People v. Smith CA2/6

Filed 10/8/15 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B258127 (Super. Ct. No. CR48902) Plaintiff and Respondent, (Ventura County)

v.

JONATHAN LEE SMITH,

Defendant and Appellant.

Jonathan Lee Smith appeals the trial court's order vacating its prior order applying excess custody credits against a three-year period of Post-Release Community Supervision (PRCS) (Pen. Code,1 § 3451, subd. (a)). PRCS was imposed when appellant was resentenced on a third-strike sentence of 29 years to life under the Criminal Justice Realignment Act of 2011(the Act) (§ 1170.126). The court imposed a 14-year sentence, released appellant from prison with credit for time served, and placed him on PRCS for a period of three years as provided in section 3451, subdivision (a) of the Act. The court subsequently granted appellant's motion to amend the judgment by applying 741 days of excess custody credit against his three

1 All further statutory references are to the Penal Code.

years of PRCS. The court concluded that appellant was entitled to the credits under In re Sosa (1980) 102 Cal.App.3d 1002 (Sosa). After we concluded in a published opinion that Sosa credits do not apply to PRCS imposed under the Act (People v. Espinoza (2014) 226 Cal.App.4th 635 (Espinoza)), the People moved the trial court to vacate its order amending the abstract of judgment to award such credits. The court granted the motion and issued a new order placing appellant on PRCS for three years, effective as of the date of its original resentencing order. Appellant contends that Espinoza was wrongly decided. He also claims that the court's reconsideration of its prior order was barred by res judicata and lack of jurisdiction, and that its reliance on Espinoza was premature. None of these claims is persuasive. "Where the presentence credits exceed the total state prison term, the excess credits, commonly known as Sosa credits, are deducted from the defendant's parole period. [Citation.]" (Espinoza, supra, 226 Cal.App.4th at p. 638.) Sosa credits are awarded pursuant to subdivision (c) of section 2900.5, which "states that a 'term of imprisonment' includes 'any period of imprisonment imposed as a condition of probation or otherwise ordered . . . , 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 . . . .'" (Ibid.) In Espinoza, we concluded that PRCS does not constitute a "term of imprisonment and parole" as contemplated in subdivision (c) of section 2900.5. We reasoned that PRCS is not analogous to parole and applies "[n]otwithstanding any other law" as provided in section 3451, subdivision (a). (Espinoza, supra, 226 Cal.App.4th at p. 639.) We further explained, "[t]here is nothing absurd about requiring appellant to participate in PRCS. Appellant's prison credits are large but his situation is not sui generis. The Legislature is presumed to have known that a person