People v. Grigsby CA4/3

Filed 5/27/16 P. v. Grigsby CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G051664 Plaintiff and Respondent, (Super. Ct. No. 12WF3473) v. OPINION DONALD RAY GRIGSBY,

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part, and remanded. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Donald Ray Grigsby appeals from the trial court’s Proposition 47 resentencing order. He argues that because he had completed his felony term of imprisonment, the court lacked authority to impose misdemeanor parole upon resentencing, or in the alternative that remand is required because the court failed to ensure the new parole period did not exceed his remaining term of postrelease community service (PRCS). He also contends he was entitled under governing law to apply custody credits for excess time he served under his former felony sentence to reduce his parole period and fines, and that the fines first should have been reduced to the minimum amounts applicable to misdemeanor convictions. We conclude the court correctly imposed parole, but erred: (a) in failing to ensure the parole period did not result in a total term exceeding defendant’s original sentence, and (b) in declining to apply his excess custody credits to reduce his parole and eligible fines. Because we must reverse and remand for resentencing, defendant’s challenge to the restitution and parole revocation fine amounts is moot. I FACTUAL AND PROCEDURAL BACKGROUND In December 2012, defendant pleaded guilty to one count each of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b); all further undesignated statutory references are to this code) and possession of drug paraphernalia (Health & Saf. Code, 11364.1, subd. (a)), and he admitted previous theft convictions. The factual basis for defendant’s plea included his statement that on December 17, 2012, he willfully and unlawfully entered a Walmart store with the intent to steal and that he possessed three syringes. After dismissing the priors (§ 1385) and a theft count, the trial court sentenced defendant to the low term of 16 months on the burglary count, suspended imposition of sentence on the drug count, and imposed a $240 restitution fine (§ 1202.4)