P. v. Cabrera

Filed 12/5/06 P. v. Cabrera CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROGELIO CABRERA,
Defendant and Appellant.
B190876
(Los Angeles County
Super. Ct. No. VA026941)
APPEAL from a judgment of the Superior Court of Los Angeles County, William
J. Birney, Jr., Judge. Affirmed as modified.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Lawrence M. Daniels, Deputy Attorney General,
Mary Sanchez, Supervising Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION1
This case returns to us after our previous remand for resentencing (B181524). In
2004, a jury convicted defendant and appellant Rogelio Cabrera (defendant) of a 1994
attempted murder (Pen. Code, § 664/1872
) and found that he personally used a firearm (§
12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
The trial court sentenced defendant to life in prison with the possibility of parole with a
13-year consecutive sentence based on a 10-year enhancement for personally using a
firearm, and a three-year enhancement for personally inflicting great bodily injury. The
trial court also imposed a $1,000 parole revocation fine under section 1202.45.
Defendant appealed contending that his 10-year sentence on the firearm enhancement and
parole revocation fine violated the prohibition against ex post facto laws in the United
States and California Constitutions. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.)
Defendant also contended that the trial court’s imposition of the upper term sentence for
the firearm enhancement violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
We agreed with defendant’s ex post facto argument, but rejected his Blakely argument,
and remanded for resentencing.
On remand, the trial court sentenced defendant to five years in prison for the
firearm use enhancement, five years being the upper term under section 12022.5,
subdivision (a) at the time he committed his offense. The trial court did not modify its
previous award of a total of 639 days of presentence credit, consisting of 426 days of
actual custody credit and 213 days of conduct credit.
On appeal, defendant contends that the upper term sentence for the firearm use
enhancement violates Blakely, supra, 542 U.S. 296, and that the trial court erred in failing
to award him actual custody credit for the period from the date of his initial sentencing to
and including the date of his resentencing. We affirm the upper term sentence for the
1
Because the issues on appeal solely address sentencing issues, we dispense with a
recitation of the facts concerning defendant’s substantive offense.
2
All statutory citations are to the Penal Code unless otherwise noted.

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firearm enhancement under section 12022.5, subdivision (a) and order the abstract of
judgment modified to reflect 889 days of actual custody credit.
We requested supplemental briefing from the parties addressing the issue of
whether defendant was awarded an extra day of presentence conduct credit. Because the
trial court improperly awarded defendant an additional day of presentence conduct credit,
we order the abstract of judgment modified to reflect 212 days of conduct credit.
DISCUSSION
I. The Trial Court Properly Sentenced Defendant to the Upper Term for the
Firearm Use Enhancement
Defendant contends that his five-year upper term sentence for the firearm use
enhancement under section 12022.5, subdivision (a) violates Blakely, supra, 542 U.S.
296 because it was based on the trial court’s finding that the manner in which he
committed his offense was “mean, vicious [and] cowardly, one of the worst I have seen”
and was not based on facts found by the jury. Defendant acknowledges that People v.
Black (2005) 35 Cal.4th 1238 resolved this issue against him and that we are bound by
that decision under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455,
but raises the issue to preserve it for federal review. The trial court did not err.3
“‘“The doctrine of the law of the case is this: That where, upon an appeal, the
[reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law
necessary to the decision, that principle or rule becomes the law of the case and must be
adhered to throughout its subsequent progress, both in the lower court and upon
subsequent appeal, . . . and this although in its subsequent consideration this court may be
clearly of the opinion that the former decision is erroneous in that particular.”’” (People
v. Stanley (1995) 10 Cal.4th 764, 786.) In his first appeal in this case, defendant argued
3
The issue of whether this aspect of California’s sentencing law is constitutionally
valid is before the United States Supreme Court in Cunningham v. California, cert.
granted, Feb. 21, 2006, No. 05-6551, __ U.S. __, 126 S.Ct. 1329.

