Filed 10/26/20 P. v. Glavish CA2/5

Opinion following transfer from Supreme Court

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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 FIVE

THE PEOPLE,

Plaintiff and 

Respondent,

v.

MICHAEL GLAVISH,

Defendant and 

Appellant.

 B287131

 (Los Angeles County

 Super. Ct. No. PA082516)

APPEAL from an order of the Superior Court of Los 

Angeles County, David Walgren, Judge. Affirmed in part, 

vacated in part, with directions.

David W. Beaudreau, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Senior 
2

Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, Kristen J. Inberg, 

Deputy Attorney General, for Plaintiff and Respondent.

__________________________

In May 2015, defendant and appellant Michael Glavish 

was sentenced to 14 years six months in state prison, 

execution suspended, and granted three years of formal 

probation. In October 2017, following a contested hearing, 

the trial court terminated probation and ordered execution of 

the previously-imposed prison sentence.

In our prior opinion, we rejected Glavish’s argument 

that he was entitled to retroactive relief under Senate Bill 

No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180), because 

the order granting Glavish probation constituted a final 

judgment of conviction, and became final in 2015. (People v. 

Glavish (Sept. 24, 2018, B287131) [nonpub. opn.] (Glavish).) 

We concluded that, to be entitled to retroactive relief, 

Glavish’s case must have still been pending when Senate 

Bill 180 became effective on January 1, 2018. (Ibid.) We 

further concluded that Glavish was entitled to additional 

custody and conduct credits. (Ibid.)

Glavish petitioned for review, which the Supreme 

Court granted. On May 27, 2020, the court transferred the 

matter back to this court with directions to vacate our 

decision in Glavish, and reconsider the cause in light of its 

decision in People v. McKenzie (2020) 9 Cal.5th 40 

(McKenzie).
3

We vacated our original decision in compliance with 

the Supreme Court’s direction. In his supplemental brief 

following transfer back to this court, Glavish argues that he 

is entitled to the retroactive application of all ameliorative 

statutory amendments that have become effective while his 

case has been pending, including Senate Bill 180 and Senate 

Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The 

People argue that Glavish is barred from relief because the 

judgment of conviction in his case was final before either bill 

became effective.

Having reconsidered the matter in light of McKenzie, 

we conclude that Senate Bill 180 and Senate Bill 136 apply 

retroactively to Glavish. We also conclude, as we did in our 

prior opinion, that the record reflects that Glavish was in 

custody between September 11, 2015, and September 14, 

2015, and is entitled to additional presentence credit. The 

sentence is vacated, and the matter remanded for 

resentencing.

PROCEDURAL HISTORY

On May 20, 2015, defendant and appellant Michael 

Glavish pleaded no contest to transporting 

methamphetamine for sale (Health & Saf. Code, § 11379, 

subd. (a) [count 1]),1 possessing heroin for sale (§ 11351 

[count 2]), possessing methamphetamine for sale (§ 11378 

1 All future statutory references are to the Health and 

Safety Code unless otherwise indicated.
4

[count 3]), transporting heroin for sale (§ 11352, subd. (a) 

[count 4]), misdemeanor driving under the influence (Veh. 

Code, § 23152, subd. (e) [count 5]), and two counts of 

misdemeanor obstructing a peace officer (Pen. Code, § 148, 

subd. (a)(1) [counts 6 & 7]). With respect to count 5, Glavish

admitted the allegation that he refused to submit to a 

chemical test. (Veh. Code, § 23612.) He further admitted 

that he had suffered a prior conviction within the meaning of 

section 11370.2, subdivision (a), for violation of section

11379, and served three prior prison terms under Penal 

Code section 667.5, subdivision (b).

The trial court sentenced Glavish to 11 years in prison 

in count 4, consisting of the upper term of 5 years, plus 3

years for the section 11370.2, subdivision (a) enhancement,

and an additional 3 years pursuant to Penal Code section 

667.5, subdivision (b). Glavish received three consecutive 

terms of one year each in counts 1, 6, and 7, plus six months 

in count 5, for a total sentence of 14 years six months. The 

trial court suspended execution of sentence and placed 

Glavish on formal probation for three years.

On October 11, 2017, Senate Bill 180 was signed by 

the Governor. The bill later took effect on January 1, 2018.

On October 25, 2017, the trial court revoked probation 

following a contested hearing, and ordered Glavish to serve 

the previously pronounced sentence of 14 years 6 months in 

state prison.

