People v. Mulato CA5 ( 2023 )

Filed 6/30/23 P. v. Mulato CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085148
Plaintiff and Respondent,
(Super. Ct. No. CRF55581)
v.
MARTIN F. MULATO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
The convictions in this case arose out of a fight in state prison in 2017, during
which defendant Martin F. Mulato and another inmate attacked a third inmate.1
Defendant appeals following remand of this matter to the trial court to conduct a full
resentencing hearing. Defendant claims that this matter must again be remanded to the
trial court for recalculation of his actual custody credits and that the abstract of judgment
must be corrected to reflect imposition of a great bodily injury (GBI) enhancement
pursuant to Penal Code section 12022.7, subdivision (a), rather than subdivision (i).2 The
People concede error with respect to both claims.
For the reasons set forth below, we remand the matter to the trial court to
recalculate defendant’s actual custody credits through the date of the 2022 resentencing
hearing.3 The trial court shall then issue an amended abstract of judgment with the
updated custody credits and correction of the enhancement to subdivision (a) of
section 12022.7. We also direct the trial court to correct the date of the hearing in the
caption to reflect the date of the resentencing hearing in 2022 and to reflect that the 2022
hearing was a resentencing following appeal. The judgment is otherwise affirmed.
PROCEDURAL BACKGROUND
Defendant was charged with two felonies, assault by a prisoner with a deadly
weapon (fists) and with force likely to produce GBI, with an attached sentence
enhancement for personal infliction of GBI (count 1), and battery with infliction of
serious bodily injury (count 2). (§§ 4501, 12022.7, subd. (a), 243, subd. (d).) The
1 We take judicial notice of the record from defendant’s prior appeal and our opinion in
People v. Mulato (May 10, 2022, F081891) [nonpub. opn.] (Mulato I). (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).) The claims raised in this appeal do not involve the underlying facts
and we need not further summarize them.
2 All further statutory references are to the Penal Code.
3 As noted below, the reporter’s transcript and the clerk’s minute order are in conflict with
respect to the date.
2.
information also alleged that defendant suffered one prior serious or violent felony
conviction within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d).)
On the morning of trial, defendant entered an open plea of guilty to counts 1 and 2,
and he admitted the sentence enhancement and prior strike conviction as charged. The
trial court subsequently purported to grant defendant’s Romero4 motion under former
section 1385, but its ruling expressly struck the GBI enhancement punishment under
section 12022.7. Approximately one month later, the trial court sentenced defendant to
the middle term of four years on count 1, plus an additional three years for the GBI
enhancement. On count 2, the court imposed the middle term of three years, to run
concurrently with the term on count 1. The court also imposed a restitution fine of
$2,700 under section 1202.4, subdivision (b)(1), and a parole revocation restitution fine
of $2,700 under section 1202.45, subdivision (a), suspended.
Defendant advanced one claim on appeal. Relying on the decision in People v.
Dueñas (2019) 30 Cal.App.5th 1157, he argued that his trial counsel’s failure to object to
imposition of the restitution fine and parole revocation restitution fine constituted
ineffective assistance of counsel and that the error was prejudicial. The People responded
that defendant had shown neither error nor prejudice.
This court determined that the record reflected several errors not raised by the
parties. As explained in Mulato I, the trial court expressly struck the punishment for the
GBI enhancement under section 12022.7, but later imposed the three-year enhancement;
the court failed to double defendant’s base term under the Three Strikes law after it
mistakenly recalled it previously struck the prior felony conviction; and the court
imposed a concurrent term on count 2 instead of imposing and staying the sentence under
section 654, former subdivision (a). (Mulato I, supra, F081891.) The errors resulted in
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.
3.
an unauthorized sentence (People v. Smith (2001) 24 Cal.4th 849, 852; accord, People v.
Mendez (2019) 7 Cal.5th 680, 716), and we vacated the sentence and remanded the
matter for a full resentencing (People v. Buycks (2018) 5 Cal.5th 857, 893). We directed
the trial court to clarify its discretionary sentencing choices under section 1385 and
impose a sentence consistent with those choices, and to impose and stay the sentence on
one of the counts under section 654, as amended by Assembly Bill No. 518, effective
January 1, 2022. (Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518).)
We also noted that the record failed to specify whether defendant pleaded guilty to and
was sentenced on section 4501, subdivision (a), assault with a deadly weapon, or section
4501, subdivision (b), assault with force likely to produce GBI, and we left the issue for
the parties and the trial court to address in the first instance on remand.5 Given the
necessity of a full resentencing, we concluded that defendant’s claim that his counsel was
ineffective for failing to object to imposition of the restitution and parole revocation
restitution fines was moot and we declined to reach it.
