Filed 5/24/24 P. v. Solorio CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JAVIER SOLORIO,

Defendant and Appellant.

F084298

(Super. Ct. No. F18904920)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. 

Corona, Judge.

J. Edward Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, 

Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Heather S. 

Gimle, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
2.

Defendant Francisco Javier Solorio assaulted a fellow inmate while he was serving 

a prison sentence for a first degree murder conviction. After this court reversed 

defendant’s sentence for the assault, defendant was resentenced and awarded 2,582 days 

of custody credits. Defendant contends the trial court incorrectly calculated his custody 

credits because he was not awarded actual time credits or conduct credits through his 

resentencing date for the assault. Defendant requests the matter be remanded for the trial 

court to recalculate custody credits and to amend the abstract of judgment to show his 

sentence for both cases.

The People agree the trial court incorrectly calculated defendant’s custody credits 

and the matter must be remanded to recalculate his credits. The People argue, though,

that defendant’s conduct credits must be calculated by the Department of Corrections and 

Rehabilitation (CDCR), not by the trial court.

We conclude the trial court incorrectly sentenced defendant by failing to merge 

defendant’s two sentences into a single aggregate sentence and shall therefore vacate 

defendant’s sentence. Upon remand to the trial court for resentencing, the court must 

recalculate defendant’s custody credits.

FACTUAL AND PROCEDURAL SUMMARY1

On July 29, 2015, defendant was convicted of murder (Pen. Code,2 § 187, 

subd. (a)) with a firearm enhancement (§ 12022.53, subd. (d)) in Imperial County case 

1 Parts of the background are incorporated from our nonpublished opinion in defendant’s 

prior direct appeal in this case, People v. Solorio (Oct. 13, 2021, F081602) (Solorio I), which 

defendant relies upon in presenting his statement of the case. We construe defendant’s reliance 

on our prior opinion as a request for judicial notice. Because that opinion is relevant to the 

procedural background of this case, and because the People do not object to consideration of that 

opinion, the request for judicial notice is granted. (Evid. Code, §§ 452, subd. (d), 459, 

subds. (a)–(c).) Other facts and procedural history are drawn from the probation officer’s 

reports. The facts related to defendant’s underlying convictions are omitted because they are not 

relevant to the issues raised on appeal.

2 All further statutory references are to the Penal Code.
3.

No. JCF30660 (the Imperial County case), and was sentenced to 50 years to life in state 

prison.

On May 2, 2017, while serving his prison term, defendant assaulted another 

inmate.

On November 16, 2017, the Fourth District Court of Appeal reversed defendant’s 

murder conviction in the Imperial County case and remanded the case back to the trial 

court for a new trial. (People v. Solorio (2017) 17 Cal.App.5th 398.)

On April 3, 2018, defendant was reportedly released from custody, but was 

rearrested that same day pending a new trial and placed in county jail.

On July 24, 2018, the Fresno County District Attorney filed a complaint in the 

present case (the Fresno County case), case No. F18904920, charging defendant with 

assault with a deadly weapon by a prisoner (§ 4501, subd. (a); count 1). The complaint 

further alleged defendant had suffered a prior strike conviction within the meaning of the 

“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

On May 22, 2019, the murder charge in the Imperial County case was amended to 

voluntary manslaughter (§ 192, subd. (a)). Defendant was sentenced to 18 years in state 

prison for this offense.

3

 On June 7, 2019, defendant started his new prison term.4

On January 31, 2020, defendant pled no contest in the Fresno County case to an

amended charge of assault by means of force likely to produce great bodily injury by a 

prisoner (§ 4501, subd. (b)). Defendant also admitted the prior strike allegation. On 

August 10, 2020, the trial court sentenced defendant to four years (two years doubled for 

the prior strike). The court ordered the sentence to be served consecutively to the 

sentence for defendant’s Imperial County case.

3 Our prior opinion inadvertently states the sentence was for an indeterminate term of 

“18 years to life,” but as the probation officer’s report reflects, and as the parties agree, the 

sentence was for a determinate term of 18 years. (Solorio I, supra, F081602.)

