People v. Simmons CA2/6

Filed 5/9/16 P. v. Simmons CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B265082
(Super. Ct. No. 2011006399)
Plaintiff and Respondent, (Ventura County)
v.
ARTHUR SIMMONS,
Defendant and Appellant.
Arthur Simmons purports to appeal the April 27, 2015 order denying his
second motion to have his excess custody credits applied against his one-year term of
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misdemeanor parole. (Pen. Code, § 1170.18, subd. (d) ) The motion was made at a
parole violation hearing that resulted in an order continuing appellant on parole. The first
motion was made when the trial court resentenced him under Proposition 47 on January
26, 2015. Appellant did not timely appeal from the resentencing order, and his second
motion to have his custody credits applied against his term of parole did not extend the
time to appeal that order. Accordingly, we dismiss the appeal for lack of jurisdiction.
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All undesignated statutory references are to the Penal Code .
FACTS AND PROCEDURAL HISTORY
On January 18, 2012, appellant pled guilty to receiving stolen property.
(§ 496, subd. (a)) and admitted prior strike and prison term allegations (§§ 665, subd. (b),
667, subds. (c) & (e)(1), 1170.12, subds. (a) & (c)(1).) On April 26, he pled guilty to
possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The court
sentenced him to four years in state prison. Appellant was subsequently convicted of
petty theft with prior convictions (§ 666) and was sentenced to a consecutive term of
eight months in state prison.
On January 8, 2015, appellant petitioned for recall of his sentence in all
three cases pursuant to section 1170.18. On January 26, 2015, the trial court granted the
petition, reduced all three of appellant's felonies to misdemeanors, and sentenced him to
one year in county jail with credit for time served. The court also placed appellant on
one- year misdemeanor parole pursuant to subdivision (d) of section 1170.18. In doing
so, the court denied appellant's motion to have his excess custody applied against his term
of parole, as provided in In re Sosa (1980) 102 Cal. App. 3d 1002. Appellant did not file a
timely notice of appeal from that order.
On April 8, 2015, appellant was arrested on a parole warrant. At the parole
hearing on April 27, 2015, appellant once again moved to have his Sosa credits applied
against his term of parole. The court denied the motion, discharged appellant on the
warrant, and ordered him to report to his parole officer with 24 hours of his release. On
June 26, 2015, appellant filed a notice of appeal. The notice refers to both the
resentencing order entered on January 26, 2015, and the April 27, 2015, order "den[ying]
a defense motion for allocation of presentence (Sosa) credits."
DISCUSSION
Appellant contends the trial court erred in denying his motion to have his
Sosa credits applied against his one-year term of misdemeanor parole. The People
respond that appellant's appeal is untimely because he did not timely appeal from the
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January 26, 2015, order denying his first motion, and that his second motion for such
credits at a subsequent parole hearing did not extend the time to appeal. We agree with
the People.
The January 26, 2015, order placing appellant on one-year misdemeanor
parole and denying his request for Sosa credits was a final, appealable order. (See
People v. Rivera (2015) 233 Cal. App. 4th 1085, 1089.) Appellant thus had 60 days to file
a notice of appeal from that order. (Cal. Rules of Court, rule 8.308.) He did not file his
notice of appeal, however, until June 26, 2015. The appeal is thus untimely.
In his reply brief, appellant asserts that the April 27, 2015 order denying his
second motion for Sosa credits is a separately appealable order from which he timely
appealed. We are not persuaded. Although he labels that order as "a final order in post-
warrant parole hearing," he merely challenges that order to the extent it denied his motion
for reconsideration of his earlier claim that he was entitled to have his Sosa credits to be
applied against his term of parole. As the People correctly note, a motion to reconsider a
prior final order does not extend the time to appeal the prior order. (See People v.
DeLouize (2004) 32 Cal. 4th 1223, 1232 ["Orders and judgments are deemed final in the
superior court, and not subject to reconsideration by that court, to preserve confidence in
the integrity of judicial procedures and to avoid the delays and inefficiencies associated
with repeated examination and relitigation of the same facts and issues"]; see also People
v. Ross (1962) 206 Cal. App. 2d 542, 543 [order denying motion to reconsider prior order
denying probation not appealable].) Because appellant's appeal could only be considered
timely to the extent it challenges the order denying his motion for reconsideration of the
prior order denying Sosa credits, the appeal is untimely and we lack jurisdiction to
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consider it.
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Even if the appeal were timely, we would affirm. The issue is whether Sosa
credits apply against a one-year term of misdemeanor parole ordered under subdivision
(d) of section 1170.18 and the issue is currently before our Supreme Court in People v.
Morales, review granted August 26, 2015, No. S228030. The court has also granted
review in two previously .published cases decided by this court that involve the same
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We dismiss the appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
issue: People v. McCoy, review granted October 14, 2015, No. S229296; and People v.
Hickman, review granted August 26, 2015, No. S227964. Unless and until the court rules
otherwise, we will continue to conclude that Sosa credits do not apply in this context.
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Donald D. Coleman, Judge
Superior Court County of Ventura
______________________________
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez
and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
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