On remand, the trial court held a resentencing hearing. The hearing reflects that
defendant’s prior strike conviction was stricken. With respect to count 1, the court
imposed the middle term of four years for violation of section 4501, subdivision (b), plus
three years for the GBI enhancement, for a total determinate term of seven years. On
5 As we explained in Mulato I (Mulato I, supra, F081891), in the trial court, the matter was
treated broadly as a conviction for violating section 4501 and while the two subdivisions carry
the same sentencing triad of two, four, or six years, they are different offenses and violation of
subdivision (a) of section 4501 is a serious felony within the meaning of the Three Strikes law
while subdivision (b) is not. (§§ 667, subd. (d)(1), 1192.7, subd. (c)(13.) We recognized that the
GBI enhancement attached to count 1 also elevated the section 4501 offense to a strike offense,
as alleged in the information (§§ 667, subd. (d)(1), 667.5, subd. (c)(8), 1192.7, subd. (c)(8)), but
the trial court had the discretion to strike the enhancement. Therefore, we directed the trial court
to consider the issue in the context of section 1385 as amended by Senate Bill No. 81, effective
January 1, 2022. (Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81).)
4.
count 2, the court imposed the middle term of three years, stayed under section 654.6
The court reduced the restitution fine to $300 and the parole revocation restitution fine to
$300, suspended. (§§ 1202.4, subd. (b)(1), 1202.45, subd. (a).) The prosecutor then
inquired about updating defendant’s credits, but the court indicated that would be done by
the California Department of Corrections and Rehabilitation.
Defendant filed a notice of appeal advancing two claims. One, the trial court erred
when it failed to recalculate his actual custody credits, necessitating remand. Two, the
abstract of judgment must be corrected to reflect imposition of a GBI enhancement under
section 12022.7, subdivision (a), rather than section 12022.7, subdivision (i). The People
concede both errors.
We accept the concessions and remand this matter to the trial court to recalculate
defendant’s actual custody credits and direct the issuance of an amended abstract of
judgment that reflects the updated credits and the imposition of a GBI enhancement
under section 12022.7, subdivision (a). In addition, on our own motion, we direct the
trial court to ensure that the abstract of judgment reflects the date of the resentencing
hearing rather than the original sentencing hearing date and that defendant was
resentenced following a decision on appeal.
DISCUSSION
I. Custody Credit Recalculation
Following defendant’s direct appeal, we vacated his sentence and remanded for a
full resentencing hearing. The parties agree that under this circumstance, the trial court
erred when it failed to recalculate defendant’s actual custody credits at the resentencing
hearing, and that remand for recalculation is required. The parties also agree that
6 The court expressly elected to stay count 2 under section 654, as amended by Assembly
Bill 518.
5.
defendant is entitled to an additional 759 days of credit, through the date the abstract of
judgment was filed on September 14, 2022.
“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.’”
(People v. Buckhalter (2001) 26 Cal.4th 20, 23.) Therefore, we agree with the parties
that the trial court erred when it declined to recalculate defendant’s actual time credits
between the date of his original sentencing hearing and his resentencing hearing. (Id. at
p. 29; People v. Sek (2022) 74 Cal.App.5th 657, 673.) However, we disagree that the
operative date for the purpose of recalculation is the date the abstract of judgment was
filed. The relevant date is the date of resentencing. (People v. Buckhalter, supra, at p. 31[“The agency to which the defendant is committed, not the trial court, has the
responsibility to calculate and apply any custody credits that have accrued between the
imposition of sentence and physical delivery of the defendant to the agency.”]; People v.
Sek, supra, at p. 673 [trial court must update actual time credits served between original
sentencing hearing and resentencing hearing]; People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48 [“Calculation of custody credit begins on the day of arrest and
continues through the day of sentencing.”].)
In this case, the reporter’s transcript reflects that resentencing occurred on
August 9, 2022, and the minute order reflects that resentencing occurred on September 9,
2022. Based on defendant’s notice of appeal, it appears that resentencing occurred on the
latter date. On remand the trial court shall recalculate defendant’s actual custody credits
through the date of the resentencing hearing and issue an amended abstract of judgment
that reflects the updated credits in part 16. Additionally, on our own motion, we direct
the court to ensure that the caption of the amended abstract of judgment is corrected to
reflect the date of the resentencing hearing rather than the date of the original sentencing
hearing, and that part 15(b) of the abstract of judgment is corrected to reflect imposition
6.
of sentence at resentencing per decision on appeal. (People v. Jones (2012) 54 Cal.4th 1,
89.)
II. Clerical Error in Abstract of Judgment
The parties also agree that reference in the amended abstract of judgment to
imposition of a three-year enhancement under section 12022.7, subdivision (i), rather
than section 12022.7, subdivision (a), is the result of a clerical error. “Any discrepancy
between the judgment as orally pronounced and as recorded in the clerk’s minutes or
abstract of judgment is presumed to be the result of clerical error” (People v. Leon (2020)
8 Cal.5th 831, 855, citing People v. Mesa (1975) 14 Cal.3d 466, 471), and we may order
correction on review (People v. Mitchell (2001) 26 Cal.4th 181, 185, quoting In re
Candelario (1970) 3 Cal.3d 702, 705). Accordingly, in issuing an amended abstract of
judgment correcting the errors addressed in part I. of the Discussion, the court shall
ensure this clerical error is corrected.
DISPOSITION
This matter is remanded for the trial court to recalculate defendant’s actual
custody credits and to issue an amended abstract of judgment reflecting: (1) the date of
the resentencing hearing in the caption; (2) imposition of a three-year sentence under
section 12022.7, subdivision (a), in part 2; (3) resentencing per decision on appeal in
part 15(b); and (4) the recalculated custody credits in part 16.
The judgment is otherwise affirmed.
7.