People v. Horner CA4/3

Filed 11/9/26 P. v. Horner CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G065399 v. (Super. Ct. No. 12CF2916) DANIEL VERNON HORNER, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed and remanded with directions. Law Offices of Allen G. Weinberg and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Elizabeth M. Renner, A. Natasha Cortina, and Anne Spitzberg, Deputy Attorneys General, for Plaintiff and Respondent.  In 2014, defendant Daniel Vernon Horner was sentenced to 55 years to life in prison for sexually abusing two children. After the judgment was affirmed on appeal and became final, Horner successfully petitioned for habeas relief on one of the counts—count 4—which caused the case to be transferred back to the trial court for resentencing. At that point, Horner requested full resentencing on all aspects of his sentence under current law. The trial court denied that request and limited resentencing to count 4, the sole count on which habeas relief had been granted. The result was a 10-year reduction in Horner’s sentence. In this appeal, Horner contends the trial court erred by not granting his request for full resentencing. Guided by the California Supreme Court’s recent decision in People v. Esquivias (2026) 20 Cal.5th 734 (Esquivias II), we conclude the trial court did not abuse its discretion by not conducting a full resentencing hearing. In addition, because the court found the circumstances of Horner’s offenses did not warrant further reducing his sentence on count 4 by converting the consecutive sentence on that count to a concurrent one, any error in failing to grant him full resentencing on the other counts was harmless. We thus affirm the amended judgment sentencing Horner to prison for 45 years to life. However, because the trial court failed to calculate Horner’s custody credits, we remand for that limited purpose. FACTUAL AND PROCEDURAL BACKGROUND I. FACTS Horner sexually abused two children in episodes that occurred six years apart. As recounted in this court’s prior opinion on Horner’s direct appeal, the evidence at trial revealed the following: 2  “In October 2006, nine-year-old Harry S. lived with his mother, Lorena S., and two sisters in a motel in Los Angeles County. Lorena was friends with Horner and she allowed him to take Harry for the day. However, Horner claimed he ran out of gas and lost his cell phone and the day excursion turned into an entire weekend at his home in Orange County. Although Horner lived with his girlfriend’s parents, no one was home that weekend. During that weekend, Horner insisted Harry take four showers. Horner joined Harry in the shower and sexually assaulted him during each shower—Horner would rub Harry’s penis for 10 to 15 seconds. Horner also touched Harry’s penis outside of the shower in the bathroom. “On one occasion, Harry got out of the shower and Horner ordered him to ‘turn around’ and put his hands on the wall. Horner threatened to hit and spank Harry if he told anyone. When Harry refused, Horner spanked Harry’s bare buttocks and responded, ‘Is that proof enough for you?’ “On another occasion, after Harry showered and had dressed, Horner told him to drop his pants and his underwear. When Harry refused, Horner pulled down Harry’s pants and underwear. He threatened Harry again and spanked him twice on his bare buttocks. At some point Horner threatened Harry with a knife. Horner approached Harry from behind, held a knife to his penis, and said, ‘“Have faith and trust, if you tell, I will cut it off.”’ “Horner also kissed Harry that weekend. The first time was during the second shower. After Horner rubbed Harry’s penis, Horner kissed him on the cheek. During the fourth shower, Horner ‘French kissed’ Harry, inserting his tongue into Harry’s mouth. Harry estimated Horner kissed him four to six times that weekend. 3  “Horner drove Harry to Lorena’s on Sunday night. Harry, upset and confused, told his two sisters what had happened. Harry’s oldest sister, Vanessa, told Lorena and they took him to a Los Angeles Sheriff’s station the next morning. Harry spoke to a sheriff’s deputy with Lorena present. Harry explained how Horner had repeatedly showered naked with him, rubbed his penis, threatened to cut off his penis with a knife, and hit him. Harry recalled the deputy suggesting he ‘“[g]ive it a week.”’ The deputy reported the matter to the Department of Child and Family Services; the report should have also been sent to the Orange County Sheriff’s Department. “Shortly thereafter, Harry and his family moved to Arizona. Eventually, Horner joined Harry’s family in Arizona and lived with them for a while. Harry and Lorena forgave Horner but did not forget what he had done. Harry avoided being alone with Horner, although they lived with him on several occasions over the course of the next six years. Authorities never contacted Lorena or Harry. “[¶] . . . [¶] “In August 2012, Horner agreed to help his friend’s sister, Rosalyn M., babysit her three-year-old son Vincent J. in Orange County. One night, Rosalyn noticed discoloration and bruising around Vincent’s genitals, above and on his penis. When she asked him what happened, Vincent indicated Horner slapped his penis. Rosalyn touched Vincent’s bruise to confirm it was a bruise and Vincent, said, ‘Owie.’ Rosalyn called child protective services and they advised her to take Vincent to a doctor and not to confront Horner or let him be alone with Vincent. Rosalyn photographed Vincent’s injuries with her cellular telephone. “The next day, Rosalyn took Vincent to the hospital where officers documented his injuries. That same day, officers contacted Horner, 4 who was still at Rosalyn’s home. Horner denied knowing Vincent was injured, with the exception of a skinned knee. He denied hitting, spanking, or abusing Vincent. “A few weeks later, Officer Natalie Nguyen went to Horner’s home and interviewed him. This time Horner said he had not only noticed some bruising on Vincent but he photographed it. Horner maintained the only bruising he saw was near Vincent’s abdomen, although the photographs he took showed bruising and red marks near Vincent’s genitals. Horner claimed he did not tell officers about these injuries because he forgot. Horner denied causing the bruises and said he took the photographs because of an incident involving his son. “Nguyen learned of Harry’s report when she ran Horner’s name through [a law enforcement] database. When Lorena arrived at Horner’s home while Nguyen was there, Lorena refused to speak to Nguyen. At some point, Lorena, Harry, and Horner agreed to tell Nguyen it had been a misunderstanding between Horner and Harry. However, Harry eventually told Nguyen the truth about Horner’s sexual assaults. Officers found child pornography on Horner’s computer that had been downloaded in February 2010 and March 2011. The pornography depicted young children engaging in or personally simulating sexual conduct.” (People v. Horner (Feb. 25, 2016, G050242) [nonpub. opn.].) II. VERDICT, SENTENCE, AND DIRECT APPEAL In 2014, a jury convicted Horner of four counts of lewd and lascivious conduct with a person under the age of 14 (counts 1–3 as to Harry; count 4 as to Vincent) and one count of possessing child pornography (count 5  1 5). (Pen. Code, §§ 288, subd. (a), 311.11, subd. (a).) On counts 1 through 4, the jury also found true allegations Horner sexually abused multiple children for purposes of the One Strike law under section 667.61. Due to the multiple victim findings, Horner faced mandatory sentences of 15 years to life on counts 1 through 3 and an indeterminate life sentence on count 4. In his sentencing brief, defense counsel argued the lewd acts in counts 1 through 3 all occurred during a continuous course of conduct, and the trial court should therefore either apply section 654 to stay execution of punishment on two of those counts or impose concurrent sentences. The prosecution’s sentencing brief advocated for the maximum sentence of 73 years to life in prison. The sentencing hearing took place on June 6, 2014, before Judge Gary S. Paer. As to counts 1 through 3, Judge Paer found that, although they involved the same victim, they occurred on separate and distinct occasions, which allowed Horner ample time to reflect on each of his illegal acts. Therefore, on counts 1 and 2, Judge Paer imposed consecutive sentences of 15 years to life. On count 3, however, Judge Paer imposed a concurrent term of 15 years to life, due to the fact Horner did not have a prior criminal record. Sentencing on count 4 raised an issue that ultimately supplied the basis for Horner’s subsequent petition for writ of habeas corpus. Both sides agreed that, because Horner victimized multiple children, he was subject to a mandatory indeterminate life sentence under section 667.61. However, the parties disagreed regarding the length of Horner’s minimum term. Defense counsel argued the minimum term should be 15 years because Horner was charged with violating subdivisions (b) and (e)(4) of section 1 All further statutory references are to the Penal Code. 6 667.61, which require a term of 15 years to life when the defendant victimizes multiple children. But the prosecutor urged the court to invoke section 667.61, subdivision (j)(2), which requires a term of 25 years to life if one of the victims was under 14 years of age. Although Horner had not been charged with violating subdivision (j)(2), the trial court invoked that provision to sentence Horner to a consecutive term of 25 years to life on count 4. Lastly, on count 5, the trial court imposed a concurrent midterm sentence of two years, making Horner’s total sentence 55 years to life in prison. In 2016, another panel of this court affirmed the judgment on direct appeal in all material respects. (People v. Horner, supra, G050242.) Because Horner did not seek further review after the California Supreme Court denied his petition for review, the judgment became final 90 