Glavish appealed to this court on December 22, 2017, 

contending that the three-year term imposed under section 
5

11370.2, subdivision (a) must be stricken because his prior 

conviction for violation of section 11379 no longer constituted

a qualifying conviction for purposes of the statute, following 

the enactment of Senate Bill 180. He further contended that 

the trial court miscalculated his custody and conduct credits.

On September 24, 2018, we issued our opinion in 

Glavish. We held that Glavish was not entitled to 

retroactive relief under Senate Bill 180, because the order 

granting probation constituted a final judgment of 

conviction, and became final in 2015, when the time period 

for Glavish to appeal the order granting probation expired. 

To be entitled to relief, Glavish’s case must have been 

pending when Senate Bill 180 became effective on January 

1, 2018. We ordered the abstract of judgment modified to 

reflect that Glavish was entitled to additional presentence 

custody credits, but otherwise affirmed the judgment.

Glavish filed a petition for review on October 25, 2018, 

which our Supreme Court granted on December 19, 2018,

pending its disposition of People v. McKenzie, S251333.

On January 1, 2020, Senate Bill 136 took effect.

On February 27, 2020, the Supreme Court issued its 

decision in McKenzie, supra, 9 Cal.5th 40. On May 27, 2018, 

the Supreme Court transferred the matter back to this court 

with directions to vacate our decision in Glavish and to 

reconsider the cause in light of McKenzie.
6

DISCUSSION2

Retroactive Applicability of Senate Bills 180 and 136

Senate Bill 180, which became effective on January 1, 

2018, narrows the scope of the three-year enhancement 

under former section 11370.2, subdivision (a) to apply only to 

prior convictions for narcotics sales involving a minor in 

violation of section 11380. (§ 11370.2, subd. (a).) Prior to the 

enactment of the bill, the three-year enhancement under 

section 11370.2, subdivision (a) applied to 11 enumerated 

offenses, including Glavish’s prior conviction for violation of 

section 11379. (Former § 11370.2, subd. (a).) Senate Bill 

180’s amendments to section 11370.2 have been held to 

apply retroactively to all cases that were not yet final when 

the legislation took effect. (People v. Millan (2018) 20 

Cal.App.5th 450, 455–456.)

Senate Bill 136, which became effective on January 1, 

2020, narrowed the scope of the one-year enhancement for 

prior prison terms under Penal Code section 667.5, former 

subdivision (b), to apply only if the prior prison term was 

served for a sexually violent offense, as defined in the 

statute. (Pen. Code, § 667.5, subd. (b).) Glavish’s prior 

felony drug convictions were for violations of sections 

11379.6, subdivision (a) and 11378; he was not convicted for 

2 Because Glavish alleges only sentencing errors, the 

facts underlying his convictions are unnecessary to the 

appeal and we do not include them here.
7

a sexually violent offense and therefore is not subject to the 

enhancements under the new amendment. Senate Bill 136’s 

amendments to Penal Code, section 667.5, subdivision (b), 

also apply retroactively to all cases not yet final on its 

effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 

341–342.)

The People do not contest that, if Glavish’s conviction 

was not final at the time that Senate Bills 180 and 136 

became effective, he is eligible for relief under the 

amendments effected by these Senate bills. The only issue 

before us is whether his case was final at the time the 

amendments came into effect. After reconsidering the issue 

in light of McKenzie, we conclude that Glavish’s case was not 

final when Senate Bills 180 and 136 became effective, and 

that he is therefore entitled to relief.

People v. McKenzie

In McKenzie, our Supreme Court addressed “whether a 

convicted defendant who is placed on probation after 

imposition of sentence is suspended, and who does not timely 

appeal from the order granting probation, may take 

advantage of ameliorative statutory amendments that take 

effect during a later appeal from a judgment revoking 

probation and imposing sentence.” (McKenzie, supra, 9 

Cal.5th 40, 43). Like Glavish, McKenzie argued that the 

amendments effected by Senate Bill 180 applied to him 

retroactively, although he had not appealed the trial court’s 
8

order granting probation. Unlike Glavish, in McKenzie’s 

case, the trial court had suspended imposition of sentence, 

not execution of sentence. The Court of Appeal held that the 

amendments applied to McKenzie because his case was not 

yet final when they became effective, and the Supreme Court 

affirmed.

