Filed 12/16/19 P. v. Miller CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW COPELAND MILLER,

Defendant and Appellant.

C087882

(Super. Ct. Nos. STKCRFE20130007730, SF125017A)

At a resentencing hearing conducted after we remanded in a prior appeal, the trial court declined to recalculate and credit in the new abstract of judgment defendant’s actual days in custody. Defendant Matthew Copeland Miller contends the trial court should have done so. Defendant also contends we should remand the matter to allow the trial court to exercise its discretion whether to strike a five-year serious felony enhancement. We agree with both contentions, and remand.

BACKGROUND

As recounted in our prior opinion, defendant was tried and convicted of multiple crimes arising out of an armed attempted robbery, including kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)) and attempted second degree robbery (§§ 211, 664). The jury found true an allegation defendant had one prior serious felony conviction. (§ 667, subd. (a)—hereafter § 667(a).) We reversed the kidnapping for robbery conviction and remanded for resentencing. (People v. Miller (Mar. 6, 2017, C076487) [nonpub. opn.].)

At the resentencing hearing, the trial court imposed an aggregate term of 27 years, consisting of six years for the attempted robbery conviction (the upper term doubled for the prior strike), plus a consecutive 10 years for a gun use enhancement pursuant to section 12022.53, subdivision (b), plus a consecutive six years for knowingly and maliciously attempting to dissuade a victim by force or threat (the middle term doubled for the prior strike), plus five years for the prior serious felony. The trial court imposed but stayed sentences for three other convictions pursuant to section 654.

Regarding the prior serious felony enhancement, the court said: “Now, the People also alleged and proved the nickel prior under 667(a) of the Penal Code. So the law would state and I would so follow it and believe it’s appropriate, that I would add five years on this and that would be consecutive for the commission of the nickel prior.” Regarding the gun use enhancement, the trial court alluded to Senate Bill No. 620, a recent change in law permitting courts to strike the enhancement, and explained, “I feel [the enhancement] is appropriate, . . . the facts justify [it], . . . and it’s a significant element in this case, . . . and therefore, it needs to be imposed to get a just sentence on the case.”

As for defendant’s custody credits, the trial court stated: “I’m not going to recalculate the credits because he’s already in the prison system, he’s been there for years so they already should have that down.”

DISCUSSION

The Section 667(a) Enhancement

Defendant’s first argument on appeal is that we should remand to allow the trial court to exercise its discretion whether to strike the prior serious felony enhancement in light of Senate Bill No. 1393. The People agree Senate Bill No. 1393 retroactively applies to defendant’s case, but contend we should not remand because the trial court clearly indicated it would not have dismissed this enhancement even if it had discretion to do so.

At the time defendant was sentenced, the court had no discretion to strike a section 667(a) enhancement. Senate Bill No. 1393 went into effect on January 1, 2019, and amends sections 667(a) (Stats. 2018, ch. 423, § 64), and 1385, subdivision (b) (Stats. 2018, ch. 1013, § 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes. The amendments apply retroactively to his case, which is not yet final. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472-473.)

We are not persuaded by the People’s contention that the trial court clearly indicated it would not have dismissed the enhancement even if it had discretion to do so. The trial court’s statements that the 667(a) enhancement was “appropriate,” and the gun use enhancement “needs to be imposed to get a just sentence,” in part because gun use was “a significant element in this case,” does not clearly indicate the trial court intended to impose the maximum sentence permitted. Nor does the trial court’s reference to the callousness of the crimes. (See People v. Johnson (2019) 32 Cal.App.5th 26, 69 [remanding to allow the trial court to consider whether to strike the prior serious felony enhancement “out of an abundance of caution,” because even though “the trial court was not sympathetic” to the defendant, counsel did not have the opportunity to argue the issue]; People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [a trial court’s “express[ed] [ ] intent to impose the maximum sentence permitted” would make remand to permit the trial court to exercise new sentencing discretion “an idle act”].)

Therefore, remand is appropriate in this case to allow the trial court to exercise its discretion whether to strike defendant’s prior serious felony enhancement.

Calculation of Custody Credits

Defendant’s other argument is that the trial court should have recalculated his custody credits for the time actually served up to the resentencing hearing. The People agree.

The California Supreme Court has held that section 2900.1 requires a trial court, “having modified defendant’s sentence on remand . . . to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.” (People v. Buckhalter (2001) 26 Cal.4th 20, 37, italics omitted; see also People v. Garner (2016) 244 Cal.App.4th 1113, 1118-1119.) Thus, the trial court erred by declining to recalculate defendant’s custody credits at the resentencing hearing.

The People do not contest defendant’s math, which shows defendant is entitled to an award of 1,822 days of presentence credit in addition to 41 days of original local conduct credits, for a total of 1,863 days of custody credit.

DISPOSITION

The matter is remanded so the trial court may consider exercising its discretion under Senate Bill No. 1393, and award defendant a total of 1,863 days of custody credit.

The clerk of the trial court is ordered to send a certified copy of the amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/s/

BLEASE, Acting P. J.

We concur:

/s/

ROBIE, J.

/s/

HOCH, J.