Filed 10/30/14 (unmodified opn. attached)




                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                    F067312
        Plaintiff and Appellant,
                                                         (Super. Ct. No. CF97581807)
                 v.

ABRAHAM ISAAC TUBBS,                                  ORDER MODIFYING OPINION
                                                        [NO CHANGE IN JUDGMENT]
        Defendant and Respondent.


THE COURT:
        It is ordered that the opinion filed herein on October 10, 2014, be modified in the
following particulars:
        1. On page 2, first sentence of the first paragraph delete the words “(the Act)” so
that the sentence reads:

        Respondent Abraham Isaac Tubbs petitioned for resentencing pursuant to Penal
        Code section 1170.126,1 commonly referred to as the Three Strikes Reform Act of
        2012.2
        2. On page 2, second sentence of the first paragraph insert the words “of the
Postrelease Community Supervision Act of 2011 (the Act)” following “3451” so that the
sentence reads:

        The trial court resentenced Tubbs on March 8, 2013, and ordered that Tubbs be
        subject to postrelease community supervision (PRCS) pursuant to section 3451 of
        the Postrelease Community Supervision Act of 2011 (the Act) for the period
        prescribed by law.
       3. On page 3, first sentence of the first paragraph delete the words “the Act” and
insert “section 1170.126” so that the sentence reads:

       Tubbs petitioned for resentencing pursuant to section 1170.126 and a hearing on
       his petition was held on March 8, 2013.
       4. On page 3, second sentence of the third paragraph delete the words “pursuant
to the Act” so that the sentence reads:
       The trial court recalled the sentence and proceeded to resentence Tubbs.
       5. On page 4, second sentence of the first paragraph under the heading
DISCUSSION delete the word “they” and insert “the People” and delete the words “under the

Act” so that the sentence reads:

       First, as PRCS is mandated by section 3451, the People contend the trial court
       erred in applying excess time credits resulting from resentencing to the PRCS
       term.
       6. On page 5, second sentence of the first full paragraph delete the words “under
the Act” so that the sentence reads:
       The total sentence imposed at resentencing was 13 years.
       7. On page 5, second sentence of the fourth full paragraph delete the words “the
Act” and insert “section 1170.126” so that the sentence reads:

       Participation in PRCS is mandatory for anyone resentenced under section
       1170.126 and released from custody.
       8. On page 9, first sentence of the first paragraph under the subheading
Conclusion insert the words “and section 1170.126” following the word “Act,” so that
the sentence reads:

       Tubbs availed himself of the postconviction release remedy provided by the Act
       and section 1170.126.
       9. On page 10, first sentence of the second paragraph under the heading
II. Requirement of Notice and a Hearing delete the words “The Act” and insert
“Section 1170.126” so that the sentence reads:

                                            2.
      Section 1170.126 expressly contemplates that a hearing be held when the trial
      court is considering any resentencing order.
      10. The paragraph commencing on page 11 under heading DISPOSITION and
ending on page 12 is deleted and the following paragraph is inserted:

      The March 19, 2013, order vacating the sentence of postrelease community
      supervision is reversed. An amended abstract of judgment reflecting the oral
      pronouncement of sentence on March 8, 2013, shall be prepared, and the trial
      court shall forward a copy of said document to the appropriate agencies.4
      These modifications do not effect a change in the judgment.


                                                               _____________________
                                                                 CORNELL, Acting P.J.

WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.




                                            3.
Filed 10/10/14 (unmodified version)




                        CERTIFIED FOR PARTIAL PUBLICATION*


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F067312
        Plaintiff and Appellant,
                                                         (Super. Ct. No. CF97581807)
                 v.

ABRAHAM ISAAC TUBBS,                                             OPINION
        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez,
Judge. (Retired judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.)
        Elizabeth A. Egan, District Attorney, Rudy Carrillo, Chief Deputy District
Attorney, and Douglas O. Treisman, Deputy District Attorney, for Plaintiff and
Appellant.




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.
       Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Respondent.
                                           -ooOoo-
       Respondent Abraham Isaac Tubbs petitioned for resentencing pursuant to Penal
Code section 1170.126,1 commonly referred to as the Three Strikes Reform Act of 2012
(the Act).2 (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285,
1289 (Kaulick).) The trial court resentenced Tubbs on March 8, 2013, and ordered that
Tubbs be subject to postrelease community supervision (PRCS) pursuant to section 3451
for the period prescribed by law. Eleven days later, on March 19, the trial court, on its
own and without notice to the parties, ordered its judgment be modified to omit any
requirement that Tubbs be subject to PRCS. The trial court concluded it had no authority
to order PRCS; thus, an unauthorized sentence had been imposed.
       The People appeal from the March 19, 2013, modification, contending
(1) modification of the March 8, 2013, sentence required notice and a hearing, and
(2) any resentencing of Tubbs pursuant to the Act must include PRCS. We agree with
the People and will reverse the March 19 order.
                         FACTUAL AND PROCEDURAL SUMMARY
       Tubbs pled guilty to possession of cocaine and possession of cocaine for sale on
April 1, 1997. At the time, Tubbs had two strike convictions and had served three prison
terms. Tubbs was sentenced pursuant to the Three Strikes law as a third strike
defendant.3


       1All   further statutory references are to the Penal Code.
       2Proposition   36, as approved by voters, Gen. Elec. (Nov. 6, 2012).
       3Some  facts had to be extrapolated and discerned from the record, such as it is.
The record on appeal did not include the petition for resentencing filed by Tubbs, the
probation report prepared for the resentencing, or the original judgment from 1997.



                                               2.
       Tubbs petitioned for resentencing pursuant to the Act and a hearing on his petition
was held on March 8, 2013. The People argued that Tubbs was an unreasonable risk to
the community if released unless there was a plan in place to address Tubbs’s alcohol and
substance abuse, such as a requirement he attend Alcoholics Anonymous and Narcotics
Anonymous. The People also had a concern that Tubbs minimized his prior offenses and
denied having sold or supplied narcotics to others, despite his prior plea to that offense.
       The People conceded Tubbs was eligible for resentencing, however, and stated
they were not opposing resentencing so long as some sort of “relapse prevention plan”
was in place. The trial court noted it had to determine if Tubbs “pose[d] an unreasonable
risk to public safety.”
       After much discussion and argument from both counsel, the trial court stated it
was “persuaded that resentencing [Tubbs was] the appropriate thing to do.” The trial
court recalled the sentence and proceeded to resentence Tubbs pursuant to the Act. It
imposed a sentence of 13 years and awarded custody credits of 6,024 days. The trial
court noted Tubbs was being resentenced to 13 years and had served 16 years in actual
custody, but concluded that it did not “see any exceptions here” and ordered Tubbs to
participate in PRCS pursuant to section 3451 upon release from custody.
       The abstract of judgment for the resentencing was filed March 14, 2013, and
indicated Tubbs had been resentenced pursuant to section 1170.126. On March 19, 2013,
without notice or a hearing, the trial court modified the judgment by issuing an order
vacating that portion of the judgment requiring Tubbs to participate in PRCS. The stated
reason was that the trial court was correcting an “unauthorized sentence” in that only the
Secretary of the Department of Corrections and Rehabilitation (the Department) could
decide whether a defendant was to be placed on PRCS after release from custody.
       The People appeal from the March 19, 2013, order modifying the judgment. The
People filed a request that we take judicial notice of the legislative analysis of Proposition



                                              3.
36. By order dated July 25, 2013, we deferred ruling on the request pending
consideration of the merits of the appeal.
                                      DISCUSSION
       The People argue the trial court made two errors. First, as PRCS is mandated by
section 3451, they contend the trial court erred in applying excess time credits resulting
from resentencing under the Act to the PRCS term. Hence, the trial court’s March 19,
2013, order striking the requirement for PRCS was error. Tubbs counters that the
Department, not the trial court, is vested with exclusive authority to decide whether a
defendant, upon release from prison, is subject to PRCS.
       Second, the People contend that any resentencing under the Act, and any
modification or alteration of that new sentence, requires notice and a hearing. Tubbs
asserts the trial court’s March 19, 2013, order was correcting an unauthorized sentence
and did not require a hearing.
I.     PRCS Requirement
       In its March 19, 2013, modification of the resentencing order, the trial court stated,
“The decision of whether or not defendant will be subject to parole or postrelease
community supervision is one made by the Secretary of the Department of Corrections
and Rehabilitation[], and is dependent upon whether, once defendant’s post-sentence
credits are calculated by the Department [citation], he has any period of time remaining
for either a parole or postrelease community supervision period.”
       There are two problems with this statement: (1) excess time credits after
resentencing cannot reduce or eliminate the statutory period a defendant is subject to
PRCS, and (2) the Department is not the sole arbiter of eligibility for PRCS.
       Excess Time Credits Do Not Impact PRCS
       When a defendant has served any portion of a sentence based upon a judgment,
and that judgment subsequently is modified or declared invalid and the defendant is then
resentenced for that same offense, custody credits for the time served must be awarded to

