People v. Duff-Guardado CA1/3

Filed 9/7/21 P. v. Duff-Guardado CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A160850
v. (San Mateo County
DORIAN DREW DEMOURIE Super. Ct. Nos. 18NF002227A,
DUFF-GUARDADO, 18SF013129B)
Defendant and Appellant.
Appellant Dorian Drew Demourie Duff-Guardado contends his excess
presentence custody credits should apply to eliminate the three-year parole
period he is subject to as part of his sentence in Case No. 18NF002227A
(Case 227A).1 He also contends the parole revocation restitution fine imposed
on him in that case should be stricken. We modify the judgment in Case
227A to apply appellant’s excess presentence credits against his parole term
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Appellant concurrently appeals his sentence in Case No. 18SF013129B
(Case 129B). In Case 129B, appellant pleaded no contest to discharging a
firearm with gross negligence (Pen. Code, § 246.3, subd. (a)) and street
terrorism (id. § 186.22, subd. (a)) and admitted a gang enhancement (id. §
12022, subd. (a)). He was sentenced to seven years in state prison and
ordered to pay a parole revocation restitution fine. However, appellant’s
opening brief raises no issues with his Case 129B sentence. Accordingly,
Case 227A is the only proceeding we address in our analysis.
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and to strike the parole revocation restitution fine. As modified, the
judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a negotiated agreement, appellant pleaded no contest to
aiding a felony after the fact (Pen. Code, § 32).2 The trial court sentenced
him to two years (730 days) in state prison and awarded him total
presentence custody credits of 1,825 days. He was subject to a three-year
parole period (1,095 days) pursuant to section 3000, subdivision (b)(2)(B). In
addition, the court imposed and stayed a $300 parole revocation restitution
fine pending successful completion of parole. Appellant appeals his sentence.
DISCUSSION
A. Parole Period
Appellant contends his excess presentence custody credits should be
applied against his three-year parole term. The People agree, as do we.
It is a “long-established rule that, in the ordinary situation of original
sentencing, excess presentence credits can reduce any period of parole.”
(People v. Morales (2016) 63 Cal.4th 399, 405 (Morales); see In re Sosa (1980)
102 Cal.App.3d 1002, 1005 (Sosa).)
Section 1170, subdivision (a)(3), states in relevant part: “In any case in
which the amount of preimprisonment credit under Section 2900.5 or any
other law is equal to or exceeds any sentence imposed pursuant to this
chapter, . . . the entire sentence shall be deemed to have been served, except
for the remaining period of mandatory supervision, and the defendant shall
not be actually delivered to the custody of the secretary or to the custody of
the county correctional administrator. The court shall advise the defendant
that they shall serve an applicable period of parole, postrelease community
2
All further statutory references are to the Penal Code.
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supervision, or mandatory supervision, and order the defendant to report to
the parole or probation 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, postrelease community
supervision, or mandatory supervision. (§ 1170, subd. (a)(3), italics added.)
Section 2900.5, subdivision (a) adds in relevant part: “If the total
number of days in custody exceeds the number of days of the term of
imprisonment to be imposed, the entire term of imprisonment shall be
deemed to have been served.” (§ 2900.5, subd. (a).) “ ‘[T]erm of
imprisonment’ ” includes any period of imprisonment imposed as a condition
of probation or otherwise ordered by a court in imposing or suspending the
imposition of any sentence, and also includes any term of imprisonment,
including any period of imprisonment prior to release on parole and any
period of imprisonment and parole, prior to discharge, whether established or
fixed by statute, by any court, or by any duly authorized administrative
agency.” (§ 2900.5, subd. (c), italics added.)
As the Supreme Court summarized in Morales, “section 2900.5 states
two things relevant here: (1) the person is entitled to credit for time served,
and (2) the credit can reduce or eliminate the period of parole.” (Morales,
supra, 63 Cal.4th at p. 406.)
Here, as discussed, appellant was sentenced to two years in state
prison (730 days) and subject to a three-year parole term (1,095 days). There
is no disagreement that appellant’s 1,825 days of presentence custody credits
applied against his two-year prison sentence (§ 1170, subd, (a)(3); Sosa,
supra, 102 Cal.App.3d at pp. 1005–1006), resulting in 1,095 days of excess
presentence credits. Under the authorities referenced above, these 1,095
days of excess presentence credits further apply against the parole portion of
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appellant’s sentence. (§§ 1170, subd. (a)(3), 2900.5; Sosa, supra, 102
Cal.App.3d at p. 1005 [presentence credit applies against parole portion of
sentence].) Accordingly, appellant’s 1,095 days of excess presentence credits
apply to eliminate his 1,095-day parole term, and he is no longer subject to
parole in this case.
B. Parole Revocation Restitution Fine
Appellant also contends the $300 parole revocation restitution fine
imposed on him pursuant to section 1202.45 should be stricken. Again, the
People agree, as do we. Under section 1202.45, in “every case where a person
is convicted of a crime and his or her sentence includes a period of parole,” a
court must “assess an additional parole revocation restitution fine” when a
restitution fine pursuant to section 1202.4, subdivision (b) is imposed. (§
1202.45, subd. (a).) Given appellant’s three-year parole period is eliminated
and his sentence no longer includes a period of parole, the parole revocation
restitution fine is stricken. (See People v. Hannah (1999) 73 Cal.App.4th 270,
274–275 [concluding it would be inappropriate to impose a section 1202.45
fine when sentence does not include period of parole].)
DISPOSITION
In Case 227A, appellant’s excess presentence credits are to be applied
against his parole term, and the $300 parole revocation fine under section
1202.45 is stricken. As so modified, the judgment is affirmed. The clerk of
the superior court is directed to modify the abstract of judgment to reflect
this modification and to forward a copy of the new amended abstract to the
Department of Corrections and Rehabilitation. In Case 129B, the judgment
is also affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A160850/People v. Duff-Guardado
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