Filed 7/24/24 P. v. Alvarado CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

GILBERT MENDOZA 

ALVARADO,

Defendant and Appellant.

 B330283

 (Los Angeles County

 Super. Ct. No. KA014561)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Juan Carlos Dominguez, Judge. Affirmed as 

modified.

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Wyatt E. Bloomfield and Lindsay 

Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Gilbert Mendoza Alvarado (defendant) appeals from the 

judgment following resentencing. On appeal, he contends the 

trial court erred by imposing court security fees and criminal 

conviction assessments and incorrectly calculated his presentence 

custody credits. The People agree, and so do we. Accordingly, we 

modify but otherwise affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

I. Convictions and Original Sentence1

Defendant was convicted in 1993 of (1) second degree 

murder (Pen. Code, § 187, subd. (a)2); (2) assault with a firearm (§ 

245, subd. (a)(2)); (3) shooting at an occupied vehicle (§ 246); and 

(4) possession of marijuana for sale (Health & Saf. Code, § 

11359). With respect to the murder, the jury found true the 

allegation that defendant personally used a firearm (§ 12022.5, 

subd. (a)). 

On March 4, 1993, the trial court sentenced defendant to 

an aggregate term of 24 years to life in prison, consisting of 15 

years to life for the second degree murder plus five years for

personal use of a firearm; three years for drug possession; and 

1 As the underlying facts are not in dispute and not relevant 

to the issues on appeal, we provide only a brief overview of the 

procedural background of defendant’s conviction.

2 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

one year for a prior prison term enhancement (§ 667.5, subd. (b)).

The court imposed and stayed prison terms for the assault with a 

firearm and shooting at an occupied vehicle. 

II. Resentencing

On April 19, 2023, the trial court held a resentencing 

hearing pursuant to sections 1172.7 (Stats. 2022, ch. 58, § 11)

and 1172.75 (Stats. 2022, ch. 58, § 12).

3

The trial court vacated defendant’s 1993 sentence and 

resentenced him to an aggregate term of 20 years to life in prison, 

consisting of a life term with a 15-year minimum parole eligibility 

date, plus five years for the firearm enhancement.4 The court 

imposed various fines and fees which included a $40 court 

security fee (§ 1465.8) and a $30 criminal conviction assessment 

(Gov. Code, § 70373) for each of defendant’s convictions. The 

court also awarded defendant 263 days of presentence custody 

credits, which was the same amount of credits awarded at the 

original March 1993 sentencing. 

Defendant filed this timely appeal. 

3 These statutes invalidate, respectively, any sentencing 

enhancement imposed (1) under Health and Safety Code section 

11370.2 for having suffered a prior conviction for specified drug 

offenses (§ 1172.7); and (2) under section 667.5, subdivision (b), 

for having served a prior prison term (§ 1172.75).

4 The court struck the conviction for the drug offense and the 

one-year term for the prison prior, reduced defendant’s conviction 

for assault with a firearm to a misdemeanor and imposed a 

concurrent term, and imposed and stayed the prison term for 

shooting at an occupied vehicle. 
4

DISCUSSION

Defendant raises two issues with respect to his April 2023 

resentencing. Both are meritorious.

I. Unauthorized Court Security Fees and Criminal 

Conviction Assessments

The assessments for each conviction that courts must 

impose pursuant to section 1465.8 and Government Code section 

70373 did not take effect until August 17, 2003 and January 1, 

2009, respectively. (Stats. 2003, ch. 159, § 25; Stats. 2008, ch. 

311, § 6.5.) Because these assessments may be imposed only 

when a defendant is convicted on or after their effective dates 

(People v. Alford (2007) 42 Cal.4th 749, 754-755; People v. 

Castillo (2010) 182 Cal.App.4th 1410, 1414), and because 

defendant’s 1993 convictions occurred long before either 

assessment’s effective date, those assessments must be stricken

from the judgment.

II. Recalculation of Custody Credits

When a resentencing occurs, the trial court—not the prison 

authorities—“must calculate the actual time the defendant has 

already served and credit that time against the ‘subsequent 

sentence.’” (People v. Buckhalter (2001) 26 Cal.4th 20, 23, citing § 

2900.1; see also People v. Saibu (2011) 191 Cal.App.4th 1005, 

1012 [“The sentencing court must determine such time and 

reflect it in the abstract of judgment”].) 

Here, the trial court did not properly calculate the actual 

custody time up to the date of defendant’s resentencing. Instead, 

the court listed the number of actual custody credits calculated at 

the time of the original sentencing (263 days). We are 

empowered to correct this error. (People v. Taylor (2004) 119 
5

Cal.App.4th 628, 647; People v. Turner (2002) 96 Cal.App.4th 

1409, 1415.)

Defendant is entitled to 11,266 days of presentence custody 

credits. That number is calculated by adding the number of 

actual custody days prior to the date of the original sentencing 

(263 days) to the number of days defendant has served in prison 

between March 4, 1993 and the date of his resentencing on April 

19, 2023 (which comes to 11,003 days).

Because we are able to do this calculation ourselves, there 

is no need to remand to the trial court to do so.

DISPOSITION

The judgment is modified to (1) strike the $120 in court 

security fees imposed pursuant to Penal Code section 1465.8; (2) 

strike the $90 in criminal conviction assessments imposed 

pursuant to Government Code section 70373; and (3) award 

defendant 11,266 days of presentence custody credits. As 

modified, the judgment is affirmed. The trial court is directed to 

prepare a corrected abstract of judgment and forward it to the 

Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST