People v. Simmons CA3 ( 2016 )

Filed 7/14/16 P. v. Simmons 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE, C079223
Plaintiff and Respondent, (Super. Ct. No. 12F07148 )
v.
JOSHUA LEE SIMMONS,
Defendant and Appellant.
Defendant Joshua Lee Simmons pleaded guilty to possession of a sharp instrument
in a penal institution and admitted a prior strike conviction. The trial court sentenced
defendant to serve two years in state prison but found his preimprisonment credit equaled
or exceeded his sentence and deemed his sentence served. The court nevertheless
remanded defendant to the Department of Corrections and Rehabilitation (CDCR),
over defendant’s objection, to be processed on parole. It was the trial court’s
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“understanding” CDCR “ha[d] a parole hold on [defendant] until they process [him]
out . . . .”
On appeal, defendant contends the trial court erred in sending him back to the
CDCR. He asks us to reverse his sentence and remand the matter with direction to the
trial court to “correctly apply a time served sentence, recalculate his custody credits to
account for additional time at CDCR, and apply his credits as appropriate.” The People
agree the matter should be remanded.
We conclude whether the trial court erred depends on whether the CDCR had
defendant on a parole hold at the time of sentencing. Because it is unclear from the
record whether defendant was on a parole hold issued by the CDCR at the time of
sentencing, we remand the matter to the trial court to find either (1) defendant was
subject to a parole hold issued by the CDCR at the time of sentencing and properly
remanded to the CDCR for processing on parole or (2) defendant was not subject to a
CDCR parole hold at the time of sentencing and should have been released to report to
the parole office closest to his last legal residence. If there was no parole hold at the time
of sentencing, then the trial court is directed to recalculate defendant’s custody credits to
account for any additional time at the CDCR. We also order corrections to the abstract of
judgment.
DISCUSSION
I
The Matter Should be Remanded to Determine Whether Resentencing Is Required
In support of his claim on appeal, defendant relies on Penal Code former section
1170, subdivision (a)(3),1 which provides in relevant part: “In any case in which the
1 Undesignated statutory references are to the Penal Code.
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amount of preimprisonment credit under Section 2900.5 or any other provision of law is
equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence
shall be deemed to have been served and the defendant shall not be actually delivered to
the custody of the secretary. The court shall advise the defendant that he or she shall
serve a period of parole and order the defendant to report to the parole office closest to
the defendant’s last legal residence, unless the in-custody credits equal the total sentence,
including both confinement time and the period of parole.”
The People agree defendant is subject to the determinate sentencing law provision
of section 1170, relied on by defendant. The People also agree that, pursuant to section
1170, subdivision (a)(3), defendant should have been released by the trial court and
ordered to report to the parole office closest to his last legal residence, if defendant were
not on a parole hold issued by the CDCR.
The People nevertheless argue that at the time of sentencing, defendant may
have been subject to a parole hold issued by the CDCR. If that were true, they argue,
the CDCR had the authority to impose additional or other appropriate conditions of
supervision upon defendant based on his current conviction for possession of a sharp
instrument in prison. (§ 3000.08, subd. (d).) Under such circumstances, the trial
court would be correct in sending defendant to the CDCR to be processed back into
parole.
Thus, the People contend, whether the trial court erred depends upon whether the
CDCR had defendant on a parole hold at the time of sentencing and the matter should be
remanded to allow the trial court to determine whether resentencing is appropriate. We
agree with the People. Accordingly, we remand the matter and direct the trial court to
find either that defendant was subject to a parole hold issued by the CDCR at the time of
sentencing and properly sentenced, or if defendant was not subject to a parole hold issued
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by the CDCR, recalculate defendant’s custody credits to account for any additional time
at the CDCR and apply those credits to defendant’s sentence, including his period of
parole.
II
Clerical Errors in the Abstract of Judgment
The People also note two clerical errors in the abstract of judgment. First, the
“year crime committed” on the abstract indicates defendant’s crime was committed in
2014. In fact, defendant’s offense for possession of a weapon by a prisoner occurred on
October 26, 2011. Second, the “date of conviction” on the abstract of judgment should
be corrected to reflect the date on which defendant entered into his plea agreement and
was sentenced: March 27, 2015.
Because these are simply clerical errors, we correct them on appeal and direct
the trial court to prepare a corrected abstract of judgment. (People v. Mitchell (2001)
26 Cal. 4th 181, 185 [“Courts may correct clerical errors at any time, and appellate
courts . . . that have properly assumed jurisdiction of cases have ordered correction of
abstracts of judgment that did not accurately reflect the oral judgments of sentencing
courts”].)
DISPOSITION
The sentence is reversed and the matter remanded for further proceedings to
determine whether defendant was on a parole hold issued by the Department of
Corrections and Rehabilitation at the time of sentencing and whether resentencing is
required consistent with this opinion. The trial court is further directed to correct the
abstract of judgment consistent with this opinion and forward a certified copy of
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the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
MURRAY, J.
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