After PC 1172.6 Resentencing, Excess Credits, Parole?

It is generally understood under Penal Code § 2900.5(a) that a judge may award a prisoner credit towards his parole period based on days in custody served beyond his sentence. 

However, there are exceptions to this general rule.  After resentencing under Penal Code § 1172.6 (formerly Penal Code § 1170.95, the amended felony murder rule (Senate Bill No. 1437)), for example, both People v. Lamoureux (2020) 57 Cal. App. 5th 136 and People v. Wilson (2020) 53 Cal. App. 5th 42 (citing In re Sosa (1980) 102 Cal. App. 3d 1002, 1005 and Penal Code § 2900.5(a)) hold that the trial court may impose a period of parole when resentencing a petitioner “notwithstanding excess custody credits.”  Wilson, supra, at p. 46; Lamoureux, supra, at pp. 138-139.

However, in 2021, after both of these cases, the Legislature amended Penal Code § 1172.6, adding § 1172.6(d)(1), which stated that resentencing must occur “in the same manner as if the petitioner had not previously been sentenced.” 

Consequently, whether a judge must apply excess custody credits to the parole period, possibly “wiping it out” (to no parole), remains a question.  This can be a common issue because on 1172.6 resentencing, it is not unusual for resentencing to result in a new sentence that is not only time served, but for far less than just two years (the usual parole period) less.

The California Court of Appeal, Second Appellate District, ruling in People v. Fredy Rojas seems to answer this common question.

In 2013, Mr. Fredy Rojas started a fist fight with his cousin Antonio at a family party.  Rojas had come to the party when not invited and brought several fellow gang members.  Antonio asked him to leave and to take his friends with him.  Rojas then started a fist fight with Antonio.  During the fight, Mr. Rojas shouted to his companions to intervene.

Mr. Rojas’ fellow gang members intervened and the fight expanded to include 15 to 20 people.  Suddenly, one of them Mr. Rojas’ fellow gang member (Emir Acosta) fatally shot Antonio. 

A jury in the Clara Shortridge Foltz Criminal Courts Building subsequently convicted Mr. Rojas of voluntary manslaughter and found true gang and firearm enhancements.  Judge George Lomeli then sentenced Mr. Rojas to 22 years in state prison.

In 2022, after Senate Bill 1437 had been codified into law at Penal Code § 1170.95 (and then renumbered later as 1172.6), Mr. Rojas filed a petition for resentencing. 

Judge Lomeli granted the petition, vacated Mr. Rojas’ prior sentence and resentenced him to three years (mid-term on assault by force likely to cause great bodily injury (Penal Code § 245(a)(4)).  Judge Lomeli then placed Mr. Rojas’ on parole for two years.

Mr. Rojas appealed to the California Court of Appeal, Second Appellate District, the new sentence on several grounds, but the scope of this article will only summarize his argument that Judge Lomeli erred by placing him on any period of parole. 

The Second District pointed out that Mr. Rojas forfeited this argument at the trial court level by not asserting it at the trial court, however, even if he had asserted this, it would have reached the same conclusion.

The Second District explained that under Penal Code § 1172.6(h), the Legislature specified that a person resentenced under this provision “shall be given credit for time served,” however, the second sentence under subdivision (h) gives the judge discretion to impose parole: “The judge may order the petitioner to be subject to parole supervision for up to two years following the completion of the sentence.” 

In other words, the appellate court found that § 1172.6 did not mandate that the trial court award excess custody credits toward the parole period to reduce it or eliminate it.   Therefore, the appellate court denied Mr. Rojas’ appeal on this issue.

We bring this ruling to the reader’s attention because it is often assumed improperly that a judge will always or even must apply excess custody credits towards a resentenced prisoner’s parole period.  This type of assumption would be a mistake in the 1172.6 context.