Filed 8/27/25 P. v. Beard CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed with directions.

Steven S. Lubliner, 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, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Robert Beard of assault with a deadly weapon and misdemeanor sexual battery in 2005. The trial court sentenced him to 39 years to life in prison, a sentence that included two now-invalid one-year enhancements for prior prison terms and two five-year enhancements for serious felony priors. In a resentencing proceeding under Penal Code section 1172.75,¹ the superior court struck the one-year enhancements but expressly retained the two five-year enhancements. On appeal, Beard contends we must remand the case for a new resentencing hearing in light of People v. Walker (2024) 16 Cal.5th 1024 (Walker), which resolved a disagreement in the appellate court over standards for striking or imposing sentence enhancements. Beard argues that because the superior court resentenced him before the Supreme Court decided Walker, it did not understand the scope of its discretion to strike the five-year enhancements, and he is therefore entitled to a new resentencing hearing.

We disagree because nothing in Walker altered the scope of the court’s discretion in a way that would benefit Beard. We agree with Beard, however, that the abstract of judgment must be amended to reflect the correct number of presentence credits, and agree with respondent that the abstract must be amended to strike an expired restitution fine. We thus affirm the judgment with directions to amend the abstract of judgment.

BACKGROUND

On July 2 and 3, 2005, Beard sexually assaulted two women by grabbing their genital areas as they walked down the street. In the first incident, he brandished a screwdriver at both the woman and her male companion.

A jury convicted Beard of two felony counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and two misdemeanor counts of sexual battery (§ 243.4, subd. (e)(1)). The jury found true that Beard suffered two prior strike convictions (§ 667, subds. (b)-(i)) and two prior serious felony convictions (§ 667, subd. (a)) and had served five prior prison terms (§ 667.5, subd. (b)).

The court sentenced Beard to 39 years to life, comprised of two concurrent terms of 25 years to life; five years each for the prior serious felony convictions; one year each for the sexual battery counts;² and one year each for two of the prison priors. The court imposed a $10,000 restitution fine under section 1202.4 and imposed but stayed a $10,000 parole revocation fine under section 1202.45. The court awarded Beard 510 days of custody credits, comprised of 340 days in custody and 170 good time credit days.

In 2019, the Legislature enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590), which eliminated the one-year enhancement for a prior prison term under section 667.5, subdivision (b) except where the term was for a sexually violent offense. (Beard’s prior prison terms were not for sexually violent offenses.) Two years later, the Legislature enacted a statute, later renumbered as section 1172.75, creating a recall and resentencing mechanism for eliminating the invalid enhancements from sentences of defendants in custody. (Sen. Bill No. 483 (2021-2022 Reg. Sess.); Stats. 2021, ch. 728.)

On August 24, 2023, Beard filed a petition for resentencing under section 1172.75 and requested that the court strike not only the now-invalid one-year enhancements for prior prison terms but exercise its discretion under section 1385 to strike the two five-year enhancements for prior serious felony convictions.

The court struck the two newly invalid one-year prior prison term enhancements and stated, “Everything else is going to stay the same.” It corrected the sentence as to the sexual battery counts but otherwise reimposed the original sentence, now totaling 36 years to life in prison, with the same custody credits. The court said nothing about the restitution or parole revocation fines.

DISCUSSION

A. Resentencing Under Sections 1172.75 and 1385

Beard contends we must remand for a new resentencing hearing because the first hearing took place before the Supreme Court issued its opinion in Walker, which clarified the standard for striking enhancements pursuant to section 1385. According to Beard, “the record does not conclusively establish that the trial court would have imposed the same sentence under properly framed discretion.” We disagree because nothing in Walker altered the scope of the superior court’s discretion in a way that could lead to a reduced sentence for Beard.

Section 1172.75 provides that when a court resentences a defendant under the statute, “[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).) “By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly ‘invalid’ enhancements.” (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) Thus, in a case such as this, “the resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.” (People v. Buycks (2018) 5 Cal.5th 857, 893, italics omitted.)

