a motion for judicial notice, defendant expressed uncertainty as to whether the initial award of 180 days credit was calculated accurately, and requested this court to take judicial notice of booking records from the Sacramento County Jail. We denied the motion, but nonetheless recognize there could be additional errors in the calculation of custody credits which cannot be determined from this record. We shall therefore remand to the trial court for the limited purpose of correctly calculating all custody credits for time served up to the date defendant is sentenced on this remand.
II.
Defendant argues his upper and consecutive terms are contrary to the rule of Cunningham. In the prior appeal, we determined defendant’s upper term sentences were stipulated and therefore did not violate Cunningham. (People v. Kesterson, supra, slip opn. at p. 6.) We are bound to follow our prior decision under the law of the case. (People v. Stanley (1995) 10 Cal.4th 764, 786-787.)
Defendant’s attack on his consecutive sentences has been rejected by the California Supreme Court (People v. Black (2007) 41 Cal.4th 799, 812-813), and the United States Supreme Court (Oregon v. Ice (2009) 555 U.S. ___, ___ [172 L.Ed.2d 517, 522]).
Defendant raises these claims solely for the purpose of preserving them for federal review, and we reject them.
III.
Both parties agree that the court failed to expressly dismiss the second GBI enhancement or to include such a dismissal in the minutes or abstract. Our directions to the trial court in the first appeal were explicit: if the plea agreement was reinstated, then the trial court was to dismiss the GBI enhancement in count two. On this remand, the court shall follow our instructions and expressly dismiss the GBI enhancement in count two, and place the dismissal in the minutes.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court for the limited purpose of recalculating all the custody credits defendant has earned up to the date of resentencing on this remand. The court shall also dismiss the GBI enhancement in count two, and record the dismissal in the minutes. The trial court shall prepare an amended abstract of judgment reflecting defendant’s true custody credits and shall forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., RAYE, J.