DISCUSSION

I Defendant contends he received ineffective assistance because his counsel at resentencing failed to present the trial court with all available resentencing options that may have resulted in a more favorable sentence. Specifically, defendant contends his counsel: (1) failed to present all possible sentencing alternatives for his 25-to-life firearm enhancement, and (2) failed to request the trial court exercise its newly granted discretion under section 6541 to stay his sentence for aggravated mayhem (seven years to life) and instead enforce the sentence for attempted murder (the upper term of nine years). “[T]o establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered

1 Section 654 as amended allows a trial court to select which sentence to stay in contrast to the previous language, which required the trial court to impose the longest possible term. (People v. Mendoza (2022) 74 Cal.App.5th 843, 861-862.)

3 prejudice as a result of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate prejudice, a defendant must show “a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (Mickel, at p. 198.) Here, defendant faults his attorney for failing to present the trial court with all options at his resentencing. However, he has not established he was prejudiced by these asserted failures. In Duggan II this court determined it was unnecessary to remand defendant’s case to allow the trial court to exercise its newly found discretion to strike defendant’s firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.). (Duggan II, supra, C079809.) The numerous sentencing factors in aggravation that were utilized to impose an upper term determinate sentence for defendant’s firearm possession conviction, combined with the trial court’s comment “that [the] enhancement term was ‘appropriate’ ” caused this court to conclude “that term would not have been stricken had the trial court possessed such discretion at the time of sentencing.” (Ibid.) That the trial court would not have imposed a lesser sentence at his December resentencing hearing is also supported by the fact that, with the limited exception of running the term for defendant’s misdemeanor conviction concurrent with his prison sentence, the trial court imposed the maximum sentence allowable under law when it originally sentenced defendant in 2015 and resentenced him in 2022. Defendant has therefore not demonstrated it is reasonably probable the trial court would have altered his sentence downward. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

II The parties agree and so do we that this matter must be remanded for correction of defendant’s actual custody credits and for issuance an amended abstract of judgment

4 reflecting the accurate number of days served prior to the December 2022 resentencing hearing. Pursuant to section 2900.1, “when a sentence is modified while in progress, the ‘time’ already served ‘shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts.’ ” (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) This requires the trial court to update the actual custody credits on the amended abstract of judgment to reflect “all actual days” spent in custody “whether in jail or prison” up until the resentencing. (Ibid.)

DISPOSITION

We remand the matter for the trial court to calculate defendant’s actual custody credit. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

/s/

MESIWALA, J.

We concur:

/s/ HULL, Acting P. J.

/s/

RENNER, J.

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