days later, on August 9, 2016. (See People v. Lizarraga (2020) 56 Cal.App.5th 201, 206 [judgment is final when the time for seeking certiorari review in the United States Supreme Court has expired].) III. HABEAS CORPUS PROCEEDINGS In 2017, Horner filed a petition for writ of habeas corpus alleging his 25-year-to-life sentence on count 4 violated due process. As he did at the time of sentencing, Horner argued he should only have been sentenced to 15 years to life on that count because the prosecution charged him with violating subdivisions (b) and (e)(4) of section 667.61, not subdivision (j)(2). Horner did not challenge any other aspect of his sentence or request full resentencing in the event the trial court granted his petition. The habeas court denied Horner’s petition in May 2018. 7  In 2019, Horner filed a second habeas petition on the same basis. By then, however, there was case authority supporting Horner’s due process argument. In his prayer for relief, Horner asked to be resentenced to 15 years to life on count 4 and for any further relief the court deemed just and proper. After the habeas court issued an order to show cause, the parties agreed to continue the matter several times over the course of several years, pending the California Supreme Court’s decision in In re Vaquera (2024) 15 Cal.5th 706 (Vaquera). The Vaquera decision came down on February 5, 2024. Like Horner, the defendant in that case was convicted of sexually abusing multiple children under the One Strike law. (Vaquera, supra, 15 Cal.5th at p. 715.) Also like Horner, the defendant was sentenced to 25 years to life on one of the counts under section 667.61, subdivision (j)(2), even though he had only been charged with the 15-year-to-life enhancement under subdivisions (b) and (e)(4). (Vaquera, at pp. 714–715.) On review of the defendant’s habeas petition, the Supreme Court found his 25-year-to-life sentence violated due process for lack of notice and directed the trial court to resentence him to 15 years to life on the subject count. (Id. at pp. 717–725.) In so doing, the Supreme Court did not address whether the defendant was entitled to full resentencing in light of that reduction. (Id. at p. 728.) Following the Supreme Court’s decision in Vaquera, the prosecution conceded Horner’s habeas petition had merit, and the habeas judge granted the petition by vacating Horner’s sentence on count 4. The habeas judge then transferred Horner’s case back to Judge Paer for resentencing. 8  IV. RESENTENCING At the resentencing hearing on May 17, 2024, Judge Paer told the parties, “This case was sent from C5 back to this court. There was a habeas granted as to [c]ount 4. It was the [habeas court’s] position that [this court] needed to re-sentence [Horner] on [c]ount 4. The habeas did not address anything else.” Based on that understanding, Judge Paer said he intended to limit resentencing to count 4 and simply reduce Horner’s sentence on that count from 25 years to life to 15 years to life, making his new aggregate sentence 45 years to life in prison. At the request of Horner’s attorney, however, Judge Paer agreed to allow additional briefing on the scope of the resentencing hearing. In his brief, defense counsel argued in favor of applying the “full resentencing rule,” which gives resentencing courts the authority to conduct “‘a full resentencing as to all counts . . . so the trial court can exercise its sentencing discretion in light of the changed circumstances.’” (People v. Buycks (2018) 5 Cal.5th 857, 893–894.) While recognizing Judge Paer did not have authority to strike Horner’s punishment on counts 1 through 4 due to the multiple victim findings, defense counsel argued there were changed circumstances that warranted concurrent sentences on counts 2 and 4, which would reduce Horner’s sentence by another 30 years, down to 15 years to life. In so arguing, defense counsel represented that Horner himself was a victim of childhood sexual abuse. Counsel contended that circumstance contributed to Horner’s criminal conduct and should be considered a mitigating factor in light of various new sentencing laws. (See, e.g., §§ 1385, subd. (c)(2)(E) & (6)(A) [listing childhood trauma, including sexual abuse, as a 9 mitigating circumstance courts must consider when deciding whether to dismiss an enhancement in the interest of justice]; 1170, subd. (b)(6)(A) [creating a presumption in favor of the lower term for a determinate sentence when the defendant has been a victim of childhood sexual violence and that violence was a contributing factor to his crime]; Cal. Rules of Court, rule 4.423(b)(3) [identifying childhood sexual violence as a mitigating circumstance at sentencing].) In arguing for leniency, defense counsel also pointed out Horner was only 22 years old at the time he sexually abused Harry. (See Cal. Rules of Court, rule 4.423(b)(6) [listing as a mitigating circumstance that the defendant was under the age of 26 at time of his crimes].) And defense counsel