People v. Brittain CA4/1

California Court of Appeal · D082473 · 2025-02-20 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD187149
Trial judge: Peter C. Deddeh
Outcome: affirmed — Affirmed and remanded with instructions.
Area: criminal
Panel: Michele M. Castillo (author), Joan K. Irion, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T03:53Z · confidence high

The trial court resentenced the defendant following a prior appellate reversal but failed to calculate his custody credits and erroneously listed attempted murder instead of discharging a firearm in the abstract of judgment. The Court of Appeal affirmed the resentencing but remanded with instructions to recalculate credits and correct the clerical error in the abstract.

Ruling reviewed	Standard	The court	The model
Failure to calculate custody credits in the abstract of judgment “It is thus the resentencing court—not CDCR—that must calculate Brittain’s custody credits and award such credits in the new abstract of judgment. (Id. at p. 41.)”	unclear	error	agree with court The appellate court correctly identified that under People v. Buckhalter, the sentencing court, not the CDCR, is responsible for calculating and crediting actual time served when a sentence is modified on remand. The trial court’s delegation of this duty to the CDCR violated this mandate, making the error clear and the remand appropriate.
Abstract of judgment reflects incorrect offense of conviction (attempted murder instead of discharging a firearm) “This appears to be a clerical error, as the parties agreed to vacate the attempted murder conviction, and the court’s minute order accurately reflects the charges.”	unclear	error	agree with court The appellate court correctly characterized the discrepancy between the minute order (which reflected the stipulated plea to discharging a firearm) and the abstract (which listed attempted murder) as a clerical error. Remanding to correct the abstract to match the actual conviction is the proper procedural remedy for such discrepancies.

Authorities

relied: People v. Buckhalter (2001) 26 Cal.4th 20 — When a prison term is modified on remand, the sentencing court must recalculate and credit all actual time served against the modified sentence.
relied: People v. Strong (2022) 13 Cal.5th 698 — Established the legal framework for resentencing petitions under Penal Code section 1172.6 (formerly 1170.95), which led to the prior reversal and remand in this case.
relied: People v. Garcia (2002) 97 Cal.App.4th 847 — Supports the use of a memorandum opinion for resolving matters where the issues are straightforward or conceded.

The appellate opinion: sound — The opinion is sound because it correctly applies the binding precedent from People v. Buckhalter to the specific facts of the resentencing, identifying the trial court's failure to calculate credits as a legal error. It also correctly identifies the abstract discrepancy as a clerical error requiring correction, providing a clear and appropriate remedy.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence medium

The trial court resentenced Brittain to life without parole plus ten years after vacating his attempted murder conviction and accepting a plea to Penal Code section 246, but delegated calculation of custody credits to CDCR and issued an abstract listing attempted murder as the offense. The Court of Appeal, accepting the People's concession, remanded for the trial court to recalculate custody credits itself and prepare a corrected abstract of judgment, otherwise affirming.

Ruling reviewed	Standard	The court	The model
Resentencing court delegated calculation of actual custody credits to CDCR rather than calculating and awarding them in the abstract of judgment “It is thus the resentencing court—not CDCR—that must calculate Brittain’s custody credits and award such credits in the new abstract of judgment.”	de novo	error (law misapplied)	agree with court Buckhalter squarely holds that on resentencing after remand the trial court must recalculate and credit all actual time served, in jail or prison, against the modified sentence; delegating that task to CDCR does not satisfy the duty. The People conceded the point and the court applied the controlling Supreme Court authority correctly.
Abstract of judgment listed attempted murder rather than Penal Code section 246 as the offense of conviction “This appears to be a clerical error, as the parties agreed to vacate the attempted murder conviction, and the court’s minute order accurately reflects the charges.”	de novo	error (other)	agree with court The abstract conflicted with the minute order and the parties' stipulation vacating the attempted murder conviction; an appellate court may order correction of a clerical error in the abstract so it reflects the oral pronouncement. The correction ordered is routine and uncontested.

