Filed 4/10/25 P. v. Ureno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E081255

v. (Super.Ct.No. FVI1301077)

JOSE URENO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed with directions.

William D. Farber, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,

Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Jose Ureno was convicted of carjacking and taking or

driving a motor vehicle in 2015. It was found true that he committed the offenses for the

benefit of a criminal street gang and that he suffered several prior convictions including

having served a prior prison term pursuant to Penal Code section 667.5, subdivision (b).1

In a previous appeal, People v. Ureno (August 2, 2015, E060160) [nonpub. opn.]

(Opinion), we affirmed the convictions and ordered a correction to his sentence. In 2023,

defendant was identified by the Secretary of the California Department of Corrections

and Rehabilitation (CDCR) as a defendant serving time in prison who may be eligible for

recall and resentencing relief under section 1172.75. After briefing by the parties and a

hearing the trial court struck the section 667.5, subdivision (b), prior but denied any

further relief.

Defendant appeals the order of the trial court claiming that it abused its discretion

by denying him a full resentencing as required by section 1172.75. Specifically, he

claims he was entitled to have the trial court impose the middle term on his convictions

based on Senate Bill No. 567, which modified section 1170, subdivision (b)(1), after his

original sentencing. In addition, he claims that the trial court failed to update and

recalculate his actual custody credits and that the amended abstracts of judgment for the

indeterminate and determinate sentences need to be corrected.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2

FACTUAL AND PROCEDURAL HISTORY2

On June 27, 2013, a jury found defendant guilty of carjacking (§ 215, subd. (a);

count 1) and taking or driving a motor vehicle (§ 10851, subd. (a); count 2). In addition,

the jury found defendant committed the offenses for the benefit of a criminal street gang

(§ 186.22, subds. (b)(1)(a) & (b)(1)(c)). Defendant also admitted to having suffered one

prior serious felony conviction (§ 667, subd. (a)(1)) and a prior strike conviction within

the meaning of section 667, subdivisions (b) through (i), and 1170.12, subdivisions (a)

through (d). The trial court found the allegation true that defendant had served one prior

prison term within the meaning of section 667.5, subdivision (b). Defendant was

sentenced to 30 years to life for the carjacking, plus a five-year consecutive term for the

prior serious felony conviction, and one year for the prior prison term. He was also

sentenced to a concurrent term of six years for the taking or driving of a motor vehicle

conviction and four years for the section 186.22, subdivision (b)(1)(a) gang enhancement.

Defendant appealed and a panel of this court modified the six-year sentence on the

taking or driving of a motor vehicle and the four-year sentence on the gang enhancement,

and ordered that the sentences be stayed pursuant to section 654. New abstracts of

judgment were ordered to be filed. His custody credits were calculated as 223 total

credits, which consisted of 194 actual days and 29 days of conduct credits pursuant to

section 4019.

2 We derive the history from the clerk’s and reporter’s transcripts in this case and from our Opinion. We need not provide the facts of the underlying crime as they are not relevant to the issues on appeal.

3 On September 30, 2022, defendant filed in pro. per. a “Request for Resentencing

Pursuant to Penal Code section 1171.1 [¶] Senate Bill-483 (SB-483).” (All caps.

omitted.) He obtained counsel and his counsel filed an “Amended Petition for

Resentencing and/or Reversal of His Convictions” (All caps. and boldface omitted)

pursuant to section 1172.75 (Amended Petition). Defendant argued that his section

667.5, subdivision (b), prison prior must be stricken pursuant to section 1172.75,

subdivision (a). Further, pursuant to section 1172.75, subdivision (d)(2), he was entitled

to have the trial court resentence him and apply any other changes in the law. This

included exercising its discretion to dismiss the section 667, subdivision (a),

enhancement that was previously mandatorily imposed but now the trial court possessed

discretion to dismiss the enhancement. The trial court also could dismiss the

enhancement pursuant to section 1385. In addition, the gang enhancement must be

dismissed pursuant to section 1385 and Assembly Bill No. 333. Moreover, the trial court

should strike his serious and/or violent felony conviction enhancement pursuant to

section 1385 and Senate Bill No. 81. The trial court should also strike any fines and fees

based on the prosecution failing to prove his ability to pay.

