People v. Racimo CA3 ( 2021 )

Filed 12/22/21 P. v. Racimo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C092919
Plaintiff and Respondent, (Super. Ct. No. CR20026371)
v.
CALIXTO CADA RACIMO,
Defendant and Appellant.
Petitioner Calixto Cada Racimo successfully petitioned for resentencing under
Penal Code1 section 1170.95 and was sentenced to time served. On appeal, he contends
his excess custody credits should offset his parole term and fines. We requested
supplemental briefing from the parties regarding whether section 3000.01 decreased
petitioner’s parole term to two years in the event petitioner’s custody credits could not
1 Further section references are to the Penal Code unless otherwise indicated.
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offset the imposed parole term. Petitioner then requested judicial notice be taken of the
Department of Corrections and Rehabilitation’s records providing he had been discharged
from parole.2
Given that petitioner has been discharged from parole, we conclude the issue of
whether the trial court erred by imposing a three-year parole term is moot, as is the issue
of whether section 3000.01 applies to petitioner’s case. We agree with the parties,
however, that petitioner’s custody credits should offset his imposed fines.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner served approximately 18 years in prison before the court resentenced
him under section 1170.95 to nine years. The court further imposed a $200 restitution
fine and a $200 parole revocation fine. Finding that petitioner had served his entire
sentence, the court sentenced petitioner to time served and placed him on three years of
parole.
Petitioner appealed on November 23, 2020. He was discharged from parole on
November 1, 2021.
DISCUSSION
Petitioner contends his excess custody credits eliminated the trial court’s authority
to impose a term of parole. He acknowledges other appellate courts have concluded a
trial court may impose parole after resentencing a petitioner under section 1170.95 to
time served, even if that petitioner has sufficient excess custody credits to offset the
imposed parole term. (See People v. Wilson (2020) 53 Cal.App.5th 42, 46; see also
People v. Lamoureux (2020) 57 Cal.App.5th 136, 145 [agreeing with and adopting the
Wilson court’s reasoning].) He contends those cases were wrongly decided.
2 Petitioner’s request for judicial notice is granted.
2
After filing his opening brief, petitioner was discharged from parole, rendering
this issue moot. “ ‘[A] case becomes moot when a court ruling can have no practical
effect or cannot provide the parties with effective relief.’ ” (People v. Rish (2008) 163
Cal.App.4th 1370, 1380.) In light of petitioner’s discharge from parole, any
determination regarding the trial court’s authority to impose parole would have no
practical effect and would not provide any effective relief. (See People v. Lamoureux,
supra, 57 Cal.App.5th at p. 154, fn. 9 [declining to decide the petitioner’s claim regarding
erroneous calculation of presentence conduct credits].) Because the issue has become
moot, we need not consider it. (Rish, at p. 1380 [“It is not the function of the appellate
court to render opinions ‘ “ ‘ “upon moot questions or abstract propositions, or . . .
declare principles or rules of law which cannot affect the matter in issue in the case
before it.” ’ ” ’ ”].)
We, however, agree with the parties that petitioner’s excess custody credits must
offset the imposed restitution fine and parole revocation fine. (§ 2900.5, subd. (a);
People v. Morris (2015) 242 Cal.App.4th 94, 101-103 [defendant’s restitution fine
deemed satisfied by the application of his excess custody credits under the version of
section 2900.5 in effect at the time of his offense]; People v. Lamoureux, supra, 57
Cal.App.5th at p. 152 [same].) At the time of petitioner’s offense in 2002, former
section 2900.5, subdivision (a) provided that custody credits may be “credited to any fine
on a proportional basis, including, but not limited to, base fines and restitution fines,
which may be imposed, at the rate of not less than thirty dollars ($30) per day . . . .”
(Stats. 1996, ch. 1077, § 28, operative Jan. 1, 1999 (Assem. Bill No. 2898); Stats. 1998,
ch. 338, § 6, eff. Aug. 21, 1998, operative Jan. 1, 1999 (Sen. Bill No. 295); see also Stats.
1991, ch. 437, § 10, eff. Sept. 18, 1991, operative Jan. 1, 1995 (Assem. Bill No. 688)
[applying rate of $30 per day of credit to “any fine which may be imposed”].) At $30 per
day, petitioner’s excess custody credit more than offsets the imposed fines. Thus, the
fines must be deemed satisfied in full.
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DISPOSITION
The judgment is modified to reflect petitioner’s restitution and parole revocation
fines are deemed satisfied in full by application of his excess custody credits.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
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