People v. Davenport CA2/7

Opinion

Filed 9/28/26 P. v. Davenport CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B339886

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA131897) v.

ANTHONY JACK DAVENPORT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa S. Coen, Judge. Affirmed with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent. _______________ Anthony Jack Davenport appeals from the judgment entered in 2024 after he was resentenced under Penal Code section 1172.75.1 In 2013 Davenport pleaded no contest to robbery, attempted robbery, and six counts of petty theft with prior convictions, and the trial court sentenced him to 20 years in prison, including a one-year prior prison term enhancement under section 667.5, former subdivision (b). At his 2024 resentencing, the superior court struck his prior prison term enhancement and resentenced him to 19 years in state prison. Davenport asserts three arguments on appeal; we agree with the first two. Davenport contends, the People concede, and we agree that the $280 restitution fine the trial court imposed in 2013 under section 1202.4 should be vacated pursuant to section 1465.9, subdivision (d), because it was imposed more than 10 years ago. In addition, the June 25, 2024 abstract of judgment should be amended to reflect an award of 3,935 days of actual custody credits and three days of conduct credits. Davenport further contends the superior court at the 2024 resentencing erred in imposing a four-year sentence on count two for attempted second degree robbery, which should be reduced to three years. Contrary to Davenport’s contention, the court correctly imposed four years on this count under section 213, subdivision (b), which provides an exception to section 664’s general requirement that the sentence for an attempted crime be one-half the term for the completed crime.

1 Further statutory references are to the Penal Code.

2 We vacate the restitution fine but otherwise affirm the judgment. We order the superior court to amend the 2024 abstract of judgment to reflect that the restitution fine was vacated and to award 3,935 days of actual custody credit and three days of conduct credit.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013 Davenport pleaded no contest to second degree robbery (§ 211; count 1); attempted second degree robbery (§§ 211, 664; count 2); and six counts of petty theft with three prior convictions (§ 666, former subd. (a); counts 3-8). Davenport also admitted as to count 2 that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). In addition, Davenport admitted he had suffered convictions of two prior serious or violent felonies within the meaning of the three strikes law (§§ 667 (b)-(j), 1170.12) and two convictions of serious felonies within the meaning of section 667, subdivision (a)(1). He further admitted he had served 10 prior separate prison terms within the meaning of section 667.5, former subdivision (b). The trial court dismissed one of Davenport’s prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On count 2 for attempted second degree robbery, the court imposed six years (the upper term of three years, doubled), plus 10 years for the two serious felony enhancements, three years for the great bodily injury enhancement, and one year for the prior prison term enhancement, for an aggregate state prison sentence of 20 years. The court suspended imposition of sentence on count 1 for attempted robbery and the six counts of 3 petty theft. The court also ordered a $280 restitution fine under section 1202.4, former subdivison (b)(1). On June 18, 2024 the superior court held a resentencing hearing pursuant to section 1172.75.2 After hearing argument of counsel, the court struck the one-year prior prison term enhancement, but it denied Davenport’s request to strike the two 5-year serious felony enhancements. The court designated count 2 for attempted second degree robbery as the principal term and imposed four years (the middle term of two years, doubled), plus three years for the great bodily injury enhancement and 10 years for the two serious felony enhancements. The court imposed a consecutive term of two years on count 1 for second degree robbery (one-third the middle term, doubled). The court suspended imposition of sentence on the petty theft counts. The court imposed an aggregate sentence of 19 years in state prison. The superior court also ordered the CDCR “to calculate and assess defendant’s credits.” The court did not address whether it was reimposing the $280 restitution fine. The amended abstract of judgment filed on June 25, 2024 correctly reflects the 19-year sentence. It does not include a restitution fine, and it left the section for “credit for time served” blank. Davenport timely appealed.

2 Section 1172.75, subdivision (b), requires the California Department of Corrections and Rehabilitation (CDCR) to identify for the sentencing courts all persons “currently serving a term for a judgment that includes an enhancement described in subdivision (a).” Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court “shall recall the sentence and resentence the defendant.” (§ 1172.75, subd. (c).)

