People v. Simmons CA3

Filed 7/14/16 P. v. Simmons CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

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