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Name: People v. Rojas (2023) 95 Cal.App.5th 48
Case #: B325493
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 08/31/2023

When a defendant is resentenced under Penal Code section 1172.6, the trial court must calculate credit for time served. In 2022, Rojas filed a successful petition under section 1172.6, and was resentenced. On appeal he raised issues related to the number of days of credit earned and application of excess credits to fines and the parole period. Held: Remanded for calculation of credits. The trial court did not award Rojas the full amount of custody credit to which he was entitled. In the context of a resentencing under section 1172.6, a defendant should be given credit for time served. As the parties disagree on this calculation, the case was remanded so the trial court may determine the correct credits.

Petitioner is entitled to have both his restitution fine and parole revocation fine offset by his excess custody credits. At the time of this offense (5/2013), Penal Code section 2900.5 provided that excess custody credits should be applied to restitution fines at the rate of no less than $30 per day. Rojas is entitled to have both the $280 restitution fine (Pen. Code, § 1202.4) and the $280 parole revocation fine (§ 1202.45) offset by his excess custody credits. The $40 court operations assessment and the $30 conviction assessment are not punitive, however, so the excess credits do not reduce these fees.

The trial court did not err when it imposed a period of parole notwithstanding petitioner’s excess custody credits. Petitioner argued that his excess custody credits also should have precluded the court from imposing a two-year parole term. The Court of Appeal disagreed. “As a general rule, when a person is originally sentenced, excess presentence credits can reduce a period of parole.” However, section 1172.6(h) provides that the trial court may impose a period of parole of up to two years when resentencing a petitioner notwithstanding excess custody credits. In any event, this issue was not raised at resentencing and is therefore forfeited.

The trial court correctly ordered direct victim restitution. Rojas argued he should not be subject to direct victim restitution for the costs of burial, because he no longer stood convicted of killing the victim and his assaultive conduct did not cause the victim’s family economic loss. The court disagreed. “Section 1202.4, subdivision (f) requires the court to order restitution in every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” Applying tort principles of causation, Rojas’ conduct in starting a fight and summoning aid from his friends was a substantial, foreseeable factor in bringing about the victim’s death. The victim restitution award was appropriate.