reiterated the argument first made at Horner’s original sentencing hearing that concurrent sentencing was warranted for all three offenses involving Harry because they were temporally related and reflected only a single episode of aberrant behavior. In its opposition papers, the prosecution urged the trial court to limit the resentencing hearing to count 4, which was the sole basis for Horner’s habeas petition. In support of this limited approach, the prosecution relied on People v. Esquivias (2024) 103 Cal.App.5th 969 (Esquivias I), review granted October 2, 2024, S286371, which was then pending review in the California Supreme Court. In that case, Division Two of the Second District Court of Appeal analyzed the full resentencing rule in the context of a habeas proceeding in which the defendant obtained sentencing relief on part of his overall sentence. While not ruling out the possibility of full resentencing in that context, the court held defendants are not automatically entitled to full resentencing just because a portion of their sentence has been vacated through the habeas process. (Id. at pp. 976–980.) 10  The prosecution also addressed the prospect of full resentencing if Judge Paer should decide that remedy was appropriate in Horner’s case. Based on the circumstances of Horner’s offenses, the prosecution argued Horner posed a threat to public safety and his sentence therefore should not be reduced beyond the 10-year reduction compelled by the habeas grant on count 4. At the resentencing hearing, Judge Paer stated, “It was very clear that [Horner’s] habeas [petition] only dealt with [c]ount 4. [Esquivias I] held that a trial court is not obligated to revisit a [d]efendant’s entire sentence on the habeas review merely because it grants review to revisit a portion of that sentence. So I’m inclined to follow [Esquivias I],” which led Judge Paer to deny Horner’s request for full resentencing. Nevertheless, Judge Paer stated he would be willing to consider whether to resentence Horner from a consecutive to a concurrent term on count 4, which would reduce Horner’s aggregate term to 30 years to life in prison. At that point, defense counsel reiterated the arguments he made in his sentencing brief about why Horner’s childhood sexual abuse justified a reduced sentence under current law. The prosecutor opposed any further reduction in Horner’s sentence on public safety grounds. After hearing argument, Judge Paer said he was willing to assume for purposes of argument that Horner had suffered childhood sexual abuse. However, Judge Paer ultimately decided against a concurrent sentence on count 4. Explaining the basis for his decision, Judge Paer stated the victim in that count “was extremely vulnerable at age three,” and with respect to both victims, Horner “violated a position of trust as a baby-sitter, and he inflicted injury on the three-year-old and there were bruises near the 11 penis. Not only that, but those bruises were photographed and saved on [Horner’s] computer. “[Horner] also lied about his involvement and said he knew nothing about it, which was the farthest thing from the truth because he inflicted it and he saved pictures of it. “Also [Horner] had hit the three-year-old. And not only did he hit the three-year-old, but when we look at Harry he had hit Harry numerous times during that long weekend when he had Harry alone at the house. He also used a weapon on Harry, and he threatened to cut off Harry’s penis with a knife. “These factors are huge factors when we look at danger to the community, as well as this is violent stuff going on with extremely young victims. One is three and one is nine. I understand that there might be medical evidence that [Horner] might have been abused . . . in his past. There might be a report corroborating that. “I look at it this way. That explains why he did those things to Harry and Vincent. That can explain why someone who’s been abused as a child later turns out doing the same thing to others. That’s well documented. That’s not a stretch. But in the [c]ourt’s mind that explains why he did it. “However, the D.A. makes a point that I agree with. It doesn’t mitigate any public safety concerns. And also when we go to [c]ount 4, [that count] deals with Vincent probably the more vulnerable of the two because he’s only three years old. In the [c]ourt’s mind this is a matter of public safety, and I view [Horner] as being dangerous to society in reference to young boys. There is an old saying that the best predictor for future conduct is past conduct. “[¶] . . . [¶] 12  “Also, I want to remind everyone that I also mitigated [Horner’s] sentence a little bit [at his original sentencing hearing] because on [c]ount 3 I ran that concurrent. Everyone forgets. I ran that one concurrent based on his lack of criminal record and I’m certainly going to keep that. I’m not going to touch that. “But again, I’m willing to comply with the law and reduce [the sentence on count 4] from 25 to life to 15 