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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

v.

DORIAN DREW DEMOURIE 

DUFF-GUARDADO,

Defendant and Appellant.

 A160850

 (San Mateo County

 Super. Ct. Nos. 18NF002227A,

 18SF013129B)

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 

2 All further statutory references are to the Penal Code.
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supervision, or mandatory supervision, and order the defendant to report to 

the parole or probation office closest to the defendant’s last legal residence, 

unless the in-custody credits equal the total sentence, including both 

confinement time and the period of parole, postrelease community 

supervision, or mandatory supervision. (§ 1170, subd. (a)(3), italics added.)

Section 2900.5, subdivision (a) adds in relevant part: “If the total 

number of days in custody exceeds the number of days of the term of 

imprisonment to be imposed, the entire term of imprisonment shall be 

deemed to have been served.” (§ 2900.5, subd. (a).) “ ‘[T]erm of 

imprisonment’ ” includes any period of imprisonment imposed as a condition 

of probation or otherwise ordered by a court in imposing or suspending the 

imposition of any sentence, 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, by any court, or by any duly authorized administrative 

agency.” (§ 2900.5, subd. (c), italics added.) 

As the Supreme Court summarized in Morales, “section 2900.5 states 

two things relevant here: (1) the person is entitled to credit for time served, 

and (2) the credit can reduce or eliminate the period of parole.” (Morales, 

supra, 63 Cal.4th at p. 406.) 

Here, as discussed, appellant was sentenced to two years in state 

prison (730 days) and subject to a three-year parole term (1,095 days). There 

is no disagreement that appellant’s 1,825 days of presentence custody credits 

applied against his two-year prison sentence (§ 1170, subd, (a)(3); Sosa, 

supra, 102 Cal.App.3d at pp. 1005–1006), resulting in 1,095 days of excess 

presentence credits. Under the authorities referenced above, these 1,095 

days of excess presentence credits further apply against the parole portion of 
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appellant’s sentence. (§§ 1170, subd. (a)(3), 2900.5; Sosa, supra, 102 

Cal.App.3d at p. 1005 [presentence credit applies against parole portion of 

sentence].) Accordingly, appellant’s 1,095 days of excess presentence credits 

apply to eliminate his 1,095-day parole term, and he is no longer subject to 

parole in this case.

 B. Parole Revocation Restitution Fine

Appellant also contends the $300 parole revocation restitution fine 

imposed on him pursuant to section 1202.45 should be stricken. Again, the 

People agree, as do we. Under section 1202.45, in “every case where a person 

is convicted of a crime and his or her sentence includes a period of parole,” a 

court must “assess an additional parole revocation restitution fine” when a 

restitution fine pursuant to section 1202.4, subdivision (b) is imposed. (§ 

1202.45, subd. (a).) Given appellant’s three-year parole period is eliminated

and his sentence no longer includes a period of parole, the parole revocation 

restitution fine is stricken. (See People v. Hannah (1999) 73 Cal.App.4th 270, 

274–275 [concluding it would be inappropriate to impose a section 1202.45 

fine when sentence does not include period of parole].) 

DISPOSITION

In Case 227A, appellant’s excess presentence credits are to be applied 

against his parole term, and the $300 parole revocation fine under section 

1202.45 is stricken. As so modified, the judgment is affirmed. The clerk of 

the superior court is directed to modify the abstract of judgment to reflect 

this modification and to forward a copy of the new amended abstract to the 

Department of Corrections and Rehabilitation. In Case 129B, the judgment 

is also affirmed.
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Fujisaki, J.

A160850/People v. Duff-Guardado