Filed 4/2/24 P. v. McNorton CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

DEJUAN ANTHONY 

MCNORTON,

 Defendant and Appellant.

2d Crim. No. B327276

(Super. Ct. No. 18CR11070)

(Santa Barbara County)

Dejuan Anthony McNorton1 appeals from a resentencing 

order pursuant to Penal Code2 section 1172.75. McNorton 

contends, and the Attorney General concedes, that upon 

1 The record on appeal includes three different spellings of 

McNorton’s first name. We will use the spelling used in the 

California Department of Corrections and Rehabilitation records 

and the appellant’s briefs.

2 Further unspecified statutory references are to the Penal 

Code. 
2

resentencing, the trial court erred in delegating recalculation of 

McNorton’s custody credits to the California Department of 

Corrections and Rehabilitation (CDCR). We agree and reverse. 

FACTS AND PROCEDURAL HISTORY

In August 2019, McNorton pleaded no contest to 

kidnapping. (§ 207.) He also admitted one prior strike allegation 

(§§ 667, subds. (b)-(i), 1170.12) and two prior prison term 

allegations (§ 667.5, subd. (b)). The trial court sentenced him to 

12 years in state prison (middle term of five years for kidnapping, 

doubled for the prior strike, plus two consecutive one-year terms 

for the prior prison enhancements). 

After he was sentenced, the Legislature passed section 

1172.75, which provides: “Any sentence enhancement that was 

imposed prior to January 1, 2020, pursuant to subdivision (b) of 

Section 667.5 . . . is legally invalid.” (§ 1172.75, subd. (a).) 

In March 2023, the trial court recalled McNorton’s sentence 

pursuant to section 1172.75. It struck the two invalid prior 

prison term enhancements (§ 667.5, subd. (b)) and resentenced 

McNorton to 10 years in state prison. The court issued an 

amended abstract of judgment directing the CDCR “to 

re-calculate credits.”3

DISCUSSION

McNorton contends, and the Attorney General concedes, 

that the trial court erred in delegating recalculation of 

McNorton’s custody credits to the CDCR and that the court 

should have calculated his custody credits. We agree. 

3 We grant McNorton’s unopposed request for judicial 

notice of the CDCR list and related email correspondence 

identifying McNorton as an individual eligible for recall and 

resentencing pursuant to section 1172.75. 
3

“It is the duty of the court imposing the sentence to 

determine the date or dates of any admission to, and release 

from, custody prior to sentencing and the total number of days to 

be credited pursuant to this section. The total number of days to 

be credited shall be contained in the abstract of judgment.” 

(§ 2900.5, subd. (d).) 

“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.” (§ 2900.1.) “[W]hen a prison term 

already in progress is modified . . . , 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, italics added (Buckhalter).)

Here, McNorton’s original sentence was recalled and he 

was resentenced pursuant to section 1172.75. Upon 

resentencing, the trial court, and not the CDCR, was required to 

calculate his actual custody credits. (Buckhalter, supra, 26 

Cal.4th at p. 29.) Accordingly, we remand the matter with 

direction to the trial court to recalculate McNorton’s custody 

credits for actual time served. 

DISPOSITION

The March 8, 2023, order directing the CDCR to recalculate 

custody credits is vacated. The matter is remanded to the trial 

court with directions to recalculate McNorton’s custody credits for 

actual time served. The clerk of the court shall thereafter 
4

prepare a new abstract of judgment with the trial court’s 

recalculation of actual custody credits. 

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

YEGAN, Acting P. J.

CODY, J.
John F. McGregor, Judge

Superior Court County of Santa Barbara

______________________________

John Derrick, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, William H. Shin and Lindsay Boyd, Deputy 

Attorneys General, for Plaintiff and Respondent.