                                             4.
the defendant. (§ 2900.1.) It is the trial court that is charged with determining the total
number of days to be credited to a defendant for custody credits and fixing that number
when sentence is imposed. (§ 2900.5, subd. (d).)
       Here, the trial court determined Tubbs had 6,024 days of credit for time served,
which equates to approximately 16.5 years. The total sentence imposed at resentencing
under the Act was 13 years. The trial court’s written order following the March 8, 2013,
resentencing hearing specified that Tubbs was to be released immediately, not remanded
into anyone’s custody, pursuant to resentencing under section 1170.126.
       The Act “has two primary prongs: creating a new sentencing mechanism for
defendants who are sentenced on and after October 1, 2011, and creating a new process
whereby certain offenders being released from prison custody would no longer be
supervised by the state parole system, but instead would be supervised by a local
supervision agency.” The new supervision system is PRCS. (People v. Espinoza (2014)
226 Cal.App.4th 635, 639, fn. 3 (Espinoza), quoting Couzens & Bigelow, Felony
Sentencing After Realignment (rev. Mar. 4, 2014) p. 62; available at
<http://www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Oct. 10,
2014].)
       Section 3451, subdivision (a) of the Act states, “Notwithstanding any other
law …, all persons released from prison on and after October 1, 2011, or whose sentence
has been deemed served pursuant to section 2900.5 after serving a prison term for a
felony shall, upon release from prison and for a period not exceeding three years …, be
subject to [PRCS] .…” (Italics added.)
       The trial court was correct when it initially ordered Tubbs to participate in PRCS.
Participation in PRCS is mandatory for anyone resentenced under the Act and released
from custody. Custody credits cannot reduce the mandatory PRCS supervision period.
(Espinoza, supra, 226 Cal.App.4th at pp. 639-640.) Consequently, any judgment or order



                                             5.
that purports to eliminate or remove PRCS as a condition of resentencing under the Act is
an illegal sentence, not the other way around.
        We are not the first court to confront this issue. The appellate court in Espinoza
thoroughly analyzed the Act and the individual statutes under facts substantially similar
to those of this case. In Espinoza the defendant had been serving a third strike sentence
in prison, had not been paroled, petitioned for resentencing pursuant to the Act, and at
resentencing was awarded custody credits that exceeded the new sentence. (Espinoza,
supra, 226 Cal.App.4th at pp. 637-638.) The defendant was ordered to be released
immediately. (Id. at p. 639.) In addition, at the resentencing hearing, and over the
defendant’s objection, the trial court ordered the defendant to participate in PRCS. (Id. at
p. 638.)
        As the appellate court noted in Espinoza, the Act “changed the paradigm for the
incarceration and postconviction supervision of persons convicted of certain felony
offenses.” (Espinoza, supra, 226 Cal.App.4th at p. 639.) After analyzing the Act and its
various individual statutes, the appellate court concluded that the language
“notwithstanding any other law” was all encompassing and eliminated any potential for
conflict with other sentencing schemes. (Id. at pp. 639-640.) The Espinoza court
concluded there was no constitutional impediment to PRCS, PRCS was mandatory for
those sentenced after October 1, 2011, and PRCS did not constitute a term of
imprisonment or parole. (Id. at pp. 638-641.) Thus, a defendant released after October 1,
2011, pursuant to resentencing under the Act, who had excess custody credits, is subject
to mandatory PRCS. (Id. at p. 640.)
        Tubbs and the defendant in Espinoza both analogized PRCS to parole as a basis
for arguing that excess credits should be applied to reduce PRCS supervision. The
analogy fails because there is no threat of imprisonment for a violation of the terms of
PRCS.