The McKenzie court discussed the seminal case, In re 

Estrada (1965) 63 Cal.2d 740 (Estrada), which first set forth 

the rule that, absent a clear indication from the Legislature 

to the contrary, it is presumed that the Legislature intended 

ameliorative statutory amendments to “‘apply to every case 

to which [they] constitutionally could apply.’” (McKenzie, 

supra, 9 Cal.5th at p. 44, quoting Estrada, supra, at p. 745.) 

Estrada reasoned that “‘[w]hen the Legislature amends a 

statute so as to lessen the punishment[,] it has obviously 

expressly determined that its former penalty was too severe 

and that a lighter punishment is proper as punishment for 

the commission of the prohibited act. . . . The amendatory 

act imposing the lighter punishment can be applied 

constitutionally to acts committed before its passage 

provided the judgment convicting the defendant of the act is 

not final. This intent seems obvious, because to hold 

otherwise would be to conclude that the Legislature was 

motivated by a desire for vengeance, a conclusion not 

permitted in view of modern theories of penology. . . . [¶]

. . . “A legislative mitigation of the penalty for a particular 

crime represents a legislative judgment that the lesser 

penalty or the different treatment is sufficient to meet the 
9

legitimate ends of the criminal law. Nothing is to be gained 

by imposing the more severe penalty after such a 

pronouncement; the excess in punishment can, by 

hypothesis, serve no purpose other than to satisfy a desire 

for vengeance.”’ ([Estrada, supra,] at pp. 744–745.)” 

(McKenzie, supra, at pp. 44–45.)

McKenzie explained that, although Estrada applied to 

amendments that reduced penal sanctions, the same 

principles had later been applied to amendments that 

completely eliminated sanctions, like the amendments to 

section 11370.2, subdivision (a). (McKenzie, supra, 9 Cal.5th 

at p. 45.) McKenzie emphasized that, with respect to 

retroactivity, “‘[t]he key date is the date of final judgment. If 

the amendatory statute lessening punishment becomes 

effective prior to the date the judgment of conviction 

becomes final then . . . it, and not the old statute in effect 

when the prohibited act was committed, applies.’” (Id. at 

p. 44, citing Estrada, supra, 63 Cal.2d at p. 744.)

The Supreme Court concluded that “when the revisions 

to section 11370.2 took effect, [McKenzie’s] ‘“criminal 

proceeding . . . ha[d] not yet reached final disposition in the 

highest court authorized to review it.”’ [Citations.] On that 

date, ‘the time for petitioning for a writ of certiorari in the 

United States Supreme Court [had not] passed’ [citation]; as 

earlier set forth, the Governor signed the bill containing the 

revisions before [McKenzie] even petitioned this court for 

review of the judgment imposing a prison sentence, and 

when the bill took effect on January 1, 2018, [McKenzie]’s 
10

appeal of his sentence was pending in the Court of Appeal 

pursuant to our December 2017 order granting review and 

remanding the case for reconsideration in light of the 

revisions. Thus, the prosecution had not been ‘reduced to 

final judgment at the time’ the revisions took effect. 

(Estrada, supra, 63 Cal.2d at p. 746.)” (McKenzie, supra, 9 

Cal.5th at p. 45.)

The McKenzie court rejected the People’s argument 

that the order granting probation was a final judgment and 

the “relevant cut-off point under Estrada for applying 

ameliorative amendments is the date the ‘judgment of 

conviction becomes final.’ (Estrada, supra, 63 Cal.2d at 

p. 744.)” (McKenzie, supra, 9 Cal.5th at p. 46.) The People’s 

argument was based on Penal Code 1237, subdivision (a)’s 

provision that “a defendant may appeal ‘from a final 

judgment of conviction’ and that ‘an order granting

probation . . . shall be deemed to be a final judgment within 

the meaning of this section.’” (Ibid.) The court explained, 

“the People err by assuming that when we used the phrase 

‘judgment of conviction’ in Estrada, supra, 63 Cal.2d at page 

744, we were referring only to ‘underlying’ convictions and 

enhancement findings, exclusive of sentence. In criminal 

actions, the terms ‘judgment’ and ‘“sentence”’ are generally 

considered ‘synonymous’ [citation], and there is no ‘judgment 

of conviction’ without a sentence [citation].” (McKenzie, 

supra, at p. 46.) Under Estrada, ameliorative amendments 

apply “in ‘“any [criminal] proceeding [that], at the time of the 

supervening legislation, has not yet reached final disposition 
11

in the highest court authorized to review it.”’” (McKenzie,

supra, at p. 46, quoting People v. Rossi (1976) 18 Cal.3d 295, 

304.)