to life. But that is going to be a consecutive sentence. We have two victims here. Both really young. Both real vulnerable. Separate crimes on both of them. Highly offensive crimes. He used force on both of them. He made threats on one of them. It’s not a good factual scenario. Even though [Horner] might have been a victim himself that doesn’t give him a free pass on a victim who is three years old.” With that, Judge Paer reduced Horner’s prison sentence on count 4 from 25 to 15 years to life and left the remainder of his sentence intact, making Horner’s new aggregate sentence 45 years to life. The court also left Horner’s custody credit award intact. While recognizing Horner was entitled to credit for the time he had served in prison, the court ordered the Department of Corrections and Rehabilitation to calculate Horner’s custody credits. DISCUSSION Horner claims he was entitled to full resentencing after receiving habeas relief on count 4. He also claims the matter must be remanded to allow the trial court to calculate his custody credits. We agree with Horner’s second claim, as does the Attorney General. However, we conclude Judge Paer did not abuse his discretion by denying Horner’s request for full 13 resentencing, and even if he did, the error was harmless under the circumstances presented. I. FULL RESENTENCING WAS NOT REQUIRED While Horner’s appeal was pending in this court, the California Supreme Court issued its decision in Esquivias II, supra, 20 Cal.5th 734. Having received supplemental briefing from the parties on that decision, we conclude there is no basis to disturb Judge Paer’s decision to deny Horner’s request for full resentencing. In Esquivias II, the defendant was sentenced to over 100 years in prison, of which roughly 38 years were attributable to mandatory firearm enhancements. (Esquivias II, supra, 20 Cal.5th at p. 739.) After the judgment was affirmed on appeal, but a month before it became final, the Legislature enacted a new sentencing law that gave trial courts the authority to strike the defendant’s firearm enhancements in the interest of justice. Four years later, the defendant filed a petition for habeas corpus requesting retroactive application of the new law. (Id. at p. 740.) The habeas court granted the petition by exercising its discretion to strike the defendant’s firearm enhancements, thereby reducing his sentence by 38 years and four months. (Ibid.) However, the court rejected the defendant’s claim he was entitled to full resentencing with the benefit of all ameliorative laws that had been enacted since he was originally sentenced. (Ibid.) In fact, the court indicated it would not have granted the defendant habeas relief in the first place if it 2 had believed that would reopen the case for full resentencing. (Ibid.) 2 Unlike in Horner’s case, the habeas judge and the resentencing judge were one and the same in Esquivias II. (Esquivias II, supra, 20 Cal.5th at p. 756 (dis. opn. of Evans, J.).) We do not find that procedural distinction 14  On appeal, the defendant took an all-or-nothing approach to the resentencing issue. (Esquivias II, supra, 20 Cal.5th at pp. 738–740.) While recognizing trial courts are not required to grant sentencing relief in response to every petition for habeas corpus, the defendant argued that if the trial court does grant sentencing relief as to any part of a sentence, that renders the entire judgment nonfinal, and the court must revisit every aspect of the sentence in light of the current sentencing laws. (Ibid.; see generally In re Estrada (1965) 63 Cal.2d 740 [ameliorative legislation is generally presumed to apply to cases that are not final].) As in Esquivias I, however, that argument did not prevail in Esquivias II. Emphasizing the discretionary nature of habeas proceedings, the Supreme Court explained “‘habeas corpus is, at its core, an equitable remedy.’ [Citation.] Under well-established habeas corpus principles, ‘[a] court considering a petition for writ of habeas corpus has broad authority to craft a remedy “as the justice of the case may require.”’ [Citation.] ‘“[I]t is well settled that the writ of habeas corpus does not afford an all-inclusive remedy available at all times as a matter of right.”’ [Citations.] It may well be that the equities of a particular case require the habeas corpus court to vacate a petitioner’s entire sentence and conduct a full resentencing, applying all relevant ameliorative laws, but that will not always be the case. Rather, a court’s determination of the most appropriate equitable remedy in a habeas corpus matter is a case- and fact-specific inquiry.” (Esquivias II, supra, 20 Cal.5th at pp. 742–743.) The Esquivias II court discussed a number of reasons why the equities in that case did not require full resentencing. To begin with, the meaningful in terms of deciding Horner’s appeal, and neither party has suggested that it is. 15 defendant could have sought application of the new sentencing law in the normal course