People v. Tatum CA3 ( 2021 )

Filed 4/15/21 P. v. Tatum 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Lassen)
----
THE PEOPLE,
Plaintiff and Respondent, C091925
v. (Super. Ct. No. CH037474)
VICTOR TATUM,
Defendant and Appellant.
Appointed counsel for defendant Victor Tatum asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will affirm
defendant’s convictions but remand the matter to the trial court for recalculation of
presentence credit.
I
Defendant was serving a four-year prison sentence for an assault conviction in
case No. CH034001 (the assault case) when, on April 2, 2019, he possessed a weapon
(a sharp instrument) while incarcerated. The People charged defendant in case
No. CH037474 with custodial possession of a weapon (Pen. Code, § 4502, subd. (a))1
(the custodial weapon case). It was further alleged that defendant had a prior strike
1 Undesignated statutory references are to the Penal Code.
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conviction (§ 667, subds. (b)-(i)). Defendant pleaded guilty as charged and admitted the
prior strike conviction. The trial court sentenced defendant to two years in the custodial
weapon case, to run consecutive to the prison sentence defendant was already serving in
the assault case, and imposed minimum restitution and parole revocation fines. The trial
court did not award defendant presentence credit in the custodial weapon case and did not
discuss credit for the assault case. Defendant did not obtain a certificate of probable
cause.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
After reviewing the record, we will affirm defendant’s convictions but remand the
matter to the trial court for recalculation of presentence credit. Rule 4.452(a) of the
California Rules of Court provides: “If a determinate sentence is imposed under
section 1170.1[, subdivision] (a) consecutive to one or more determinate sentences
imposed previously in the same court or in other courts, the court in the current case must
pronounce a single aggregate term, as defined in section 1170.1[, subdivision] (a), stating
the result of combining the previous and current sentences.”2 In accordance with that
2 Section 1170.1, subdivision (a) provides in part: “Except as otherwise provided by
law, and subject to Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same or by a different court, and a consecutive term
of imprisonment is imposed under Sections 669 and 1170, the aggregate term of
imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1.”
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rule, when a trial court resentences under section 1170.1, subdivision (a), it must
calculate the credit for the earlier case. (People v. Phoenix (2014) 231 Cal.App.4th 1119,
1126; People v. Lacebal (1991) 233 Cal.App.3d 1061, 1065-1066; People v. Saibu
(2011) 191 Cal.App.4th 1005, 1012-1013 [the sentencing court is required to determine
both the presentence custody credit and also the actual days the defendant served in
prison custody on the earlier case when imposing consolidated sentences under California
Rules of Court, rule 4.452].)
Pursuant to section 2900.5, when a defendant has been in custody for a felony
conviction, including any time spent in a jail or prison, he is entitled to credit on his
term of imprisonment for all days of custody. (§ 2900.5, subd. (a).) In addition,
section 2900.1 provides: “Where a defendant has served any portion of his sentence
under a commitment based upon a judgment which judgment is subsequently . . .
modified during the term of imprisonment, such time shall be credited upon any
subsequent sentence he may receive upon a new commitment for the same criminal act or
acts.”
Here, the trial court properly determined that defendant is entitled to zero credit in
the custodial weapon case. (People v. Bruner (1995) 9 Cal.4th 1178, 1180 [a defendant
is not entitled to presentence custody credit when he is charged with a crime while
already incarcerated and serving a sentence on a separate, earlier crime].) But the trial
court did not address credit in the assault case on which defendant was incarcerated when
resentenced. Under section 1170.1 and California Rules of Court, rule 4.452, the trial
court was required to consider credit in both cases.
Accordingly, we will remand the matter to the trial court.
DISPOSITION
Defendant’s convictions are affirmed, and the matter is remanded to the trial court
for recalculation of presentence credit in case Nos. CH034001 and CH037474. If the
award of presentence credit is modified, the trial court shall prepare an amended abstract
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of judgment and forward a certified copy of the amended abstract to the Department of
Corrections and Rehabilitation.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
KRAUSE, J.
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