4 The record for the Imperial County case, including the abstract of judgment, is not part of 

the record before this court.
4.

Defendant appealed his sentence for the Fresno County case arguing the trial court 

should have sentenced him pursuant to section 1170.1, subdivision (a) instead of 

section 1170.1, subdivision (c). On October 13, 2021, in Solorio I, this court agreed with 

defendant, vacated his sentence, and remanded the matter for resentencing. (Solorio I, 

supra, F081602.)

Upon remand, the trial court held a resentencing hearing on March 10, 2022. 

Defendant raised the issue of time credits “from the last sentencing.” The court 

continued the hearing to obtain an updated calculation of defendant’s credits from the 

probation officer.

On March 29, 2022, the probation officer issued a supplemental report 

recommending zero days of time credit for defendant. The report stated in pertinent part: 

“As the defendant is still a sentenced prisoner, serving an 18-year term in Imperial 

County, pursuant to [section 2900.5, subd. (b)], he is not entitled to time credits.” The 

trial court discussed the report with the parties at a sentencing hearing on April 7, 2022. 

Defendant argued he was entitled to credit for the period from the assault on May 2, 

2017, through when he returned to prison on June 7, 2019. The court again continued the 

hearing to provide time for probation to research the issue.

The probation officer prepared another supplemental report on April 12, 2022. 

The report stated in relevant part: “One period of presentence custody may be applied 

only once to multiple offenses for which consecutive sentences are ordered. 

[Section 2900.5, subd. (b)]; People v. Adrian (1987) 191 Cal.App.3d 868, 876–877

[(Adrian)]; People v. Esparza (1986) 185 Cal.App.3d 458, 469. As such, additional 

custody credits awarded in this matter would be considered duplicate credit.” The report 

went on to state that if the court elected to award defendant additional time credits, he 

would be entitled to 309 days of actual time from August 2, 2018, the date of the order of 

production, through June 6, 2019, the date before defendant began serving his prison term 

for the Imperial County case, and 308 days for good time/work time.
5.

On April 21, 2022, the trial court continued the sentencing hearing again and 

ordered probation to communicate with CDCR about time credits and appear at the next 

hearing.

On May 3, 2022, the trial court held another resentencing hearing. With respect to 

time credits, the probation officer stated: “Pursuant to [section 2900.5, subdivision (b)], 

on a consecutive term the defendant is only entitled to one set of consecutive time credits. 

So if it’s the [c]ourt’s intention to impose a consecutive term for this new Fresno County 

case the defendant would be getting the benefit of all of those time credits earned on his 

Imperial County case toward this new aggregate term.” The probation officer reported 

she had spoken with Imperial County’s probation department to obtain “the actual and the 

conduct credits that [defendant] was awarded in that county.” The probation officer 

further stated: “Since his initial arrest date for the Imperial County case that was 

March 22nd, 2013, so he remained in custody either in Imperial County Jail or CDCR 

until his new sentencing date of March 29th, 2019. So the time credits that he was 

awarded for that duration was 2,246 actual days, 336 good time, work time days, and 

those were calculated at 15 percent pursuant to [section 2933.1] for a total of 2,582 days.”

The trial court then sentenced defendant to one year four months (one-third of the 

middle term) for the Fresno County case to be served consecutive to his sentence for the 

Imperial County case. The court struck defendant’s strike for sentencing purposes. The 

court awarded defendant 2,582 days of custody credit based on the probation officer’s 

calculations. Defendant asked if he “get[s] credits for the time served.” The probation 

officer responded that defendant “gets credit for all of the time he’s been in custody in 

Imperial County. It’s going towards the total aggregate term.” The probation officer 

further stated: “He’s getting no additional credit for our Fresno County case because he 

was in custody on another matter which was his Imperial County case. [¶] ... [¶] So he’s 

not going to get duplicate credit but he will get credit for, like I said, the entire time he’s 

been both in Imperial County Jail and CDCR custody toward this whole—toward both 
6.