Attached to the Amended Petition were two letters. A letter from defendant’s

brother stated that defendant started having troubles when he was using drugs. Defendant

had a big heart and deserved a second chance. He would offer defendant a job and

housing if he was released from prison. Defendant’s older sister also submitted a letter

stating he was a good brother and uncle to her sons. She begged the court to give him a

second opportunity to return to his family.

4 The hearing on the Amended Petition was continued. Defendant submitted

additional letters to the trial court in support of the Amended Petition. The daughter of

defendant’s fiancée declared that defendant was like a father to her and she wanted him

home. His niece also provided a letter that defendant was like a father figure to her. She

wanted defendant to be given another chance and for him to come home. Defendant’s

fiancée submitted a letter that defendant had learned from his experience and would not

repeat his crimes. Defendant was a family man and had a support team. Defendant’s

sister-in-law had known defendant for 22 years. He deserved a second chance and to

come home. His fiancée’s son submitted a letter that defendant was a father figure and

that he had learned his lesson. A friend of 20 years stated that defendant always had

goals and wanted to do something with his life. He deserved another chance.

The matter was again continued. Defendant filed additional letters of support to

the Amended Petition. Defendant’s older sister provided that he had been a polite and

respectful man while they were growing up. She wanted him to come home and be with

her children. She asked that the trial court be lenient with defendant. The matter was

again continued.

The People filed opposition to the Amended Petition. The People contended that

defendant could not request relief pursuant to section 1172.75 based on the restrictions

set forth in the statute; he must be identified as eligible for resentencing by the CDCR.

He was not entitled to section 1172.75 relief.

5 Defendant submitted a response and supplemental reply to the opposition to the

Amended Petition. Defendant contended that he in fact had been recommended for

resentencing by the CDCR. His name was included on a list that was provided to the trial

courts on June 30, 2022, as potentially being eligible for resentencing. The list including

defendant’s name was included as an exhibit. Defendant was entitled to a full

resentencing.

Defendant also filed supplemental briefing in support of the Amended Petition.

He argued the trial court should strike his prior conviction pursuant to People v. Superior

Court (Romero) 13 Cal.4th 497 (Romero). He insisted that despite another court finding

that the changes to section 1385 did not apply to prior strike convictions, the case was

wrongly decided. Even if the trial court determined that section 1385 did not apply, it

should still strike defendant’s prior conviction, which was based on a 2002 conviction for

robbery. Defendant insisted that section 1172.75 required a full resentencing not merely

striking the section 667.5, subdivision (b), enhancement. Relying on section 1172.75,

subdivision (d)(3), defendant provided that the trial court should consider postconviction

factors, including record of discipline, rehabilitation efforts, and whether age or time

served had reduced the defendant’s risk for future violence in deciding whether to strike

the prior conviction. The trial court should consider that the Legislature mandated full

resentencing in order to ensure equal justice and to address systematic racial bias in

sentencing.

6 In addition, defendant contended that he was only 18 years old when he committed

the prior robbery offense, and more than 20 years had passed since he committed that

offense. There was a 10-year gap between the prior offense and the current offenses.

Further, the carjacking was a strike but was less serious than some other strike offenses.

Defendant did not use force or violence when committing the carjacking. The letters

submitted to the trial court showed he was loved and supported by his family. Defendant

had matured in the prior 10 years and was ready to be a productive member of society.

The matter was again continued.

The People filed a response to defendant’s supplemental briefing. There were no

mitigating factors listed in section 1385 that applied to defendant, and dismissal of the

enhancement would endanger public safety within the meaning of section 1385,

subdivision (c)(2). Additionally, section 1385 did not apply to prior convictions, and

even if section 1385 applied to defendant, the fact that the prior conviction was over 20

years old and there were multiple enhancements did not mandatorily require its

application to defendant. The People also noted that no records of defendant’s conduct

during his incarceration had been submitted to the trial court to support that the prior

conviction should be struck by the trial court based on his change of behavior and

prospects. Finally, under Romero, the striking of the prior conviction was not in the

furtherance of justice.

