People v. Bradshaw CA5

INTRODUCTION

Defendant Lamont Dustin Bradshaw appeals the trial court’s denial of his petition for recall and resentencing under Penal Code section 1170, subdivision (d) (section 1170(d)) as untimely.1 Defendant argues the trial court erroneously calculated the 15-year period of incarceration by crediting only time defendant spent in the custody of the Department of Corrections and Rehabilitation (CDCR) after he was sentenced rather than all the time defendant was in custody prior to his conviction and sentencing. Defendant further argues he was continuously incarcerated since August 2, 2008, and his petition on August 23, 2023, was filed after he had been incarcerated for more than 15 years. We agree the 15-year period of incarceration required to file an initial petition under section 1170(d)(1)(A) includes time spent in custody before conviction and sentencing. However, even including all time defendant was in custody prior to sentencing, the record establishes defendant was incarcerated for only 14 years and approximately six months prior to filing his petition. As such, the petition was untimely, and we affirm on that basis. Defendant remains free to file a timely petition…