                                              6.
       Tubbs mentions, without analysis, footnote 5 from this court’s opinion in People
v. Torres (2013) 213 Cal.App.4th 1151, 1157 as indicating excess time credits may
reduce the period of supervision under PRCS. But, neither the parties nor this court’s
opinion in Torres addressed application of excess time credits to a period of PRCS.
Cases are not authority for propositions not considered. (People v. Jennings (2010) 50
Cal.4th 616, 684.)
       As was the defendant in Espinoza, Tubbs is legally mandated to be subject to
PRCS for the statutory period if he applies for and accepts resentencing, as he did here.
       Department’s Role in PRCS
       Tubbs contends the March 8, 2013, sentence was illegal because the Department,
not the trial court, is the only entity that determines whether he is subject to PRCS. We
disagree. There is nothing in the Act stating the Department determines whether a
defendant is subject to PRCS.
       The statutes provide PRCS is mandatory, not discretionary. (§ 3451, subd. (a);
Espinoza, supra, 226 Cal.App.4th at pp. 639-640.) The Act and other statutory
provisions also indicate that a determination whether a defendant will be subject to
PRCS, if one need be made, will be made at sentencing or resentencing by the trial court.
For example, section 1202.45, subdivision (b) requires the trial court to impose against a
defendant convicted of a crime, and who is subject to PRCS, a PRCS revocation
restitution fine at the same time the section 1202.4, subdivision (b) restitution fine is
imposed, namely at sentencing. The trial court hardly can impose the section 1202.45,
subdivision (b) fine unless it makes a determination at sentencing that the defendant is
subject to PRCS upon eventual release from custody.
       The Act itself provides only that the Department give notice to the defendant, prior
to release from prison, of the defendant’s obligation to report to the county agency
responsible for supervising the defendant while on PRCS. (§ 3451, subd. (c)(2).) Section
3452 describes what must be included in the required notice. The terms and conditions of

                                              7.
PRCS are set forth in section 3453. Those conditions can be refined or modified only by
the local supervising county agency as described in section 3454. The local agency
responsible for PRCS is required to maintain supervision over a person until one of the
events set forth in section 3456 occurs. (Id., subd. (a).) Section 3456.5 specifies that the
local supervising agency may require the person subject to PRCS to report to the local
agency within two days or less of release. (Id., subd. (a).) Section 3457 makes clear that
the Department has “no jurisdiction over any person” who is under PRCS. Nowhere in
the Act is the Department granted the authority to set any terms and conditions of, or to
supervise anyone on, PRCS. We find nothing in the statutes, and Tubbs has cited no
statutory authority, indicating discretionary power is vested in the Department to
determine who is subject to PRCS.
       Tubbs seems to argue that section 3452, subdivision (a) implied the trial court’s
authority was conditional. Previously, that section required that a defendant “shall enter
into a postrelease community supervision agreement prior to, and as a condition of, their
release from prison.” (Stats. 2011, ch. 15, § 479.) Tubbs points out that the People tried,
unsuccessfully, at the March 8, 2013, resentencing hearing to have him agree to PRCS as
a condition of resentencing. The tradeoff at that time for obtaining resentencing pursuant
to section 1170.126 was being subject to PRCS upon release. The only conditional part
of the section is Tubbs’s acceptance. He “cannot pick and choose which portion of
realignment he agrees to and which portion he does not.” (Espinoza, supra, 226
Cal.App.4th at p. 640.) If one petitions for and accepts resentencing, it is a “package
deal” that includes PRCS. (Ibid.) If Tubbs is maintaining in this appeal that he did not
agree to be subject to PRCS, then he was not entitled to be resentenced under the Act.
       Section 3452 was modified in 2012 to delete any reference to “agreement.” (Stats.
2012, ch. 43, § 50.) Now, the language used in section 3452 is consistent with the rest of
the Act and refers to the “notice” that is to be given to a person subject to PRCS.