cases combined.” In response, defendant argued “the Imperial County conviction also 

included a one third consecutive case and [he] got the time credits for that which resulted 

in pretty much a time served, even though it was a consecutive sentence so [he does not]

see why it doesn’t apply to this one too.” Defendant continued to argue he was entitled to 

“presentence credit” from the time of the assault until his return to prison on the primary 

term. The probation officer noted defendant was given credits from his original arrest 

date toward the aggregate term. Defendant responded, “those credits are already given to 

[him] by Imperial County” and he should receive credits from the date of the Fresno 

County offense. The probation officer noted that “with a consecutive term it’s one set of 

time credits.” The court rejected defendant’s continued arguments that he was also 

entitled to presentence credits against his Fresno County case.

The abstract of judgment issued on May 5, 2022, only identifies defendant’s term 

for the assault although it lists the Imperial County case in the section for incomplete 

consecutive sentences. The abstract states defendant’s total sentence as one year

four months.

Defendant filed a timely notice of appeal. On December 12, 2022, after filing the 

notice of appeal, defendant sent a letter to the trial court requesting recalculation of his 

custody credits and asserting entitlement to credit from March 22, 2013, through May 3, 

2022. On January 26, 2024, the trial court ordered the clerk to forward a copy of this 

letter to the probation department and the parties. The court further ordered the probation 

department and/or the parties to contact the clerk for a calendar setting if a further 

hearing is necessary. The record does not indicate a response from the probation 

department or the parties.

DISCUSSION

I. Pronouncement of Sentence

Defendant notes that when a trial court imposes determinate sentences from 

separate cases, the court must merge the sentences into a single aggregate term and apply 
7.

custody credits against the aggregate sentence. Defendant indirectly raises an issue with 

the abstract of judgment5 by his request that upon remand the trial court amend the 

abstract to reflect the sentence and credit for both his cases.6 The People agree, as do we, 

the Fresno County court “should have re-sentenced [defendant] to a single aggregate term 

of imprisonment” for both cases.

When there are two separate cases, each with a determinate term, section 1170.1, 

subdivision (a)7 and California Rules of Court,8rule 4.4529require the sentencing court 

5 A third amended abstract of judgment issued on March 7, 2023, after defendant filed his 

notice of appeal. This abstract suffers from the same deficiency discussed herein regarding the 

lack of a single aggregate term and states defendant was awarded zero days of custody credit. 

We thus presume the issues raised in defendant’s appeal remain viable.

6 Because defendant raises, albeit obliquely, an issue with the abstract of judgment in his 

appeal, the challenge to the custody credits was not the sole issue raised by defendant and the 

appeal is not barred by section 1237.1. (§ 1237.1 [a defendant may not file an appeal solely to 

challenge the calculation of presentence custody credits unless the defendant “first presents the 

claim in the trial court at the time of sentencing, or ... first makes a motion for correction of the 

record in the trial court”].) Even if the sole issue was defendant’s custody credits, the parties do 

not dispute defendant complied with section 1237.1 because he objected to the calculation of 

custody credits at sentencing and requested recalculation of his credits by his December 12, 2022 

letter to the trial court.

7 Section 1170.1, subdivision (a) provides in relevant part that “when any person is 

convicted of two or more felonies, whether in the same proceeding or court or in different 

proceedings or courts, and whether by judgment rendered by the same or by a different court, 

and a consecutive term of imprisonment is imposed under [s]ections 669 and 1170, the aggregate 

term of imprisonment for all these convictions shall be the sum of the principal term, the 

subordinate term, and any additional term imposed for applicable enhancements .... The 

principal term shall consist of the greatest term of imprisonment imposed by the court for any of 

the crimes, including any term imposed for applicable specific enhancements. The subordinate 

term for each consecutive offense shall consist of one-third of the middle term of imprisonment 

prescribed for each other felony conviction for which a consecutive term of imprisonment is 

imposed ....”

