Filed 10/8/15 P. v. Smith CA2/6

                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                      SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                        2d Crim. No. B258127
                                                                                 (Super. Ct. No. CR48902)
     Plaintiff and Respondent,                                                       (Ventura County)

v.

JONATHAN LEE SMITH,

     Defendant and Appellant.



                    Jonathan Lee Smith appeals the trial court's order vacating its prior
order applying excess custody credits against a three-year period of Post-Release
Community Supervision (PRCS) (Pen. Code,1 § 3451, subd. (a)). PRCS was
imposed when appellant was resentenced on a third-strike sentence of 29 years to life
under the Criminal Justice Realignment Act of 2011(the Act) (§ 1170.126). The court
imposed a 14-year sentence, released appellant from prison with credit for time served,
and placed him on PRCS for a period of three years as provided in section 3451,
subdivision (a) of the Act. The court subsequently granted appellant's motion to
amend the judgment by applying 741 days of excess custody credit against his three



          1 All further statutory references are to the Penal Code.
years of PRCS. The court concluded that appellant was entitled to the credits under In
re Sosa (1980) 102 Cal.App.3d 1002 (Sosa).
                    After we concluded in a published opinion that Sosa credits do not apply
to PRCS imposed under the Act (People v. Espinoza (2014) 226 Cal.App.4th 635
(Espinoza)), the People moved the trial court to vacate its order amending the abstract
of judgment to award such credits. The court granted the motion and issued a new
order placing appellant on PRCS for three years, effective as of the date of its original
resentencing order.
                    Appellant contends that Espinoza was wrongly decided. He also claims
that the court's reconsideration of its prior order was barred by res judicata and lack of
jurisdiction, and that its reliance on Espinoza was premature. None of these claims is
persuasive.
                    "Where the presentence credits exceed the total state prison term, the
excess credits, commonly known as Sosa credits, are deducted from the defendant's
parole period. [Citation.]" (Espinoza, supra, 226 Cal.App.4th at p. 638.) Sosa credits
are awarded pursuant to subdivision (c) of section 2900.5, which "states that a 'term
of imprisonment' includes 'any period of imprisonment imposed as a condition of
probation or otherwise ordered . . . , and also includes any term of imprisonment,
including any period of imprisonment prior to release on parole and any period
of imprisonment and parole, prior to discharge, whether established or fixed by statute
. . . .'" (Ibid.)
                    In Espinoza, we concluded that PRCS does not constitute a "term of
imprisonment and parole" as contemplated in subdivision (c) of section 2900.5. We
reasoned that PRCS is not analogous to parole and applies "[n]otwithstanding any
other law" as provided in section 3451, subdivision (a). (Espinoza, supra, 226
Cal.App.4th at p. 639.) We further explained, "[t]here is nothing absurd about
requiring appellant to participate in PRCS. Appellant's prison credits are large but his
situation is not sui generis. The Legislature is presumed to have known that a person

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serving a [third-strike] sentence would have such excess credits, sometimes hundreds,
sometimes thousands, of days. Nevertheless, it required PRCS." (Id. at p. 640.)
              Appellant urges us "to reconsider Espinoza and to conclude PRCS is
more similar than different from parole for purposes of the award of excess credits."
Instead of offering any argument to support such a conclusion, he asks us to take
judicial notice of the briefing in Espinoza and in particular the petition for review,
which is included in the record on appeal.
              We decline the request for judicial notice. Merely referring to arguments
raised in another case is not proper appellate argument. (See People v. Stanley (1995)
10 Cal.4th 764, 793, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, p.
469 ["'[E]very brief should contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the court may treat it as
waived, and pass it without consideration'"].) In any event, the arguments raised in
Espinoza were fully considered and rejected in that case and the Supreme Court denied
review. Moreover, no appellate court has reached a contrary result. Appellant gives
us no legitimate reason to reconsider our decision.
              Appellant's additional challenges are also unavailing. The court's
reconsideration of its order granting Sosa credits against appellant's term of PRCS is
not barred by res judicata. That doctrine only applies to rulings that are merely
voidable rather than void. (See People v. Ramirez (2008) 159 Cal.App.4th 1412,
1422.) The order granting Sosa credits was an unauthorized sentence because it could
not have been lawfully imposed under any circumstances. (Espinoza, supra, 226
Cal.App.4th at pp. 639-640; People v. Scott (1994) 9 Cal.4th 331, 354.) Accordingly,
the order was a void judgment subject to correction at any time. (Scott, at p. 354;
People v. Chagolla (1983) 144 Cal.App.3d 422, 434.)
              The law directly refutes appellant's claim that the court lacked
jurisdiction to correct the unauthorized sentence after execution of the sentence had
begun. (People v. Karaman (1992) 4 Cal.4th 335, 349 & fn. 15.) His argument that

                                             3
no changed circumstances warranted reconsideration of the court's order ignores the
issuance of Espinoza. Moreover, he offers no legal support for his claim that "the
doctrine of finality of judgments" precluded the court from correcting an illegal
sentence, which the law makes clear can be rectified at any time.
              Appellant's claim that the court's reliance on Espinoza was premature
is legally unsupportable and is in any event moot now that the remittitur has issued.
(See In re Anna S. (2010) 180 Cal.App.4th 1489, 1493.) His claim that the court
should have dismissed the case in the interests of justice under section 1385 is also
devoid of legal authority. In any event, the claim is premised on the assertion that
he detrimentally relied on the finality of the order awarding him Sosa credits. It is
well-settled, however, that "[a] defendant can acquire no legitimate expectation of
finality in an illegal sentence, because such a sentence remains subject to
modification." (U.S. v. Jackson (10th Cir. 1990) 903 F.2d 1313, 1316, rehg. en banc
granted on other grounds in U.S. v. Jackson (10th Cir. 1990) 921 F.2d 985.) The court
had no authority to award him Sosa credits and he had no justified expectation of
retaining the improper award of those credits.
              The judgment (order vacating award of Sosa credits) is affirmed.
              NOT TO BE PUBLISHED.



                                          PERREN, J.


We concur:


              GILBERT, P. J.



              YEGAN, J.


                                            4
                            Matthew P. Guasco, Judge

                       Superior Court County of Ventura
                      ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief
Deputy, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General,
Scott A. Taryle, Supervising Deputy Attorney General, Kimberley K. Baker-
Guillemet, Deputy Attorney General, for Plaintiff and Respondent.