                                             8.
       The Department’s regulations cited by Tubbs do not support his contention that
they are “obvious indications” of the Department’s “exclusive province of deciding who
is eligible for PRCS.” A regulation is valid only if it is (1) consistent and not in conflict
with the statute, and (2) reasonably necessary to effectuate the purpose of the statute.
(Gov. Code, § 11342.2; Sheyko v. Saenz (2003) 112 Cal.App.4th 675, 687.) Thus, if a
regulation alters or amends the governing statute, it is invalid. (Sheyko, at p. 687.) Any
regulation promulgated by the Department purporting to vest in the Department the
discretion to determine who may be placed on PRCS is simply without basis in the Act.
       Regardless, we do not view the Department’s regulations as purporting to vest in
itself the exclusive authority to determine eligibility for PRCS. The regulations cited by
Tubbs, relating to forms Nos. 611 (rev. 8/12) and 1515-CS (7/11), are designed to
implement the notice requirements set forth in sections 3451, subdivision (c)(2) and
3452. It appears from the cited regulations that the Department, unlike Tubbs, recognizes
its limited role of giving notice of mandatory PRCS upon release and is not purporting to
expand its authority over PRCS.
       Conclusion
       Tubbs availed himself of the postconviction release remedy provided by the Act.
At the March 8, 2013, resentencing hearing, the trial court determined Tubbs was eligible
for resentencing under the Act in that he did not pose an unreasonable risk of danger to
public safety and otherwise met the criteria for resentencing. The trial court then
determined an appropriate new sentence, fixed and awarded custody credits, and ordered
Tubbs be subject to PRCS upon release from custody.
       The trial court is obligated to determine custody credits upon sentencing or
resentencing pursuant to sections 2900.1 and 2900.5. The Act mandates a period of
PRCS for those defendants released from prison after October 1, 2011, and the terms and
conditions of PRCS are set forth in the statute and may be refined or modified by the
local supervising agency, but not the Department. The language in the Act restricts the

                                              9.
Department’s role in PRCS to that of giving notice. It therefore follows that upon
resentencing pursuant to section 1170.126, it is neither an inappropriate nor an illegal
sentence to provide that the defendant is subject to PRCS upon release from custody.
II.    Requirement of Notice and a Hearing
       The People contend the trial court was obligated to give notice and an opportunity
to be heard before modifying the resentencing order. Tubbs claims the original
resentencing was an illegal sentence, which can be corrected without notice and a
hearing. As discussed ante, the original resentencing order was not illegal. So any
modification should have been done only after notice and a hearing.
       The Act expressly contemplates that a hearing be held when the trial court is
considering any resentencing order. (§ 1170.126, subds. (a), (m); Kaulick, supra, 215
Cal.App.4th at p. 1297, fn. 20.) Here, a resentencing hearing was held on March 8, 2013,
but no hearing was held prior to the subsequent modification of the order. The People
have both a statutory and a due process right to a hearing on any resentencing. (Kaulick,
at pp. 1297-1298.) The defendant, and in many instances victims, all have the right to
notice of any resentencing and the right to be present at any resentencing hearing. (Id. at
pp. 1296, 1299-1300.) Any modification of the resentencing order by the trial court,
including any modification, revocation, or termination of PRCS, should be on noticed
hearing. (Ibid.; § 3455.) Thus, the failure to provide notice and a hearing before
modifying the resentencing order was error.       .
III.   Abstract of Judgment*
       Tubbs claims the abstract of judgment filed March 14, 2013, does not conform to
the oral pronouncement of judgment. He asserts the abstract contains fines and fees that




*      See footnote, ante, page 1.



                                            10.
the trial court did not impose, and the description of the sentence was inaccurate. The
People did not respond to this argument in their reply brief.
       The general rule is that when there is a discrepancy between the oral
pronouncement rendering judgment, as reflected in the reporter’s transcript, and the
minute order or the abstract of judgment contained in the clerk’s transcript, the oral
pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by
statute on other grounds in People v. Turner (1998) 67 Cal.App.4th 1258, 1268; People v.
Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) It is well settled that the preparation
of the abstract of judgment is the ministerial act and it must conform to the trial court’s
oral pronouncement of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
“The clerk cannot supplement the judgment the court actually pronounced by adding a
provision to the minute order and the abstract of judgment. [Citation.]” (People v.
Zackery (2007) 147 Cal.App.4th 380, 387-389.) If the clerk includes fines or fees in the
minute order or on the abstract that were not imposed orally, they must be stricken from
the minute order and abstract. (Id. at p. 388; People v. Rowland (1988) 206 Cal.App.3d
119, 124.)
       The trial court is directed to prepare an amended abstract of judgment that
accurately reflects its oral pronouncement of sentence on March 8, 2013. (People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
                                      DISPOSITION
       The March 19, 2013, order vacating unauthorized sentence of postrelease
community supervision is reversed. The resentencing order of March 14, 2013, is




                                             11.
reinstated. An amended abstract of judgment shall be prepared, and the trial court shall
forward a copy of said document to the appropriate agencies.4

                                                                 _____________________
                                                                   CORNELL, Acting P.J.

WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.




       4The People asked us to take judicial notice of the legislative analysis of
Proposition 36. That request is denied.



                                            12.