8 All further references to rules are to the California Rules of Court.

9 Rule 4.452 provides in pertinent part: “(a) If a determinate sentence is imposed under 

section 1170.1[, subdivision] (a) consecutive to one or more determinate sentences imposed 

previously in the same court or in other courts, the court in the current case must pronounce a 

single aggregate term, as defined in section 1170.1[, subdivision] (a), stating the result of 

combining the previous and current sentences. In those situations: [¶] (1) The sentences on all 

determinately sentenced counts in all the cases on which a sentence was or is being imposed 

must be combined as though they were all counts in the current case. [¶] (2) The court in the 
8.

to impose a single aggregate term for both cases. (In re Reeves (2005) 35 Cal.4th 765, 

772–773 [“Under the Determinate Sentencing Act (§ 1170 et seq.), multiple consecutive 

determinate terms must be combined into a single, ‘aggregate term of imprisonment for 

all [such] convictions’ (§ 1170.1, subd. (a)) that merges all terms to be served 

consecutively and complies with the rules for calculating aggregate terms ....”]) 

Determinate sentences must be combined whether they originate from the same court or a 

different court. (§ 1170.1, subd. (a); see, e.g., People v. Phoenix (2014) 231 Cal.App.4th 

1119, 1122–1125 (Phoenix) [Yolo County trial court imposed single aggregate term 

comprised of the defendant’s sentences from Yolo County and Sacramento County].)

The trial court here was thus obligated to impose a single aggregate term 

combining defendant’s sentences from Imperial County and Fresno County. Instead of 

aggregating all the terms, the court imposed the middle term for the Fresno County case 

and ordered this sentence to be served consecutive to the sentence imposed by Imperial 

County. The abstract of judgment only identifies the sentence imposed for Fresno 

County and simply lists the Imperial County case number.

We therefore vacate defendant’s sentence and remand the matter for the trial court 

to pronounce a single aggregate term.

II. Calculation of Custody Credits

Defendant argues he is entitled to a total of 3,830 days of custody credit consisting 

of 3,330 actual days in custody from his initial arrest for the Imperial County offense on 

March 22, 2013, through his resentencing date in Fresno County of May 3, 2022, and an 

additional 500 days for 15 percent conduct credits. The People agree the trial court erred 

and defendant is entitled to all his actual credits to date when he was resentenced on 

May 3, 2022. The People, however, calculate 3,327 actual days between defendant’s 

initial arrest on March 22, 2013, through the resentencing on May 3, 2022. While the 

current case must make a new determination of which count, in the combined cases, represents 

the principal term, as defined in section 1170.1[, subdivision] (a). The principal term is the term 

with the greatest punishment imposed including conduct enhancements....”
9.

People agree the trial court must calculate the amount of defendant’s actual time and local 

conduct credits under section 4019, the People argue defendant’s conduct credits while in 

prison must be calculated by CDCR, not the court.

At the outset, we note that defendant’s claim regarding custody credits at 

sentencing differs to some extent from the claim he raises on appeal. Specifically, 

defendant did not assert at sentencing entitlement to credit for the period after he was 

sentenced by Imperial County in 2019, for which he now alleges entitlement to credit. 

Because defendant raised the issue of entitlement to credit for this period in his 

December 12, 2022 letter to the trial court requesting recalculation of his custody credits

(section 1237.1) and to assist the court in recalculating defendant’s custody credits upon 

remand,10 we address both claims.

A. Duplicate Credits

During the May 3, 2022 resentencing hearing, the probation officer said Imperial 

County reported to her that defendant was awarded custody credit of 2,582 days, 

consisting of 2,246 actual days and 336 days for conduct credit for the period from his 

initial arrest until he was resentenced. Defendant confirmed during the hearing that he 

was given credits by Imperial County. Specifically, defendant stated he “got the time 

credits” for his Imperial County conviction and later reiterated “those credits are already 

given to [him] by Imperial County.” Defendant, however, argued he was entitled to 

“presentence credit” from the time of the assault on May 2, 2017, until his return to 

prison on the primary term. Defendant essentially argued for duplicate credit against the 

terms for both Imperial County and Fresno County for the period he was in custody after 

10 Calculation of custody credits is notoriously difficult. “ ‘Probably the only sure 

consensus among the appellate courts is a recognition that section 2900.5, subdivision (b), is 

“difficult to interpret and apply.” [Citation.] As we have noted, in what is surely an 

understatement, “[c]redit determination is not a simple matter.” ’ ” (In re Marquez (2003) 30 

Cal.4th 14, 19.)
10.

he committed the assault until he returned to prison. We conclude this argument was 

properly rejected.

