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Name: People v. Johnson
Case #: H023838
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/17/2003
Subsequent History: Mod. on den. of rehrg. on 2/13/03; Rev. granted 4/23/03

Defendant is entitled to conduct credit for confinement through date of resentencing following recall of initial sentence. Here the trial court modified the sentence and redetermined credits after CDC alerted the court that the previously imposed Three Strikes sentence was unauthorized. It was the third time that the court had amended the abstract of judgment. Addressing the credits, this time the court awarded too many actual days of custody credit and awarded no days of local conduct credit under Penal Code section 4019. Under People v. Buckhalter (2001) 26 Cal.4th 20, the Supreme Court has held that “a convicted felon who has once been sentenced, committed, and delivered to prison, who received all credits for confinement prior to the original sentencing, and who remains behind bars pending an appellate remand solely for correction of sentencing errors, is not eligible to earn additional credits for good behavior as a presentence detainee.” (Id. at p. 29.) It stated: “Neither the language nor the purposes of the credit laws oblige the trial court, on remand, to award good behavior credits applicable only to custody which precedes any sentence, commitment, and delivery to prison. On the contrary, once a convicted felon has been so sentenced, committed, and delivered, he remains, pending a remand solely on sentencing issues, a prisoner in the custody of the Director under the original commitment, even during periods when he is temporarily housed away from state prison to permit his participation in the remand proceedings. Hence, the inmate’s accrual of term-shortening sentence credits can arise only under laws and rules specifically applicable to prisoners in the Director’s custody.” (Id. at p. 29-30.) The defendant is not entitled to section 4019 credits for his time in CDC; a state prison is not a facility specified in section 4019. Nor could he earn them while back in county jail, even though physically housed there upon temporary removal. The temporary removal does not “transform him from a state prisoner to a local presentence detainee” (id. at p. 33), disapproving Chew insofar as it was inconsistent with its conclusions. Thus, it awarded prison worktime credits for all confinement in CDC’s custody, but not presentence good behavior credits under section 4019. However, in a footnote in Buckhalter, the Supreme Court expressly left open the question presented here: whether section 4019 presentence credits must be awarded for time spent in prison before resentencing following a trial court’s recall of a sentence (Pen. Code, sec. 1170, subd. (d)). (Buckhalter, at p. 40, fn. 10.) Following an extended statutory interpretation of sections 4019 and 1170, subdivision (d), this court answers that question. It concludes that retroactively treating prison time as presentence confinement time in a local facility does not advance the distinct purposes of the separate credit systems. CDC will provide defendant with any further credit, beyond actual days, to which he may be entitled while in prison prior to recall. Thus, the case was remanded to recalculate the credits for confinement in a designated facility as provided by section 4019, but no 4019 credit for the time he was in the actual or constructive custody of CDC.