Filed 10/10/14

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Appellant ,

v.
ABRAHAM ISAAC TUBBS , Defendant and Respondent

. F067312 (Super. Ct. No. CF9 7581807)



### OPINION

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.2

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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, t he trial court , on its
own and without noti ce 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 A ND 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 conviction s and had served three prison

terms. Tubbs was sentenced pursuant to the T hree S trikes law a s a third strike
defendant. 3

1 All further statutory references are to the Penal Code.
2 Proposition 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).
3 Some facts had to be extrapolated and discerned from the r ecord, 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 1997.3

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Tubbs petitioned for resentencing pursuant to the Act and a hearing on his petition

wa s 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 pla ce 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 dete rmine 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 sente nce 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 ser ved 16 years in actual custody , but concluded that it did n o t “see any exceptions here” and ordered Tubbs to participate in PRCS pursuant to section 3451 upo n release from custody. The abstract of judgment for the resentencing was filed March 14, 2013 , and
indicated Tubbs had been resentenced pursu ant 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 wa s 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 Marc h 19, 2013 , order modifying the judgment. T he People filed a request th at we take judicial notice of the legislative analysis of Proposition4

.

36. By order dated July 25, 2013, we deferred ruling on the request pending consideration of the merits of the ap peal.
DISCUSSION The People argue the trial court made two errors. First, as PRCS is mandated by section 3451, the y contend the trial court erred in applying excess time credits resulting from resentencing under the Act to the PRCS term . Hence, the tria l 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 authori ty to decide whether a
defendant , upon release from prison , is subject to PRCS.
Second , the People contend that any resentencing under the A ct , and any modification or alteration of that new sentence, require s notice and a hearing. Tubbs asserts the trial court’s March 19 , 2013, order was correcting an unauthorized sentence and did not req uire a hearing.
I. PRCS Require ment In its March 19 , 2013, modification of the resentencing order, the trial court stated ,

“ T he decision of whether or not defendant will be subject to parole or postrelease community supervision is one made by the Secr etary 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.”
Th ere are two prob lems 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, cust ody credit s for the time served must be awarded to5

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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 impose d. (§ 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 ord er following the March 8 , 2013, resentencing hearing specified that Tubbs was to be released immediately , not remanded into anyone’s custody, pursuant to resentencing un der section 1170.126. The Act “has two primary prongs: creating a new sentencing mec hanism 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 loc al 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.c a.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 Tub bs to participate in PRCS. Participation in PRCS is mandatory for anyone resentenced under the Act and released from custody

. C ustody credits cannot reduce the mandatory PRCS supervision period. ( Espinoza , supra , 226 Cal.App.4th at pp. 639

- 640.) Conseq uently, any judgment or order6

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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
thoro ughly analyzed the Act and the individual statutes under facts substantially similar
to those of this case. I n 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 ov er 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 person s convicte d of certain felon y 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
P R CS.7

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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, n either the parties nor this court’s opinion in Torres addressed applicatio n 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 p eriod if he applies for and accept s resentencing, as he did here. Department’s Role in PRCS
Tubbs contends the March 8 , 2013, sentence was illegal b ecause the Department , not the trial court, is the only entity that determines whether he is subject to PRCS. W e disagree. There is nothing in the Act stating the Department determines whether a defendant is subject to PRCS

. T he statutes provide PRCS is mandatory, not discretionary. (§ 3451, subd. (a) ; Espinoza, supra, 226 Cal.App.4th at pp. 639

- 640.) T he 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) requi res 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 t o the defenda nt, 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. T he term s and conditions of8

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PRCS are set forth in section 3453 . T hose 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 m akes 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 no thing 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 s ection 3452, subdivision (a) implied the trial court’s authority was conditional. P reviously , 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 Peop le 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 117 0 .1 26 was being subject to PRCS upon release

. The o nly 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.) I f 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 , t he language used in section 3452 is consistent with the rest of
the Act and refer s to the “notice” that is to be given to a person subject to PRCS.9

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T he 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 Depa rtment 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
it self the exclusive authority to dete rmine eligibility for PRCS. The regulations cited by
Tubbs , relating to form s 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 re gulations 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 th e postconviction release remedy provid ed 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.
T he trial court is obligated to determine custody credits upon sentencing or
resentenci ng pursuant to sections 2900.1 and 2900.5 . T he 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 sup ervising agency, but not the Department. The language in the Act restricts the10

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Department’s role in PRCS to that of giving notice. I t therefore follows that upon resentencing pu rsuant to section 1170.126 , it is neither an inappropriate nor an illegal

sen tence to provide that the defendant is subject to PRCS upon release from custody

. II. Require ment 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 c laims 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 h earing. The Act expressly contemplates that a hearing be held when the trial court is considering any resentencing order. (§ 1170.126, subd s

. (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 P RCS, should be on noticed hearing. ( Ibid. ; § 3455.) Thus, t he failure to provide notice and a hearing before modifying the resentencing order was error.

. III. Abstract of Judgment *
Tubbs c laims 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 1.11

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the trial court did not impose , and the description of the sentence was inaccurate. The People did not res pon d to this argument in their r eply brief. The gene ral 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 abstrac t 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 provis ion 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 fr om 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. ( P eople v.
Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION The March 19, 2013 , o rder v acating u nauthorized s entence of p ostrelease

c ommunity s upervision is reversed. The resentencing order of March 14, 2013 , is12

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reinstated. A n amended abstract of judgm ent shall be prepared , and the trial court shall
forward a copy of said d ocument to the appropriate agencies. 4

_____________________ C ORNELL , Acting P.J.

WE CONCUR:

_____________________ G OMES , J.

_____________________ P OOCHIGIAN , J.

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