Defendants are entitled to credit against their sentence for all actual days of 

custody. (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter); §§ 2900, subd. (c), 

2900.1, 2900.5, subd. (a).)11 “Calculation of custody credit begins on the day of arrest 

and continues through the day of sentencing.” (People v. Rajanayagam (2012) 211 

Cal.App.4th 42, 48.) Prisoners may also earn “conduct credit” pursuant to section 4019 

for “work and good conduct during presentence incarceration.” (People v. Duff (2010) 50 

Cal.4th 787, 793; Buckhalter, at p. 30; §§ 4019, subds. (a)–(c), 2900.5, subd. (a).) The 

court imposing sentence must “calculate the exact number of days the defendant has been 

in custody ‘prior to sentencing,’ add applicable good behavior credits earned pursuant to 

section 4019, and reflect the total in the abstract of judgment.” (Buckhalter, at p. 30; 

Duff, at p. 793; § 2900.5, subd. (d).)

Section 2900.1 provides that “[w]here 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.”

Section 2900.5, subdivision (b) further provides that “credit shall be given only 

where the custody to be credited is attributable to proceedings related to the same conduct 

for which the defendant has been convicted. Credit shall be given only once for a single 

11 Section 2900.5, subdivision (a) provides that “[i]n all felony and misdemeanor 

convictions, either by plea or by verdict, when the defendant has been in custody, including, but 

not limited to, any time spent in a jail, camp, work furlough facility, halfway house, 

rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential 

institution, all days of custody of the defendant, including days ... credited to the period of 

confinement pursuant to [s]ection 4019, ... shall be credited upon his or her term of 

imprisonment ....”
11.

period of custody attributable to multiple offenses for which a consecutive sentence is 

imposed.” (§ 2900.5, subd. (b).)

In In re Rojas (1979) 23 Cal.3d 152, our Supreme Court first grappled with the 

difficulties in calculating custody credits under section 2900.5. The defendant in Rojas

was convicted of manslaughter and sentenced to state prison. (Rojas, at p. 154.) The 

defendant was charged with an unrelated murder a year later and transferred from state 

prison to county jail to await trial on that charge. (Ibid.) The defendant sought credit for 

the time he was held in county jail against his resulting second degree murder conviction. 

(Id. at p. 155.) The Supreme Court denied this asserted credit, holding “that a defendant 

is not to be given credit for time spent in custody if during the same period he is already 

serving a term of incarceration.” (Id. at pp. 155–156.) The court rationalized that 

“[t]here is no reason in law or logic to extend the protection intended to be afforded 

one merely charged with a crime to one already incarcerated and serving his sentence for 

a first offense who is then charged with a second crime. As to the latter individual the 

deprivation of liberty for which he seeks credit cannot be attributed to the 

second offense.” (Id. at p. 156.)

Ten years after Rojas, the Supreme Court revisited section 2900.5 in In re Joyner

(1989) 48 Cal.3d 487. The defendant in Joyner was arrested in Florida for crimes 

committed there. (Id. at p. 489.) The Florida authorities placed a hold on Joyner at 

California’s request for unrelated crimes committed in this state. (Id. at pp. 489–490.) 

Joyner was convicted and sentenced in Florida for his offenses there and given credit 

against that sentence for his presentence custody. (Id. at p. 490.) Joyner was then 

extradited to California where he negotiated guilty pleas to the California charges. (Ibid.) 

