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Filed 9/7/21 P. v. Duff-Guardado CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

1 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