People v. Simmons CA3

DISCUSSION

I The Matter Should be Remanded to Determine Whether Resentencing Is Required In support of his claim on appeal, defendant relies on Penal Code former section 1170, subdivision (a)(3),1 which provides in relevant part: “In any case in which the

Undesignated statutory references are to the Penal Code.

2 amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole 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.” The People agree defendant is subject to the determinate sentencing law provision of section 1170, relied on by defendant. The People also agree that, pursuant to section 1170, subdivision (a)(3), defendant should have been released by the trial court and ordered to report to…