The trial court denied Joyner’s request for presentence custody credit for his time served 

in Florida and California. (Ibid.) The Supreme Court concluded Joyner “failed to 

demonstrate that his presentence custody was, within the meaning of section 2900.5, 

‘attributable to’ anything other than the Florida proceedings.” (Id. at p. 492.) Applying 
12.

the logic of Rojas, the Supreme Court rejected Joyner’s claim to presentence custody 

credit. (Joyner, at p. 492.)

Pursuant to Rojas, “section 2900.5 does not allow a prisoner dual credit against a 

new criminal sentence for periods during which he was serving time for another, 

unrelated crime, even if the new matter was simultaneously pending.” (People v. Bruner

(1995) 9 Cal.4th 1178, 1188.) “[C]onsistent with Rojas and Joyner, ... where a period of 

presentence custody stems from multiple, unrelated incidents of misconduct, such 

custody may not be credited against a subsequent formal term of incarceration if the 

prisoner has not shown that the conduct which underlies the term to be credited was also 

a ‘but for’ cause of the earlier restraint.” (Bruner, at pp. 1193–1194.) “The test is 

whether the defendant would have been free ‘but for’ his or her incarceration on the 

second crime.” (People v. Gisbert (2012) 205 Cal.App.4th 277, 281.)

Furthermore, pursuant to section 2900.5, subdivision (b), “[o]nly one set of credits 

is given on consecutive sentences imposed in a single proceeding.” (Adrian, supra, 191 

Cal.App.3d at pp. 876–877; People v. Schuler (1977) 76 Cal.App.3d 324, 330, fn. 10 

[“where the defendant is given consecutive sentences he must be regarded as undergoing 

a single continuous term of confinement” and “any credit to be given him pursuant to 

section 2900.5 must be computed against the total term”].) “In the case of multiple 

proceedings leading to terms which are consolidated by the last sentencing court pursuant 

to section 669, the ‘attributable’ limitation [of section 2900.5, subdivision (b)] still 

applies.... [C]redits are not reallocated: they remain assigned only to the proceedings in 

which they were earned.” (Adrian, at p. 877.)

Defendant’s murder conviction in Imperial County was reversed by our sister 

court. When defendant was resentenced for voluntary manslaughter for that offense, the 

Imperial County court resentencing him was obligated to calculate the actual time he had 

already served and credit that time against his new sentence. (§ 2900.1; Buckhalter, 

supra, 26 Cal.4th at p. 23 [“When ... an appellate remand results in modification of a 
13.

felony sentence during the term of imprisonment, the trial court must calculate the actual 

time the defendant has already served and credit that time against the ‘subsequent 

sentence.’ ”].)

While the Fresno County trial court did not impose a single aggregate term as 

required, the court correctly concluded defendant is entitled to only one set of credits for 

his consecutive sentences from the two counties. Credit must be given only once for a 

single period of custody attributable to multiple offenses for which consecutive sentences 

have been imposed. (§ 2900.5, subd. (b).) Because defendant’s sentences will be served 

consecutively, defendant is entitled to one set of credits for all his actual days in custody 

against his total term when the trial court imposes a single aggregate term on remand.

B. Credits Against Single Aggregate Term

We next consider defendant’s argument he is entitled to presentence credit for all 

his actual days in custody until he was resentenced by Fresno County on May 3, 2022.

At first blush, defendant appears to be incorrect because he is not entitled to credit 

for a period of custody during which he was incarcerated for another crime. (In re Rojas, 

supra, 23 Cal.3d at pp. 155–156.) Defendant reportedly began serving his sentence for 

the Imperial County case on June 7, 2019, and was still serving that sentence when he 

was resentenced by Fresno County on May 3, 2022. Based on the current structure of 

defendant’s sentences, he is not entitled to credit for actual days in custody while serving 

time for his prior crime. (Adrian, supra, 191 Cal.App.3d at p. 878 [“Rojas excludes 

section 2900.5 credits whenever the jail time is of the ‘term serving’ variety”].) Yet, if 

defendant’s two sentences had been combined into a single aggregate term, this would 

constitute a modification of his prior Imperial County sentence thereby entitling 

defendant to presentence credit for all actual days in custody until the modification. 