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that his 10-year upper term sentence for the firearm use enhancement violated Blakely,
supra, 542 U.S. 296 on the same ground asserted here. We rejected that argument,
holding that “In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court
held that California’s determinate sentencing law does not violate Blakely, supra, 542
U.S. 296, and that the judicial factfinding that occurs when a judge exercises discretion to
impose an upper term sentence under section 1170, subdivision (b) does not implicate a
defendant’s Sixth Amendment right under the United States Constitution to a jury trial.
(Id. at p. 1255.)” Thus, under the doctrine of the law of the case, the trial court was
bound by our previous ruling and that ruling forecloses appellate review of this issue.
(People v. Stanley, supra, 10 Cal.4th at p. 786.)
Even if the doctrine of the law of the case did not bind the trial court or foreclose
review of this issue, our Supreme Court’s opinion in People v. Black, supra, 35 Cal.4th
1238 resolves this issue against defendant. Accordingly, the trial court did not err in
sentencing defendant to the upper term for the firearm use enhancement.
II. Defendant’s Credits
A. Actual Custody Credit
“[W]hen 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.) When a trial court resentences a
defendant, it is “obliged, in its new abstract of judgment to credit him with all actual days
he had spent in custody, whether in jail or prison, up to that time.” (Id. at p. 37.)
Defendant correctly contends that the trial court erred when it resentenced him because it
failed to award him actual custody credit for the period from the date of his initial
sentencing to and including the date of his resentencing. Respondent concedes the error.
Defendant was initially sentenced on January 20, 2005. At that time, the trial
court awarded defendant 426 days of actual custody credit and 213 days of conduct

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credit. Defendant was resentenced on April 28, 2006. At that time, the trial court failed
to award defendant any additional actual custody credit. The period from January 20,
2005, to and including April 28, 2006, is 463 days. The abstract of judgment is ordered
modified to reflect a total of 889 days of actual custody credit.
B. Conduct Credit
Presentence credits are calculated under section 4019.4
(People v. Brown (2004)
33 Cal.4th 382, 405.) “Under section 4019, presentence conduct credit is calculated ‘by
dividing the number of days spent in custody by four and rounding down to the nearest
whole number. This number is then multiplied by two and the total added to the original
number of days spent in custody. [Citation.]’ (People v. Fry (1993) 19 Cal.App.4th
1334, 1341 [24 Cal.Rptr.2d 43].)” (People v. Williams (2000) 79 Cal.App.4th 1157,
1176, fn. 14.) In our credit calculations, we include the date of arrest (People v. Lopez
(1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989)
211 Cal.App.3d 523, 525-526). We treat a partial day in custody as a whole day for
calculation purposes. (People v. Smith, supra, 211 Cal.App.3d at p. 526.)
At the time that defendant was initially sentenced, the trial court awarded him a
total of 639 days of presentence credit consisting of 426 days of actual custody credit and
213 days of conduct credit. For those 426 days of actual custody credit, defendant was
entitled to an additional 212 days of conduct credit: 426 divided by 4 rounded down
equals 106, multiplied by 2 equals 212.5
The parties agree that the trial court erred in
awarding defendant 213 days of conduct credit.
4
Defendant committed his offense – attempted murder – on June 1, 1994. Section
2933.1, which limits presentence conduct credit for certain offenses listed in subdivision
(c) of section 667.5, including attempted murder (§ 667.5, subd. (c)(12)), did not become
effective until September 21, 1994 (Stats. 1994, ch. 713 (A.B. 2716), § 1), and thus does
not operate to limit defendant’s presentence conduct credit.
5
Defendant was not entitled to an award of presentence conduct credit from the trial
court under section 4019 for the additional 463 days he spent in actual custody in state

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DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered modified to reflect
889 days of actual custody credit and 212 days of conduct credit. The clerk of the
superior court is directed to forward the corrected abstract of judgment to the Department
of Corrections.
MOSK, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
prison between his initial sentence and resentencing. (People v. Buckhalter, supra, 26
Cal.4th at pp. 29-30, 33-34.) The Department of Corrections is to calculate credit for that
period under the scheme for earning credit applicable to persons incarcerated in state
prison. (Id. at p. 31.)

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