By Josué Monroy
SACRAMENTO – A man sentenced to state prison last August has not yet been transferred out from Sacramento County jail to prison because of the COVID-19 pandemic, leaving him in limbo for months without receiving any in-custody time credit.
Lathaniel Burries came before Judge Michael A. Savage in Sacramento County Superior Court last week asking to be resentenced at a later date, a move that would change his incarcerated status back to that of an unsentenced person, and make him eligible for time credit accrual. The motion was filed by his attorney, Russell Miller.
“He’s asked the court to do something a little bit unusual, which is to recall a sentence. Because [Burries] has not been transported, he has not been able to take advantage of custody credits that he would otherwise be accruing,” explained Judge Savage.
Sentencing judges have a 120-day window in which they can recall a defendant’s sentence, according to California Penal Code section 1170.
The judge indicated that he was willing to grant the request due to the fact that other similarly situated inmates have successfully petitioned to delay their sentencing in light of the California Department of Corrections and Rehabilitation (CDCR) halting transportation of prisoners.
The coronavirus has affected the free transfer of prisoners due to recent outbreaks at various state and county facilities attributed to the transportation of COVID-infected individuals. CDCR has 
halted those transfers for the foreseeable future and, in the age of the pandemic, timelines are not certain.
This does not bode well for sentenced inmates like Burries, who have fallen between the cracks due to a technical loophole created by the transportation issue. With no clear timeframe as to when transportation will resume, they are at a disadvantage.
“It seems to me we should not have, at all, any disparate treatment between sentenced prisoners or unsentenced prisoners with regard to good time accrual just due to the arbitrariness of the transportation issue,” noted Judge Savage.
Deputy District Attorney Frances Cobarrubio did not agree with that assessment, and asked for the sentence to be upheld.
“All parties were aware of the pandemic situation and how it impacted the transport of inmates to CDCR,” argued Cobarrubio, referring to Burries’ August sentencing hearing.
At that hearing, he pleaded guilty to the charge of being a felon in possession of a firearm in a deal that dropped the more serious assault charges and gave him six years in prison instead of the original 33.
Cobarrubio insisted that the court honor the original sentence and forego the efforts to seek time accrual for Burries, reiterating that there was full knowledge of the transportation dilemma, and that it should not bear weight in this situation.
Judge Savage did not agree with the assertion that the court was fully aware of the pandemic, saying it is a fluid and unpredictable situation.
“We don’t even know what we’re doing tomorrow. The rules change weekly, if not daily, about how we’re handling this issue,” noted the judge. “Neither of us could have anticipated that on Oct. 16 [CDCR] would still not be transporting prisoners.”
DDA Cobarrubio was not convinced and stuck to her reading of the situation.
“I don’t know what to say about the ‘foreseeable future’; there’s no such thing in California,” responded Judge Savage. “Nothing about this is foreseeable.”
With that stated, the judge made the decision to recall the sentence and set a new, later date for Burries’ resentencing hearing in hopes that transportation would have resumed at that time. In the meantime, he would accrue time credit at the county jail until then.
The sentence would be the same as the original, the only difference being the time credit accrual. Burries will be resentenced on Nov. 13.
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