of his appeal. Instead, he did not bring his habeas claim until four years later, which put him in the position to seek retroactive application of additional ameliorative statutes that were enacted after his judgment became final. (Esquivias II, supra, 20 Cal.5th at p. 752.) The Supreme Court found this “unusual” scenario—in which the defendant stood to obtain a windfall by delaying his claim for relief—supported the trial court’s decision to deny the defendant full resentencing. (Id. at pp. 751–752.) The Supreme Court also found it significant that defendant’s original sentence was legally valid and the relief he sought on habeas regarding his firearm enhancements was entirely discretionary; therefore, the habeas court could have declined to exercise its discretion and left the defendant’s sentence undisturbed. (Esquivias II, supra, 20 Cal.5th at p. 746.) The court distinguished that situation from one in which the defendant’s entire sentence was vacated on habeas review because it was constitutionally unauthorized. (Id. at pp. 745–746, citing People v. Padilla (2022) 13 Cal.5th 152, 159, 164, 168 [full resentencing required where habeas court vacated the defendant’s sentence on Eight Amendment grounds].) Equally important, the Supreme Court noted there was no statutory basis for full resentencing in Esquivias II. Although some statutes require the trial court to conduct a new sentencing hearing following a modification of the defendant’s sentence (e.g., § 1172.75), the defendant in Esquivias II had no right to resentencing on statutory grounds. (Esquivias II, supra, 20 Cal.5th at pp. 753–754.) “Since a full resentencing was neither constitutionally nor statutorily compelled to remedy [the defendant’s] specific claim for discretionary, retroactive sentencing relief,” the Supreme Court held “the 16 habeas corpus court had broad equitable authority to conclude that ‘the justice of the case’ only required striking [the defendant’s] firearm enhancements.” (Esquivias II, supra, 20 Cal.5th at p. 738.) The trial court was not required to conduct a full resentencing simply because it granted the 3 defendant habeas relief as to part of his sentence. (Ibid.) We reach the same conclusion here. Horner attempts to distinguish Esquivias II on the grounds that his habeas claim was based on constitutional grounds and he pursued it in a diligent manner. However, despite the constitutional basis for and timely nature of Horner’s habeas petition, it targeted only a portion of his sentence. And the 10-year reduction it led to on count 4 did not impact any other aspect of his sentence. Indeed, count 4 involved an incident that was separate and distinct from the other counts in terms of the victim and when and where it occurred. This is not a case where the various components of the defendant’s sentence were so intertwined and interdependent that a modification of one count necessitated a reevaluation of all other counts. (See People v. Walker (2021) 67 Cal.App.5th 198, 206 [ordering a full resentencing hearing on the basis “a criminal sentence is, like an atom, indivisible” such that “[t]he invalidity of one component infects the entire scheme”].) To the contrary, each of the four lewd act counts carried a mandatory indeterminate sentence that Judge Paer was powerless to modify; the most he could do was to order the mandatory sentences on the counts to run concurrently with each other (which, as to one of the counts, he did at the time of the original 3 Two Justices disagreed with this conclusion. The dissent, authored by Justice Evans and joined by Justice Liu, advocated for a rule requiring full resentencing whenever a habeas court strikes part of a defendant’s sentence. (Esquivias II, supra, 20 Cal.5th at pp. 756–773 (dis. opn. of Evans, J.).) 17 sentencing). So, even though Horner obtained a partial reduction of his sentence on due process grounds, the constitutional nature of his claim did not necessitate full resentencing. (Compare People v. Padilla, supra, 13 Cal.5th at pp. 159, 164, 168 [full resentencing required where habeas court vacated the defendant’s entire sentence for constitutional reasons].) It is also apparent that full resentencing was not required by statute. Horner has not identified a statutory basis for full resentencing, and we are not aware of any. Because full resentencing was neither statutorily nor constitutionally required to remedy the sentencing error raised in Horner’s habeas petition as to count 4, Judge Paer did not abuse his 4 discretion in denying Horner’s request for full resentencing. II. ANY ERROR IN FAILING TO CONDUCT A FULL RESENTENCING HEARING WAS HARMLESS Even if we were to assume Judge Paer abused his discretion by failing to conduct full resentencing following the habeas grant, reversal is not required because it is not reasonably probable Horner would have received a more favorable sentence had full resentencing occurred. (See People v. Scott (1994) 9 Cal.4th 331, 355 [reasonable probability standard of harmless error applies when the trial court’s sentencing error involves an abuse of discretion]; People v. Knowles (2024) 105 Cal.App.5th 757,764–765 [same].) 