Defendant filed a reply to the opposition. Defendant argued that the prior

conviction was mandatorily dismissed pursuant to section 1385, subdivisions (c)(2)(B)

and (c)(2)(C). The People presented no evidence that defendant was still a threat to

7 society after 16 years. The prior strike should be dismissed pursuant to section 1385 or

Romero.

The matter was heard on May 5, 2023. The trial court stated it had reviewed the

Amended Petition, the oppositions filed by the People and defendant’s reply to the

opposition. Defendant’s counsel relied on the briefing but added that the trial court now

had discretion to impose sentence on count 2 and stay count 1 under new law. Further,

for the first time, counsel argued that the sentences on counts 1 and 2 should be middle

terms as there were no proven aggravating factors. The People argued that if the trial

court found that defendant properly filed the Amended Petition, there was no change in

circumstances that warranted resentencing. There was no evidence of his disciplinary or

rehabilitation record while in prison. The trial court should not strike the prior

conviction.

The trial court accepted the Amended Petition apparently agreeing with defendant

that he was entitled to file it. The trial court then addressed its discretion pursuant to

section 1385 to dismiss the prior strike convictions. The trial court noted that the prior

conviction was for robbery and the current conviction was for carjacking. Defendant had

a history of parole violations. The trial court noted, “He has not exhibited behavior that

shows he is not a public safety risk; rather his increase in violence as he got older shows

this court that he is a serious risk of public safety.” The trial court also noted that

between the robbery conviction in 2001 and the carjacking in 2013, defendant had

numerous convictions and parole violations. Defendant had a history of committing

violent crimes. The trial court also noted that defendant was 40 years old and that his

8 criminal history “is not yet behind him.” There were no relevant facts or circumstances

provided to the trial court that showed he had changed his criminal lifestyle.

The trial court concluded, “[T]he defendant does not fit outside of the spirit of the

three strikes law. And for that reason, the motion to strike his prior is denied, and the

Court also denies the defendant’s motion for re-sentencing under Penal Code Section

1172.75, and for those reasons, the Court also finds he is ineligible for re-sentencing on

the gang enhancement that is found true.” Defendant’s counsel inquired, “I’m a little bit

unclear as to the basis for the denial of even striking the 667.5B enhancement.” The trial

court then clarified that the only thing it was going to do was strike the section 667.5,

subdivision (b) one year enhancement. Other than striking the one-year enhancement, the

sentence remained the same.

New abstracts of judgment were filed on May 10, 2023, which reflected the

striking of the section 667.5, subdivision (b), prior but incorrectly reflected the sentences,

as will be discussed, post. The new abstracts of judgment reflected the custody credit as

223 days which was 194 actual days and 29 days of local conduct credit under section

4019. Defendant filed his notice of appeal on May 5, 2023.

DISCUSSION

Defendant contends the trial court erred in choosing to strike the section 667.5,

subdivision (b), enhancement but then denying him a full resentencing as required by

section 1172.75. He focuses his argument on the claim that the trial court erred by failing

to apply the change to section 1170, subdivision (b)(1), which provides that the middle

term of a sentencing triad is the presumptive term. Instead, the trial court reimposed the

9 same upper-term sentences on counts 1 and 2. Defendant also contends the trial court

erred by failing to update and recalculate his actual custody credits, and the abstracts of

judgment for the indeterminate and determinate sentences are incorrect.