4 DISCUSSION

A. The Restitution Fine Should Be Vacated The Legislature amended section 1465.9, effective January 1, 2025, to add subdivision (d), which provides for the elimination of any unpaid balance of a restitution fine imposed under section 1202.4. (Assem. Bill No. 1186 (2023-2024 Reg. Sess.), Stats. 2024, ch. 805, § 1; People v. Salstrom (2025) 117 Cal.App.5th 596, 600, review granted March 11, 2026, S295038.) Section 1465.9, subdivision (d), provides: “Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.” Davenport contends and the Attorney General agrees, as do we, that to the extent Davenport has an outstanding balance for payment of the $280 restitution fine imposed at his 2013 sentencing, the remaining restitution fine must be vacated under section 1465.9, subdivision (d). (See People v. Kopp (2025) 19 Cal.5th 1, 24 [vacating “unpaid balance of the restitution fine as required by Penal Code section 1465.9, subdivision (d)”]; People v. Salstrom, supra, 117 Cal.App.5th at p. 600 [“Section 1465.9’s plain language evinces a legislative intent to finally, and conclusively, eliminate restitution fines under section 1202.4, subdivision (b) after 10 years.”].)3 3 Davenport and the Attorney General acknowledge that the restitution fine was not reimposed at the 2024 resentencing but state there may be a balance owed based on the imposition of the restitution fine in 2013.

5 B. The Superior Court Must Amend the 2024 Abstract of Judgment To Reflect Davenport’s Total Custody Credits Davenport contends, the Attorney General concedes, and we agree that the superior court erred in not recalculating Davenport’s custody credits at the 2024 resentencing hearing and in failing to include in the amended abstract of judgment the total amount of custody credits the trial court awarded at the initial sentencing hearing in 2013 plus the actual days Davenport served in custody from the initial sentencing to the 2024 resentencing hearing. “When a prison term already in progress is modified as the result of an appellate sentence remand [or resentencing], 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; accord, People v. Sek (2022) 74 Cal.App.5th 657, 673; see § 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 imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.”].) And after having “determined all actual days defendant had spent in custody,” the court should “award[] such credits in the new abstract of judgment.” (Buckhalter, at p. 42.) At Davenport’s October 7, 2013 sentencing hearing, the trial court awarded Davenport 27 days of custody credit, including 24 actual days of custody and three days of conduct credits. As discussed, the 2024 abstract of judgment does not 6 reflect any additional days of custody credit. In his respondent’s brief the Attorney General calculated Davenport’s actual days of custody between the original sentencing hearing on October 7, 2013 and the June 18, 2024 resentencing hearing (including the day of the resentencing hearing) as 3,908 days. (See People v. Morgain (2009) 177 Cal.App.4th 454, 469 [a defendant is entitled to custody credit that includes the date of sentencing].) This calculation is correct. Thus, the superior court must amend the abstract of judgment from the 2024 resentencing hearing to award a total of 3,935 days of actual custody credit (3,908 + 27 days) and three days of conduct credit.

C. The Superior Court Did Not Err in Imposing a Four-year Sentence on Count 2 for Attempted Second Degree Robbery Davenport contends the superior court erred at the 2024 resentencing hearing in imposing a four-year term on count 2 for attempted second degree robbery because the court should have instead imposed one-half the sentence prescribed for the completed crime under section 664, doubled, for a sentence of three years. The court did not err. Section 213, subdivision (a)(2), provides that the punishment for second degree robbery is two, three, or five years in state prison. As Davenport points out, in general, the punishment for an attempt to commit a crime is “one-half the term of imprisonment prescribed upon a conviction of the offense attempted.” (§ 664, subd. (a).) However, the first sentence of section 664 states: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows . . . .” (Italics added.) With respect to attempted second degree robbery, there is a 7 statutory provision prescribing the punishment for attempts. Specifically, section 213, subdivision (b), provides, “Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) [i.e., second degree robbery] is punishable by imprisonment in the state prison.” And section 18 clarifies that “[e]xcept in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison. . . .” Accordingly, as the Court of Appeal concluded in People v. Moody (2002) 96 Cal.App.4th 987, 990, because “section 213, subdivision (b) specifically provides for the punishment of attempted second degree robbery,” the appropriate triad terms for attempted second degree robbery offense are “16 months, two years, or three years.” (Accord, People v. Neely (2009) 176 Cal.App.4th 787, 797 [“Section 213, subdivision (b), when combined with section 18, provides that attempted second degree robbery is punishable by 16 months, two years, or three years in state prison.”].) Thus, the superior court correctly selected the middle term of two years on count 2 for attempted robbery as the principal term, doubled under the three strikes law, for a total of four years.

8 DISPOSITION

The $280 restitution fine imposed by the superior court pursuant to section 1202.4, subdivision (b), is vacated. The court shall prepare an amended abstract of judgment reflecting that the restitution fine has been vacated and awarding Davenport 3,935 days of actual custody credit and three days of conduct credit. The court shall forward a certified copy of the amended abstract of judgment to CDCR. In all other respects, the judgment is affirmed.

FEUER, J. We concur:

SEGAL, Acting P. J.

STONE, J.