Section 1385, subdivision (a) grants the superior court discretion, “in furtherance of justice, [to] order an action to be dismissed.” As to a sentence enhancement, this includes the “authority to strike the additional punishment or to strike the enhancement altogether.” (People v. Barboza (2021) 68 Cal.App.5th 955, 965.) Subdivision (c) of section 1385 instructs a court how to apply this discretion to strike enhancements. It directs the court to “consider and afford great weight to evidence offered by the defendant to prove that any of [several] mitigating circumstances . . . are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (§ 1385, subd. (c)(2), italics added.)

A defendant is entitled to sentencing decisions made in the exercise of the sentencing court’s informed discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court that is unaware of the scope of its discretion cannot exercise informed discretion. (Ibid.) When the Legislature enacts a new law that alters sentencing standards after a defendant has been sentenced but before the case has become final, we must remand for resentencing only if the new standard has some application to the facts of the case being reviewed. (See People v. Salazar (2023) 15 Cal.5th 416, 431.) The same is true if an appellate decision changes the law. (People v. Thompson (2022) 83 Cal.App.5th 69, 114–116.)

B. Walker Affords No Basis for a Second Resentencing Hearing

As best we can understand, Beard in essence proposes that the decision in Walker requires a new sentencing hearing without regard to whether the change has any bearing on the issues before the trial court. We disagree. Walker held only that in determining whether to dismiss an enhancement, a trial court must engage in a “ ‘holistic balancing,’ ” with no formal presumption for dismissing enhancements. (Walker, supra, 16 Cal.5th at p. 1036.) But nothing in the record suggests the trial court failed to balance all appropriate factors or applied any formal presumption for dismissing enhancements. If the court had applied a formal presumption in favor of dismissing enhancements, that would have favored Beard, not disadvantaged him. Therefore, no resentencing hearing is necessary.

C. The Record Must Be Corrected To Reflect the Correct Number of Presentence Credits

Beard contends the trial court miscalculated by one day the time he served from his original 2005 arrest. He further contends the abstract of judgment produced upon resentencing failed to include the 6,403 days he served between his sentencing in 2006 and resentencing in 2023. (See People v. Buckhalter (2001) 26 Cal.4th 20, 23 [when resentencing results in a 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 new sentence].) The People agree with both contentions, as do we.

Beard was arrested on July 2, 2005, then was released and rearrested on July 3, 2005. The court mistakenly calculated his actual custody credit from the latter date rather than the former. (See People v. Bravo (1990) 219 Cal.App.3d 729, 735 [credits are awarded from the date of arrest through the date of sentencing, with any partial day treated as a whole day]; People v. Boyd (2024) 103 Cal.App.5th 56, 65 [an error in the calculation of credits “is subject to correction whenever brought to the attention of a court that has jurisdiction”].)

We will therefore direct the trial court to amend the abstract of judgment to reflect that Beard received 6,744 days of actual custody credit and 170 days of good time credit, for a total of 6,914 days of presentence credit.

D. Restitution and Parole Revocation Fines

Beard contends his restitution and parole revocation fines must be stricken because the resentencing court did not orally reimpose them. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387 [court clerk cannot add sentencing provisions to the minute order that were not pronounced in open court].) We disagree. After striking the two newly invalid one-year prior prison term enhancements, the court stated, “Everything else is going to stay the same.” This constitutes an oral reaffirmation of the fines.

Respondent nevertheless observes that the restitution fine should be vacated under newly enacted section 1465.9, subdivision (d), which requires any outstanding restitution fine balance over 10 years old to be vacated. We agree. Because Beard’s restitution fine was originally imposed more than 10 years ago, it must be vacated.

Beard argues that in this event, his parole revocation fine must also be vacated because under section 1202.45, a parole revocation fine is imposed “at the time of imposing the restitution fine” and “in the same amount” as the restitution fine. (§ 1202.45, subd. (a).) We disagree.

Although a parole revocation fine is closely related to a restitution fine in that they must be imposed at the same time and in the same amounts, a parole revocation fine serves a different purpose, i.e., to deter a prisoner from violating parole, to incentivize a prisoner’s rehabilitation while on parole, and to recoup costs if parole is violated. (People v. Preston (2015) 239 Cal.App.4th 415, 427, 429.) That purpose retains currency where, as here, an inmate might one day be paroled. No principle or authority supports vacating the parole revocation fine.

DISPOSITION

The order sentencing Beard is affirmed. On remand, the superior court is directed to correct the number of presentence credits, vacate the restitution fine, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

WEINGART, J.

M. KIM, J.