A. DENIAL OF RESENTENCING

Section 1172.75, subdivision (a), states that “[a]ny sentence enhancement that was

imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for

any enhancement imposed for a prior conviction for a sexually violent offense . . . is

legally invalid.” Section 1172.75, subdivision (b), requires the Secretary of the CDCR to

identify all inmates “currently serving a term for a judgment that includes an

enhancement described in subdivision (a). “Upon receiving th[is] information” from the

CDCR, “the sentencing court that imposed the enhancement” then “shall review the

judgment and verify that the current judgment includes a sentencing enhancement

described in subdivision (a).” (§ 1172.75, subd. (c).) “If the court determines that the

current judgment includes an enhancement described in subdivision (a), . . . the court

shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)

Subdivision (d)(2) of section 1172.75 provides, “The court shall apply the sentencing

rules of the Judicial Council and apply any other changes in law that reduce sentences or

provide for judicial discretion so as to eliminate disparity of sentences and to promote

uniformity of sentencing.”

Section 1172.75, subdivision (d)(1) provides that resentencing undertaken

“pursuant to this section shall result in a lesser sentence than the one originally imposed

as a result of the elimination of the repealed enhancement, unless the court finds by clear

10 and convincing evidence that imposing a lesser sentence would endanger public safety.”

In addition, subdivision (d)(3) of section 1172.75 provides that the trial court “may

consider postconviction factors, including, but not limited to, the disciplinary record and

record of rehabilitation of the defendant while incarcerated, evidence that reflects

whether age, time served, and diminished physical condition, if any, have reduced the

defendant's risk for future violence, and evidence that reflects that circumstances have

changed since the original sentencing so that continued incarceration is no longer in the

interest of justice.” Additionally, section 1172.75, subdivision (d)(4), provides, “Unless

the court originally imposed the upper term, the court may not impose a sentence

exceeding the middle term unless there are circumstances in aggravation that justify the

imposition of a term of imprisonment exceeding the middle term, and those facts have

been stipulated to by the defendant, or have been found true beyond a reasonable doubt at

trial by the jury or by the judge in a court trial.”

Defendant contends on appeal that the trial court, by reaffirming the upper terms

imposed on counts 1 and 2 and denying a full resentencing, abused its discretion because

it failed to consider, discuss or apply the ameliorative changes to section 1170,

subdivision (b). Defendant insists that the trial court should have resentenced him to the

middle term based on the language in section 1170, subdivisions (b)(1) and (b)(2), which

after the passage of Senate Bill No. 5673 provides that the middle term of a sentencing

3 Stats 2021, c. 731 (S.B. 567), § 1.3, eff. Jan. 1, 2022. Section 1170 was amended effective January 1, 2024, but it did not modify subdivisions (b)(1) or (b)(2). (Stats. 2023, c. 560 (A.B. 1104) § 2.5, eff. Jan. 1, 2024.)

11 triad is the presumptive term, and the upper term cannot be imposed unless there are

circumstances in aggravation that justify exceeding the middle term. These aggravated

factors must have been stipulated to by the defendant or found true beyond a reasonable

doubt at trial by the jury or by the judge at a court trial.

Defendant also appears to contend the trial court erred by generally failing to

apply new sentencing laws. Defendant simply states that the trial court abused its

discretion by denying a full resentencing hearing because it should have applied all the

applicable sentencing statutes. He provides no further legal authority or argument on

how the trial court erred in denying the resentencing other than by failing to consider

section 1170, subdivisions (b)(1) and (b)(2). Defendant makes no argument supported by

legal authority that the trial court abused its discretion by refusing to strike the prior

convictions or address the gang enhancements. We need not make such arguments for

defendant and find these claims are forfeited on appeal. (People v. Stanley (1995) 10

Cal.4th 764, 793 [“[E]very brief should contain a legal argument with citation of

authorities on the points made. If none is furnished on a particular point, the court may

treat it as waived, and pass it without consideration”) The only issue properly before this

court is whether the trial court abused its discretion by denying resentencing on counts 1

and 2 based on the changes to section 1170, subdivisions (b)(1) and (b)(2).

The People, relying on section 1172.75, subdivision (d)(4), argue that the trial

court did not abuse its discretion in denying resentencing because it could impose the

same sentence on counts 1 and 2 as it did at the original sentencing in 2013. The upper

terms were authorized by the plain language of section 1172.75, subdivision (d)(4), which

12 is an exception to the section 1170 requirement that aggravating factors be found true by

a jury beyond a reasonable doubt.