Authorities

relied: People v. Buckhalter (2001) 26 Cal.4th 20 — When a prison term in progress is modified on remand, the sentencing court must recalculate and credit against the modified sentence all actual time already served, whether in jail or prison, before or since original commitment.
relied: People v. Garcia (2002) 97 Cal.App.4th 847 — Appellate courts may resolve appeals by memorandum opinion where the issues are straightforward and the result is dictated by settled law.
relied: People v. Strong (2022) 13 Cal.5th 698 — Felony-murder special circumstance findings made before Banks and Clark do not preclude relief under section 1172.6 (cited for the procedural history that led to the earlier remand).

The appellate opinion: sound — The opinion correctly applies Buckhalter to require the resentencing court, not CDCR, to calculate and award actual custody credits, and properly orders correction of the clerical error in the abstract. The result is uncontested and consistent with controlling authority, though the opinion does not cite authority for correcting clerical errors in abstracts (e.g., People v. Mitchell), which is a minor omission given the concession.

How this analysis was made · dispute it

Opinion

Filed 2/20/25 P. v. Brittain CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082473

Plaintiff and Respondent, v. (Super. Ct. No. SCD187149)

LANCE DENE BRITTAIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed and remanded with instructions. Johanna Pirko, 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, Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Lance Dene Brittain appeals a resentencing order entered pursuant to Penal Code sections 1171.1 (now 1172.75) and 1172.1. He argues, and the People concede, (1) the trial court erred by failing to calculate his custody credits in his abstract of judgment and (2) the abstract reflects an incorrect offense of conviction. We find this matter appropriately resolved by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847) and, accepting the People’s concession, remand with instructions. In 2006, Brittain was convicted of, relevant here, first degree murder (Pen. Code, § 187, subd. (a)), attempted premeditated murder (§§ 187(a), 189, 664), and the unlawful taking of a vehicle (Veh. Code, § 10851(a)). In 2007, the court sentenced him to life without the possibility of parole for the murder charge, life with the possibility of parole for the attempted murder charge, and seven years for the unlawful taking of a vehicle charge. In 2020, the court denied appellant’s petition for resentencing pursuant to section 1172.6. Following the California Supreme Court’s decision in People v. Strong (2022) 13 Cal.5th 698, we reversed the trial court’s order denying the petition and remanded the matter for further proceedings. (People v. Brittain (Jan. 5, 2023, D078233) [nonpub. opn.].) On June 26, 2023, the trial court denied the petition for resentencing as to first degree murder, but the parties stipulated Brittain’s conviction for attempted premeditated murder would be vacated and Brittain would instead plead guilty to discharging a firearm under Penal Code section 246. The court accordingly resentenced Brittain to life without the possibility of parole plus ten years. The court’s minute order states, “[a]ll previously earned credits for time served shall be applied.” And the abstract of judgment states the California Department of Corrections and Rehabilitation is “to [c]alculate previously earned credits. All previously earned credits for time served shall be applied.”

2 On June 4, 2024, the court issued an order amending the minutes from the resentencing, stating Brittain “shall receive the 773 days of actual credit as of his original January 16, 2007, sentencing and credits for all days spent in a State institution since January 16, 2007. The CDCR is to calculate those credits.” Brittain contends, and the People concede, the resentencing court failed to comply with People v. Buckhalter (2001) 26 Cal.4th 20, because it did not determine the actual days Brittain was in custody between his original sentencing in 2007 and his resentencing in 2023. We agree. “[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.” (Id. at p. 29.) It is thus the resentencing court—not CDCR—that must calculate Brittain’s custody credits and award such credits in the new abstract of judgment. (Id. at p. 41.) In addition, although the abstract of judgment reflects the correct base sentence for the Penal Code section 246 offense, it states the offense of conviction was attempted murder. This appears to be a clerical error, as the parties agreed to vacate the attempted murder conviction, and the court’s minute order accurately reflects the charges. DISPOSITION We remand to the trial court to (1) recalculate Brittain’s custody credits between the time of his original January 16, 2007 sentencing and his June 26, 2023 resentencing, and (2) prepare an amended abstract of judgment that includes the recalculated credits and accurately reflects Brittain’s conviction under Penal Code section 246, rather than attempted 3 murder. The trial court shall then forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. We otherwise affirm the judgment.

CASTILLO, J.

WE CONCUR:

IRION, Acting P. J.

DO, J.

Cites, in this corpus

People v. Strong S266606 · 2022-08-08
People v. Garcia F034831 · 2002-04-17
People v. Buckhalter S086220 · 2001-08-29