The Supreme Court emphasized that its conclusion in 

McKenzie was consistent with its prior opinion in People v. 

Chavez (2018) 4 Cal.5th 771 (Chavez). (McKenzie, supra, 9 

Cal.5th at p. 46.) In Chavez, the defendant requested that 

the trial court dismiss his case pursuant to Penal Code 

section 1385 and expunge his record. (McKenzie, supra, at 

p. 46.) The court denied the request because Chavez’s 

probation had ended four years prior, and there was no 

longer a case to dismiss. (Ibid.) “In the course of so holding, 

[the Supreme Court] noted that ‘[u]nder well-established 

case law, a court may exercise its dismissal power under 

[Penal Code] section 1385 at any time before judgment is 

pronounced—but not after judgment is final.’ (Chavez, 

supra, 4 Cal.5th at p. 777.) At the same time, however, we 

expressly rejected the argument that in such cases, the 

‘criminal action terminates’ when ‘the court orders a grant of 

probation.’ (Id. at p. 785.) We therefore concluded that 

Penal Code section 1385’s dismissal ‘power may be exercised 

until judgment is pronounced or when the power to 

pronounce judgment runs out.’ (Chavez, at p. 777.) As 

particularly relevant here, we explained that the ‘criminal 

action’—and thus the trial court’s jurisdiction to impose a 

final judgment—‘continues into and throughout the period of 

probation’ and expires only ‘when th[e] [probation] period 

ends.’ (Id. at p. 784.)” (McKenzie, supra, at pp. 46–47.)
12

The Supreme Court was not “persuaded by the People’s 

argument that probationers who do not file a timely appeal 

from an order granting probation ‘cannot challenge the order 

or the underlying determination of guilt through a later 

appeal.’” (McKenzie, supra, 9 Cal.5th at p. 50.) The court 

explained: “The legal principle associated with this 

argument provides that when a court suspends imposition of 

sentence and grants probation, the defendant’s failure to 

appeal from the order granting probation generally ‘estops’ 

the defendant ‘from claiming error with respect to matters 

occurring before that order,’ but not as to ‘proceedings in 

connection with the revocation of probation and sentencing.’ 

[Citation.] In other words, it ‘merely forecloses action based 

on errors committed at the trial.’ [Citation.] Here, 

defendant does not claim that an ‘error[ ]’ occurred ‘at the 

trial’ [citation] ‘before’ the court ordered probation [citation]. 

Instead, he raises an issue relating to the subsequent 

‘revocation of probation and sentencing’ [citation], based on 

an event—the amendment of section 11370.2—that occurred 

long after the court ordered probation and the time for direct 

appeal lapsed. Thus, defendant could not have raised this 

issue during a direct appeal from the probation order. 

Under these circumstances, defendant’s failure to file such a 

direct appeal does not preclude him from taking advantage 

of ameliorative amendments that took effect while he was 

appealing from the subsequent revocation of his probation 

and imposition of sentence. [Citation.]” (McKenzie, supra, 9 

Cal.5th at p. 50.)
13

Analysis

The People argue that Glavish’s case is readily 

distinguishable from McKenzie, because in McKenzie the 

trial court stayed imposition of sentence, whereas here, 

sentence was imposed, and execution was suspended. The 

People argue that in McKenzie’s case, there was no 

judgment because no sentence had been imposed. In 

contrast, “[w]here[, as here,] a sentence has actually been 

imposed but its execution suspended, [t]he revocation of the 

suspension of execution of the judgment brings the former 

judgment into full force and effect. If a trial court previously 

had imposed sentence, it must order that exact sentence into 

effect.’ [Citation.]” The People reason that where a sentence 

has been imposed, there is a judgment of conviction, which 

bars a defendant from seeking the benefits of a later-enacted 

ameliorative statute. Because Glavish failed to appeal the 

order granting probation in 2015, the case became final 60 

days later,3 and was not pending when Senate Bills 180 and 

136 became effective.

Recently, our colleagues in the Sixth Appellate District, 

addressed this very issue in a case involving the retroactive 

applicability of Senate Bill No. 620 (Reg. Sess. 2017–2018) 

3 A defendant must file a notice of appeal from a 

probation order within 60 days of the order. (People v. 

Ramirez (2008) 159 Cal.App.4th 1412, 1420–1421; see Cal. 