There is a split of authority as to whether section 1172.75, subdivision (d)(4),

authorizes the imposition of the upper term without a jury finding on the aggravated

circumstances. In People v. Brannon-Thompson (2024) 104 Cal.App.5th 455 (Brannon),

the appellate court examined the plain language of section 1172.75, subdivision (d)(4),

and concluded that if the trial court had originally sentenced the defendant to the

aggravated term and the court reimposes that term, the People are not required to prove

aggravating factors beyond a reasonable doubt at a section 1172.75 resentencing hearing.

(Brannon, at pp. 466-467.) The appellate court concluded that section 1172.75,

subdivision (d)(4), is “an exception to the general rule that the trial court must apply

ameliorative changes in the law at a section 1172.75 resentencing.” (Brannon, at p. 467.)

In People v. Gonzalez (2024) 107 Cal.App.5th 312, the defendant argued on

appeal that the trial court “failed to properly apply section 1170, subdivision (b)(2),

because the aggravating factors identified in support of the upper term were not proven

beyond a reasonable doubt by a jury or court, or previously stipulated. In so arguing, he

claims that this court must ‘reconcile’ section 1170, subdivision (b)(2) with section

1172.75, subdivision (d)(4), which might be interpreted to not require the court to

identify aggravating factors if the defendant was previously sentenced to the upper term.

Gonzalez specifically argues that because section 1170, subdivision (b)(2) triggers a

constitutional right to findings of fact regarding aggravating factors, the same standard

should equally apply to section 1172.75, subdivision (d)(4).” (Id. at p. 327.) The People

13 in response relied on the plain language of section 1172.75, subdivision (d)(4), and

argued, “that under the plain language of the statute, an admission or jury finding on

circumstances in aggravation is only required if the resentencing court newly imposes an

upper term, not if an upper term sentence was previously imposed. . . . this language [is]

an ‘exception’ to the requirement under section 1170, subdivision (b), that any

aggravating circumstances be proven beyond a reasonable doubt or stipulated to by the

defendant.” (Gonzalez, at p. 328.) The appellate court stated the plain language of

section 1172.75, subdivision (d)(4), could reasonably be interpreted to “simply restrict

the scope of defendants eligible to receive the upper term at resentencing to those who

previously received the upper term, instead of creating a condition or exception

independently justifying the imposition of the upper term. Under such an interpretation, a

defendant would be eligible for the upper term but could not receive it in the absence of

aggravating factors stipulated to by the defendant or proven beyond a reasonable doubt to

the trier of fact.” (Gonzalez, at p. 329, italics. omitted.) The appellate court concluded,

“the statutory interpretation for section 1172.75, subdivision (d)(4), which simply

restricts the scope of defendants eligible to receive the upper term, allows us to read the

statute in a manner that is internally consistent and avoids running afoul of the Sixth

Amendment. Under such an interpretation, a defendant would be eligible for the upper

term but could not receive it in the absence of aggravating factors stipulated to by the

defendant or proven beyond a reasonable doubt to the trier of fact.” (Id. at p. 330, italics

omitted.)

14 We need not resolve this conflict based on (1) defendant being sentenced on the

carjacking to a mandatory 15-years-to-life sentence, which did not involve the trial

court’s discretion to impose the upper term; and (2) defendant has waived any claims as

to the trial court’s exercise of its discretion to deny resentencing as to count 2.

