People v. Racimo CA3

Filed 12/22/21 P. v. Racimo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C092919

Plaintiff and Respondent, (Super. Ct. No. CR20026371)

v.

CALIXTO CADA RACIMO,

Defendant and Appellant.

Petitioner Calixto Cada Racimo successfully petitioned for resentencing under Penal Code1 section 1170.95 and was sentenced to time served. On appeal, he contends his excess custody credits should offset his parole term and fines. We requested supplemental briefing from the parties regarding whether section 3000.01 decreased petitioner’s parole term to two years in the event petitioner’s custody credits could not

1 Further section references are to the Penal Code unless otherwise indicated.

1

offset the imposed parole term. Petitioner then requested judicial notice be taken of the Department of Corrections and Rehabilitation’s records providing he had been discharged from parole.2 Given that petitioner has been discharged from parole, we conclude the issue of whether the trial court erred by imposing a three-year parole term is moot, as is the issue of whether section 3000.01 applies to petitioner’s case. We agree with the parties, however, that petitioner’s custody credits should offset his imposed fines. FACTUAL AND PROCEDURAL BACKGROUND Petitioner served approximately 18 years in prison before the court resentenced him under section 1170.95 to nine years. The court further imposed a $200 restitution fine and a $200 parole revocation fine. Finding that petitioner had served his entire sentence, the court sentenced petitioner to time served and placed him on three years of parole. Petitioner appealed on November 23, 2020. He was discharged from parole on November 1, 2021. DISCUSSION Petitioner contends his excess custody credits eliminated the trial court’s authority to impose a term of parole. He acknowledges other appellate courts have concluded a trial court may impose parole after resentencing a petitioner under section 1170.95 to time served, even if that petitioner has sufficient excess custody credits to offset the imposed parole term. (See People v. Wilson (2020) 53 Cal.App.5th 42, 46; see also People v. Lamoureux (2020) 57 Cal.App.5th 136, 145 [agreeing with and adopting the Wilson court’s reasoning].) He contends those cases were wrongly decided.