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Name: People v. Tubbs
Case #: F067312
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/10/2014

Trial court improperly modified resentenced strike offender’s sentence to delete requirement that he be subject to postrelease community supervision (PRCS). Tubbs petitioned for resentencing under Penal Code section 1170.126, the Three Strikes Reform Act of 2012 (Prop. 36). The trial court resentenced him, and ordered that he be subject to PRCS pursuant to Penal Code section 3451. Less than two weeks later, without notice to the parties, the court on its own motion ordered the judgment be modified to omit the PRCS requirement. The prosecutor appealed, contending that modification of the sentence required notice and a hearing, and that any resentencing of Tubbs under the Act must include PRCS. Held: Modification reversed. Section 3451 provides that, 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” be subject to PRSC. The sentencing court makes the determination whether a defendant will be subject to PRCS, not the Department of Corrections and Rehabilitation as Tubbs contended. Participation in PRCS is mandatory for anyone resentenced under the Act and released; custody credits cannot reduce the supervision period. Here, Tubbs was legally mandated to be subject to PRCS for the statutory period under section 3451. Further, both Tubbs and the prosecutor had a right to be present at a hearing on resentencing. The failure to provide notice and a hearing before modifying the sentencing order was error.