As to count 1, the carjacking, defendant was originally sentenced in 2013. At that

time, the trial court stated that it was imposing a 15-years-to-life sentence based on the

section 186.22, subdivision (b)(1)(c), enhancement. Carjacking has a triad of

imprisonment of three, five or nine years. (§ 215, subd. (b).) Section 186.22, subdivision

(b)(1), provides “Except as provided in paragraphs (4) and (5), a person who is convicted

of a felony committed for the benefit of, at the direction of, or in association with a

criminal street gang, with the specific intent to promote, further, or assist in criminal

conduct by gang members, shall, upon conviction of that felony, in addition and

consecutive to the punishment prescribed for the felony or attempted felony of which the

person has been convicted, be punished as follows: [¶] (C) If the felony is a violent

felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an

additional term of 10 years.” However, section 186.22, subdivision (b)(4)4 provides, “A

person who is convicted of a felony enumerated in this paragraph committed for the

benefit of, at the direction of, or in association with a criminal street gang, with the

specific intent to promote, further, or assist in criminal conduct by gang members, shall,

upon conviction of that felony, be sentenced to an indeterminate term of life

4 In 2013, the wording of section 186.22, subdivision (b)(1)(c) and (b)(4)(B) were the same. (Stats. 2011, c. 39 (A.B. 117) § 7, eff. June 30, 2011, operative Jan. 1, 2012.)

15 imprisonment with a minimum term of the indeterminate sentence calculated as the

greater of: [¶] . . . [¶] (B) Imprisonment in the state prison for 15 years, if the felony is a

home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision

(a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section

246; or a violation of Section 12022.55.”5

The trial court imposed the mandatory sentence of 15 years to life for the

carjacking and the gang enhancement. “Section 186.22, subdivision (b)(4), not

subdivision (b)(1)(C), is applicable if the felony committed to benefit a criminal street

gang is ‘a home invasion robbery [or] carjacking . . . .’ [Citation.] Rather than a

determinate term enhancement, section 186.22, subdivision (b)(4), provides for an

indeterminate life term as a mandatory alternate penalty ‘with a minimum term of the

indeterminate sentence calculated as the greater of: [¶] (A) The term determined . . .

pursuant to [the determinate sentencing law] for the underlying conviction . . . [or] [¶]

(B) [i]mprisonment in the state prison for 15 years.” (People v. Sok (2010) 181

Cal.App.4th 88, 96, italics added.) The trial court did not in its discretion impose the

upper term on the carjacking count but rather the mandatory alternative sentence of 15

years to life as required by section 186.22, subdivision (b)(4)(B). As such, section 1170,

5 The People contend that defendant was sentenced to the middle term of five years for the carjacking plus 10 years for the section 186.22, subdivision (b)(1)(C) enhancement. However, this sentence would not be a life term sentence and section 186.22 clearly provides that carjacking is sentenced pursuant to section 186.22, subdivision (b)(4)(B).

16 subdivision (b), did not provide authority for resentencing defendant to the middle term

on count 1, the carjacking.

On count 2, the trial court did impose the upper term of three years on the taking

or driving a motor vehicle, doubled for the prior strike conviction. Defendant has

forfeited his claim on appeal that the trial court abused its discretion by failing to

resentence him on count 2 to the middle term.

In the lower court, despite submitting numerous briefs to the trial court, defendant

never provided an argument to the trial court as to the imposition of the middle term on

count 2. For the first time, at the hearing, defendant stated an additional argument to the

trial court: “And then lastly, we also believe that [defendant] should be receiving the

midterm sentence on each of the counts. The only aggravating factors that the Court can

use are those that were proven beyond all reasonable doubt by the jury. That was not

done in this case. The one exception is the prior conviction, which the Court can make its

own findings on and which has already been admitted and that could be used.”

Defendant’s counsel argued that the prior conviction did not support the upper term as it

was 20 years old, and defendant was only 18 years old at the time he committed the prior

conviction. “So we do not believe that is an aggravating factor supporting the upward

term sentences, and we believe that the midterms are appropriate.”

17 Section 1170, subd. (b)(3), provides that “the court may consider the defendant’s

prior convictions in determining sentencing based on a certified record of conviction

without submitting the prior convictions to a jury.” In People v. Wiley (2023) 97

Cal.App.5th 676, review granted March 12, 2024, S283326,6 the appellate court found

that the trial court could consider a certified copy of the prior conviction both for the

“fact of a prior conviction and ‘other related issues’ ” including aggravating factors such

as increasing seriousness of convictions or poor performance on probation. (Id. at pp.