4 In light of this conclusion, we reject Horner’s claim the habeas grant rendered his entire judgment nonfinal. Because the habeas grant affected only count 4, the remaining counts remained final throughout the proceedings and there was no need for Judge Paer to resentence Horner on those counts. 18  We know that because, even though Judge Paer denied Horner’s request for full resentencing, he did entertain defense counsel’s argument for a greater reduction of Horner’s sentence than what was required by the grant of the habeas petition. Specifically, whereas the habeas grant only required a 10-year sentence reduction on count 4, Judge Paer heard extensive argument on whether he should also order that count to run concurrently to Horner’s 15 year to life sentence on count 1 (rather than consecutively), which would have reduced Horner’s aggregate sentence by another 15 years, to 30 years to life in prison. In doing so, Judge Paer made clear that despite the fact Horner suffered sexual abuse as a child, and despite the Legislature’s recognition of child sexual abuse as a mitigating sentencing factor, Horner did not deserve a concurrent sentence on count 4, given the factual circumstances surrounding his offenses. In light of those circumstances, Judge Paer concluded Horner posed too great a danger to public safety to justify a further reduction in his sentence. Horner argues that conclusion is unsound because Judge Paer failed to consider that his crimes against Harry in counts 1 and 2 “appear to have been the result of a single incident.” Horner is correct that Judge Paer did not expressly address that issue at the resentencing hearing. But he did specifically address the issue at Horner’s original sentencing hearing. At that time, Judge Paer expressly rejected defense counsel’s claim that Horner victimized Harry during a continuous course of conduct, so as to warrant concurrent sentences on counts 1 and 2. Consistent with the evidence adduced at trial, Judge Paer instead found that Horner’s crimes against Harry were sufficiently separated in time to allow Horner ample opportunity to reflect on what he was doing each time he molested his young victim. 19  In sum, we conclude there was no reasonable probability Horner would have obtained a more favorable sentence had Judge Paer conducted a full sentencing hearing following the habeas grant on count 4. The only way Judge Paer could have further reduced Horton’s sentence on a full resentencing would have been to change the consecutive sentence on count 2 to a concurrent sentence. But Judge Paer determined that the egregious circumstances of Horner’s crimes against Harry and Vincent outweighed any mitigating factors (such as Horner’s age or status as a childhood sexual assault victim) and found that Horner remained “dangerous to society in reference to young boys.” Given Judge Paer’s conclusion that these findings made it inappropriate to change the consecutive sentence on count 4 to a concurrent one, there is no reasonable probability he would have found the same facts and factors would warrant leniency in the form of a concurrent sentence on count 2. Accordingly, even if it was error for Judge Paer not to conduct a full resentencing hearing on all counts, any such error was patently harmless. III. CREDITS The final issues concern Horner’s custody credits and the accuracy of the amended abstract of judgment that was prepared after he was resentenced by Judge Paer. Regarding custody credits, the law is clear that when an imprisoned defendant is resentenced following a change to his judgment, “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 20 omitted.) In this case, though, Judge Paer delegated that duty to the Department of Corrections and Rehabilitation. As the Attorney General concedes, that was improper. (§ 2900.5, subd. (d); People v. Vargas (1988) 204 Cal.App.3d 1455, 1469, fn. 9.) We therefore remand with directions on that issue. As for the amended abstract of judgment, Horner claims it is incorrect because, instead of showing the date he was resentenced by Judge Paer in 2025, it shows the date he was originally sentenced in 2014. In fact, both dates are accurately reflected in the document. The original sentencing date is shown in the caption section, as well as in section 15, which reflects the credits Horner received at his original sentencing hearing. And section 14 correctly reflects the date on which Horner was resentenced by Judge Paer. Therefore, other than to update Horner’s custody credits, there is no need to amend the abstract. 21  DISPOSITION The judgment is affirmed and the matter is remanded to the trial court with directions to calculate Horner’s custody credits and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. GOODING, ACTING P. J. WE CONCUR: SCOTT, J. SERVINO, J. 22