Rules of Court, rule 8.308(a).)
14

(Senate Bill 620),

4 and held that the logic of McKenzie 

applied in a case where the trial court had imposed sentence 

but suspended execution. (People v. Contreraz (2020) 53 

Cal.App.5th 965, 970–971 (Contreraz).) The Sixth District 

observed the McKenzie court’s heavy reliance on its opinion 

in Chavez, and looked to Chavez for guidance on the issue. It 

noted that, “[i]n reaching its decision, the California 

Supreme Court considered when a final judgment is 

pronounced in cases where a trial court grants probation. 

(Chavez, supra, 4 Cal.5th at p. 777.) The court explained 

that, ‘[g]oing as far back as Stephens v. Toomey (1959) 51 

Cal.2d 864, we have explained that neither form[ ] of 

probation—suspension of the imposition of sentence or 

suspension of the execution of sentence—results in a final 

judgment.’ (Id. at p. 781.) ‘In a case where a court suspends 

imposition of sentence, it pronounces no judgment at all, and 

a defendant is placed on probation with “no judgment 

pending against [him or her].” [Citation.] In the case where 

the court suspends execution of sentence, the sentence 

constitutes “a judgment provisional or conditional in nature.” 

[Citation.] The finality of the sentence “depends on the 

outcome of the probationary proceeding” and “is not a final 

judgment” at the imposition of sentence and order to 

4 Senate Bill 620 amended Penal Code sections

12022.5, subdivision (c) and 12022.53, subdivision (h) to 

permit a trial court to exercise its discretion to strike firearm 

enhancements imposed pursuant to Penal Code sections

12022.5 and 12022.53 in the interests of justice.
15

probation.’ (Ibid.) There is no final judgment in either of 

these situations because ‘[d]uring the probation period, the 

court retains the power to revoke probation and sentence the 

defendant to imprisonment’ under sections 1203.2 and 

1203.3. (Chavez, supra, at p. 782.) ‘[T]he court’s power to 

punish the defendant, including by imposing imprisonment, 

continues during the period of probation.’ (Ibid.)” 

(Contreraz, supra, at p. 971.)

The Sixth District concluded that Contreraz was 

eligible for relief under Senate Bill 620. It reasoned that 

“Contreraz was ordered to probation in September 2017, and 

Sen. Bill 160 took effect on January 1, 2018, ‘after the court 

ordered probation and the time for direct appeal lapsed.’ 

(McKenzie, supra, 9 Cal.5th at p. 50.) Contreraz could not 

have argued on direct appeal that the trial court would, in 

the future, have the discretion to strike or dismiss the 

firearm enhancement imposed under section 12022.5.” 

(Contreraz, supra, 53 Cal.App.5th at p. 971.)

In People v. Diaz Martinez (2020) 54 Cal.App.5th 885

(Diaz Martinez), our colleagues in Division Six of the Second 

District of the Court of Appeal recently held that the 

ameliorative benefits of Senate Bill 136 applied retroactively 

to an order revoking a sentence of mandatory supervision

imposed as part of a split sentence under the Criminal 

Justice Realignment Act. (Id. at p. 889.) Likening 

mandatory supervision to a period of probation, the Diaz 

Martinez court stated “a split sentence consisting of a county 

jail term followed by a period of mandatory supervision does 
16

not automatically become a final judgement of conviction for 

purposes of Estrada retroactivity when the time to appeal 

from the imposition of that sentence expires. Where, as 

here, the trial court subsequently revokes supervision and 

the Legislature enacts an ameliorative statute prior to or 

during the pendency of an appeal from the revocation order, 

the defendant is entitled to seek relief under the new law.” 

(Id. at p. 889.) Relying on Chavez, the Diaz Martinez court 

rejected the People’s effort to distinguish McKenzie as they 

do here: “That McKenzie considered a case where imposition 

of sentence was suspended, while mandatory supervision 

involves suspension of the execution of sentence, does not 

change our conclusion.” (Id. at p. 893.)