685-687}

Defendant seemingly conceded in the trial court that the trial court had the record

of the prior conviction before it and simply argued that the prior conviction should not be

used as an aggravating factor based on the age of the conviction and that he was young

when it was committed. The trial court was aware, based on defendant’s argument made

in court, that it was defendant’s position that the upper term was not appropriate because

the middle term was the presumptive term. Defendant on appeal fails to argue that the

trial court abused its discretion by relying on the prior conviction or that there was a lack

of evidence of the aggravating factor based on no certified copy being provided to the

trial court. Defendant also fails to address section 1170, subdivision (b)(3). Defendant’s

argument that the trial court did not “consider or apply” section 1170 is belied by the

record as it is presumed that the trial court considered defendant’s arguments in denying

the section 1172.75 petition. (People v. Myers (1999) 69 Cal.App.4th 305, 310 [“The

6 The California Supreme Court in granting review ordered that the court of appeal opinion could be cited for persuasive value.

18 court is presumed to have considered all of the relevant factors in the absence of an

affirmative record to the contrary”].) Defendant’s failure to provide any further argument

that the trial court abused its discretion or that the record lacks evidence of the prior

conviction or other aggravating factors, forfeits the claim on appeal. (People v. Stanley,

supra, 10 Cal.4th at p. 793.) As such, we affirm the trial court’s denial of the petition for

resentencing finding that defendant has forfeited any argument that the trial court abused

its discretion by refusing to resentence him on count 2.

B. CUSTODY CREDITS AND ABSTRACT OF JUDGMENT

Defendant contends the trial court erred by failing to update or recalculate his

actual custody credits at the time it struck the section 667.5, subdivision (b), enhancement

and that he is entitled to a calculation of the credits since the original judgment and

sentencing on October 23, 2013. The abstracts of judgment incorrectly provide the

original actual custody credits awarded in 2013 of 194 days. The People concede the

error and agree that the matter should be remanded to the trial court for it to calculate the

actual days defendant spent in custody and to prepare updated abstracts of judgment.

When a prison term “already in progress is modified as the result of an appellate

sentence remand, the sentencing court must recalculate and credit against the modified

sentence all actual time the defendant has already served, whether in jail or prison, and

whether before or since he was originally committed and delivered to prison custody.”

(People v. Buckhalter (2001) 26 Cal.4th 20, 29; see also § 2900.1 [“Where a defendant

has served any portion of his sentence under a commitment based upon a judgment which

judgment is subsequently declared invalid or which is modified during the term of

19 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

reduced defendant’s sentence by one year when it struck the section 667.5, subdivision

(b), enhancement. It did not recalculate defendant’s actual custody credits. As such, we

will order remand for the trial court to calculate the actual custody credits.

Additionally, the abstracts of judgment do not reflect the correct sentence. The

abstract of judgment filed on May 10, 2023, for the indeterminate term, reflects that the

trial court stayed the 30-years-to-life sentence on the carjacking. The correct sentence on

the carjacking was an imposed sentence of 30-years-to-life. In addition, the abstract of

judgment filed on May 10, 2023, for the determinate sentence, reflects that defendant was

sentenced to a 30-year sentence on count 2 and that such sentence was stayed. This

sentence is incorrect as the proper sentence, after this court on appeal ordered that the

sentence on count 2 be stayed pursuant to section 654, should have been six years, which

was stayed.

At the time the trial court recalculates the actual custody credits, it shall also

prepare new abstracts of judgment to reflect the actual custody credits and to properly

reflect defendant’s sentence.

DISPOSITION

We affirm the trial court’s ruling denying defendant full resentencing under section

1172.75. The matter is remanded for the sole purpose of the trial court to calculate the

correct actual custody credits, and to prepare new abstracts of judgment reflecting the

proper custody credits and defendant’s correct sentence. The trial court is directed to

20 forward a certified copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

McKINSTER J.

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