Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. MA 034011 Hayden Zacky, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Defendant Lamont T. Tarkington appeals from the judgment entered on remand for resentencing after a partially successful appeal from multiple convictions of robbery.
FACTS AND PROCEEDINGS BELOW
A jury convicted Tarkington and codefendant Darris Allen of five counts of second degree robbery and one count of commercial burglary with findings of a gang enhancement and that a principal was armed with a firearm and personally used a firearm. The jury found true that appellant had one prior serious felony conviction that additionally qualified him for sentencing under the three strikes law. Tarkington was sentenced to a term in state prison of 39 years 4 months consisting of a doubled five-year term for the robbery in count one and one-third the middle term for the remaining offenses doubled pursuant to the three strikes law. The trial court imposed two consecutive 10-year terms for the gang enhancement and for the principal’s use of a firearm. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b) & (e)(1).) The trial court imposed a restitution fine and a parole revocation fine, in the amount of $2,000 each. (§§ 1202.4, subd. (b), 1202.45.)
Allen is not a party to this appeal.
Tarkington and Allen appealed from the original judgment. (People v. Tarkington (Mar. 3, 2009, B199860) [nonpub. opn.].) On appeal, we affirmed the convictions but held that Penal Code section 654 required a stay of the term imposed for the burglary. Additionally, we concluded that insufficient evidence supported the gang enhancement and reversed the orders imposing the 10-year terms for the gang enhancement and the principal’s use of a firearm. In lieu of the enhancements, we ordered the trial court on remand to impose a one-year term for a principal-armed finding. (§ 12022, subd. (a)(1).)
All further references are to the Penal Code unless otherwise indicated.
On remand, the trial court resentenced Tarkington to an aggregate 24-year term in state prison, as follows. It imposed a doubled upper five-year term for the robbery in count 1 enhanced by five years for the finding of a prior serious felony, or 15 years. Consecutive to the term imposed for count 1, it imposed four 2-year terms for the four additional counts of robbery (doubled terms of one-third of the middle term of three years), or 8 years. It ordered the term imposed for the burglary stayed pursuant to section 654 and imposed a one-year enhancement for a principal-armed finding. It imposed a restitution fine and a parole revocation fine, in the amount of $4,800 each. (§§ 1202.4, subd. (b), 1202.45.)
Tarkington filed a timely notice of appeal.
On May 4, 2010, Tarkington filed a petition for a writ of habeas corpus raising issues of newly discovered evidence and ineffective assistance of counsel, In re Lamont T. Tarkington, B224140. On May 12, 2010, the court ordered this appeal and the petition considered concurrently. We will dispose of the petition for a writ of habeas corpus by a separate order.
DISCUSSION
I. THE RESTITUTION FINES
Tarkington contends that at resentencing the trial court improperly imposed restitution fines that exceed the fines imposed at his original sentencing. The Attorney General concedes the point and we agree..
In People v. Hanson (2000) 23 Cal.4th 355, 366-367, the court held that restitution fines are punishment for purposes of double jeopardy, and that on remand for resentencing after an appeal, a trial court may not impose restitution fines greater than the fines imposed at in the original judgment. Here, on remand for resentencing, the trial court imposed a restitution fine and a parole revocation fine of $4800 each, although each original fine was only $2000.
We will order the restitution fine and the parole revocation fine reduced to $2,000 each. (§§ 1202.4, subd. (b), 1202.45; People v. Wardell (2008) 162 Cal.App.4th 1484, 1496.)
II. PRESENTENCE CREDIT
At resentencing, the trial court ordered 1513 days of total presentence credit, consisting of actual credit of 1316 days and conduct and worktime credit of 197 days. On appeal Tarkington contends that he is entitled to two additional days of presentence credit. The Attorney General concedes the point, and we agree.
In his original sentence, Tarkington was awarded a total of 596 days of presentence custody credit, consisting of 518 days of actual credit and 78 days of local conduct credit. He does not challenge that calculation.
At resentencing after his appeal, the trial court awarded him an additional 798 days of actual custody credit and 119 days of worktime credit. He contends that he was entitled to 800 days of actual custody credit for the period between his original sentencing on May 15, 2007, and his July 23, 2009, sentencing on remand, not the 798 days the trial court awarded to him. His calculation is correct. He is entitled to 1318 days of actual credit and 197 days of local conduct and worktime credit, a total of 1515 days of presentence credits, and we will make that order. (People v. Buckhalter (2001) 26 Cal.4th 200, 29.)
DISPOSITION
The judgment is modified to provide that the Penal Code section 1202.4, subdivision (b), restitution fine and section 1202.45 parole revocation fine are reduced to $2,000 each and that Tarkington is entitled to total presentence credits in the amount of 1515 days, consisting of 1318 days of actual custody credit and 197 days of local conduct and worktime credit. As modified, the judgment is affirmed.
The superior court shall cause its clerk to prepare and send to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting the judgment, as modified.
We concur: MALLANO, P. J., JOHNSON, J.