We agree with the reasoning of our sister courts in 

Contreraz and Diaz Martinez. It is notable that, although 

the Court of Appeal in People v. McKenzie (2018) 25 

Cal.App.5th 1207, focused heavily on the differences between 

imposition of sentence and suspension of sentence, going so 

far as to comment that it would not hold that ameliorative 

amendments apply when the sentence is imposed (see id. at 

pp. 1213–1215), in affirming the Court of Appeal, the 

Supreme Court did not rely on this reasoning, but instead 

based its decision on the principles outlined in Estrada and 

Chavez. Chavez explained that “the pendency of a criminal 

action continues into and throughout the period of 

probation—when the court may still punish the defendant—

but expires when that period ends.” (Chavez, supra, 4 

Cal.5th at p. 784.) Glavish’s period of probation ended with 
17

the trial court’s revocation order, which he timely appealed. 

During the time his appeal was pending, Senate Bills 180 

and 136 came into effect. Under the reasoning of Chavez, 

Glavish’s case was not yet final when Senate Bills 180 and 

136 became effective. He is therefore entitled to relief.

Finally, the People argue that People v. Scott (2014) 58 

Cal.4th 1415 (Scott), supports the position that Glavish’s 

case was final in 2015. In Scott, the Supreme Court held 

that the defendant was ineligible for jail under the Criminal 

Justice Realignment Act (the Act) because he had been 

“sentenced” at the time that sentence was imposed. (Id. at 

p. 1423.) We do not believe that Scott’s holding, which 

defines what “sentenced” means in the context of the Act,

defines when an ameliorative amendment “constitutionally 

could apply.” (Diaz Martinez, supra, 54 Cal.App.5th at 

p. 894 [“the issue in Scott was when the defendant was 

sentenced for purposes of the Realignment Act—i.e., when 

the sentence was originally imposed and suspended, or when 

the court lifted the suspension and ordered the sentence to 

be executed—not when that sentence became final”].)

We conclude that the three-year section 11370.2, 

subdivision (a) enhancement and the three 1-year prior 

prison term enhancements under Penal Code section 667.5, 

subdivision (b) are no longer authorized sentences.
18

Custody Credits

On appeal, Glavish contended that he was entitled to 

between 4 and 57 additional custody and conduct credits. 

The minute order dated September 11, 2015, reflected that 

Glavish was remanded to county jail on that date, and the 

minute order dated September 14, 2017, reflected that he 

was to be conditionally released to a representative of 

Recovery Network Resources for the purposes of being 

transported to that program on that date. We therefore 

concluded that Glavish was entitled to an additional four

custody credits and four conduct credits.5 We ordered the 

judgment modified and the abstract of judgment amended 

accordingly. We concluded that the record was insufficient 

to permit us to make a determination regarding Glavish’s 

custody status between September 15, 2015, and November 

6, 2015.

Following transfer back, the issue of actual custody 

credit is moot. “When, as here, an appellate remand results 

in modification of a 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.’ (§ 2900.1.)” (People v. 

Buckhalter (2001) 26 Cal.4th 20, 23 (Buckhalter).)

5 Conduct or “good time” credits are accrued at a rate of 

two days for every two days of actual custody. (People v. 

Chilelli (2014) 225 Cal.App.4th 581, 588.)
19

In contrast, the trial court does not normally 

recalculate conduct credits at resentencing, because a 

defendant may earn additional conduct credits “only under 

the so-called worktime system separately applicable to 

convicted felons serving their sentences in prison. (§§ 2930 

et seq., 2933.)” (Buckhalter, supra, 26 Cal.4th at p. 23.) 

However, because the record demonstrates that Glavish is 

entitled to four additional days of conduct credit for time 

served between September 11, 2015, and September 14, 

2015, the trial court’s judgment following resentencing 

should so reflect.

With respect to any credit earned between September 

15, 2015, and November 6, 2015, the record before us is

insufficient to make a determination. The parties remain 

free to litigate any credit issue, if they so choose, in the trial 

court. (See People v. Kennedy (2012) 209 Cal.App.4th 385, 

394; People v. Fares (1993) 16 Cal.App.4th 954, 958; People 

v. Hyde (1975) 49 Cal.App.3d 97, 102; see also Pen. Code, 

§ 1237.1.)
20

DISPOSITION

The sentence is vacated and the matter remanded to 

the trial court for resentencing with the following 

considerations: (1) the three-year section 11370.2, 

subdivision (a) enhancement and the three 1-year prior 

prison term enhancements under Penal Code section 667.5, 

subdivision (b) are no longer authorized sentences; and (2) 

the number of conduct credits must be increased by an 

additional four days. In all other respects, the judgment of 

conviction is affirmed. The court is directed to forward 

certified copies of the amended sentencing orders and 

abstract of judgment to the appropriate entities.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.