(§ 2900.1; Buckhalter, supra, 26 Cal.4th at p. 23; People v. Saibu (2011) 191 Cal.App.4th 

1005, 1012 (Saibu).)
14.

Saibu is instructive on this principle. In Saibu, the trial court sentenced the 

defendant to a single aggregate term by combining the defendant’s sentences from 

two cases. (Saibu, supra, 191 Cal.App.4th at pp. 1009–1010.) The defendant had been 

in prison serving a previously imposed sentence when his two sentences were combined. 

(Id. at p. 1012.) The defendant argued the trial court erred when it failed to show in the 

abstract of judgment the total number of actual days he had served in prison and county 

jail for one case before the trial court resentenced him and imposed a single aggregate 

term for both cases. (Id. at p. 1011.) The appellate court agreed and explained: 

“Although Buckhalter is not directly on point because it concerns the modification of a 

defendant’s sentence ‘as a result of an appellate sentence remand’ [citation], the same 

principles would appear to apply when a trial court resentences a defendant pursuant to 

... rule 4.452. Certainly, a court can be considered to have modified a defendant’s 

original sentence when the court resentences that defendant to a single aggregate term 

pursuant to rule 4.452. Therefore, under section 2900.1, which specifies that 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,” ’ the trial court should, ‘in its new abstract of judgment, ... 

credit him with all actual days he had spent in custody, whether in jail or prison, up to 

that time[.]’ ” (Saibu, at p. 1012, quoting Buckhalter, supra, 26 Cal.4th at p. 37.) The 

appellate court ordered the trial court to amend the abstract of judgment to include all the 

defendant’s presentence custody in both prison and county jail until his sentences were 

combined. (Saibu, at p. 1013.)

When a trial court imposes an aggregate term, the court is obligated to calculate 

and award the defendant custody credits from all the combined cases. (Saibu, supra, 191 

Cal.App.4th at pp. 1011–1013; Phoenix, supra, 231 Cal.App.4th at pp. 1126–1129.) 

Here, as in Saibu, when the trial court imposes a single aggregate term for defendant’s 

two cases, defendant will have already served part of his sentence in prison and county 
15.

jail. The court is required to recalculate defendant’s custody credits upon resentencing 

and defendant will be entitled to one set of credits for all time served through 

modification of his sentences into a single aggregate term.

The People note that if Fresno County did not have the abstract of judgment from 

Imperial County, the trial court will need to acquire that document to calculate 

defendant’s conduct credits under section 4019. The trial court has a duty to collect the 

information necessary to award defendant all his custody credits and may order the 

probation department to obtain that information from another county if necessary. 

(Phoenix, supra, 231 Cal.App.4th at p. 1127.) We agree the Imperial County abstract of 

judgment would presumably assist the trial court in calculating defendant’s custody 

credits.12 (Id. at p. 1127, fn. 10 [“Normally, the abstract of judgment from the prior case 

would supply all the information the new sentencing court needs.”].) We further agree 

with the People that defendant’s conduct credits must be calculated by CDCR. (Saibu, 

supra, 191 Cal.App.4th at p. 1013, fn. 9; People v. Dean (2024) 99 Cal.App.5th 391,

397.) Upon remand, the trial court must exercise its authority to collect the necessary 

information to ensure defendant is awarded all the custody credits to which he is entitled.

DISPOSITION

The sentence is vacated, and the matter is remanded for resentencing and 

recalculation of defendant’s custody credits.

12 The record before us is unclear how many actual days defendant has been in custody. 

Defendant asserts he has been continuously in county jail or prison since his initial arrest on 

March 22, 2013. The probation officer stated defendant was awarded 2,246 actual days from 

March 22, 2013, through “March 29th, 2019,” but we calculate 2,199 days for this period. The 

probation officer may have misspoken but in the absence of records from Imperial County the 

record is deficient to calculate defendant’s actual days in custody.