Filed 3/21/16 P. v. Turner CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051422

         v.                                                            (Super. Ct. No. 11CF0985)

DONALD LOREN TURNER,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher Evans, Commissioner. Affirmed in part, reversed in part and remanded with
directions.
                   Theresa Osterman Stevenson, under appointment by the Court of Appeal,
for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth
M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
              Donald Loren Turner appeals from an order granting his petition for
resentencing under Proposition 47. Although he approves of the trial court’s reduction of
his felony conviction to a misdemeanor, he contends the court erred in subjecting him to
a period of parole. We disagree. However, we do agree with appellant that his excess
custody credits should be counted toward his parole period and applicable fines and that
he is not required to register as a narcotics offender. Therefore, we affirm in part, reverse
in part and remand for further proceedings.
                    FACTUAL AND PROCEDURAL BACKGROUND
              In May 2011, appellant pleaded guilty to felony drug possession and
admitted having served two prior prison terms. (Health & Saf. Code, §§ 11377, subd. (a);
Pen. Code, § 667.5, subd. (b).)1 As part of the plea agreement, the trial court suspended
imposition of sentence and placed appellant on three years’ probation. However, four
months later, the court terminated appellant’s probation based on his failure to enroll in a
drug treatment program and sentenced him to 16 months in prison. At that time, the trial
court also ordered appellant to pay certain fines and fees and to register as a narcotics
offender.
              Following his release from prison in 2012, appellant was placed on
postrelease community supervision (PRCS). In late 2014, he petitioned the trial court to
have his felony conviction reduced to a misdemeanor under section 1170.18, which was
added to the Penal Code pursuant to Proposition 47. Although the prosecution did not
object to this request, it did ask that appellant be placed on parole in light of his “very
long record” of absconding and violating the terms of his probation and parole.
              Appellant opposed further supervision given he had already served his
underlying prison sentence. Because his custody credits exceeded both the maximum




       1      All further statutory references are to the Penal Code.


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term for a misdemeanor sentence, one year, and the statutorily prescribed period of parole
under Proposition 47, also one year, appellant claimed he was “maxed out” and entitled
to immediate release. The trial court disagreed. After reducing appellant’s felony
conviction to a misdemeanor and resentencing him to 365 days in jail, the court placed
him on parole for one year. In so doing, the court applied appellant’s custody credits
toward his misdemeanor sentence but not his parole term.
                                                  DISCUSSION
                                   Propriety and Length of Parole Term
                  Appellant contends the trial court erred by 1) subjecting him to parole, and
2) failing to reduce the length of his parole by the amount of his excess custody credits,
i.e., the difference between the amount of custody credit he had on his original sentence
and the term he received on resentencing. We find appellant was subject to parole but the
term thereof should have been reduced by his excess custody credits.
                  With respect to the imposition of parole, Proposition 47 draws a distinction
between defendants who are currently serving their original sentence and those who have
already completed their sentence. Whereas the law subjects defendants in the former
category to one year of parole (§ 1170.18, subds. (a)-(d)), it does not require parole for
defendants in the latter category (id., at subd. (f)).2 Proposition 47 also states that anyone



         2          Section 1170.18 provides in pertinent part:
                    “(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act
been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the
judgment of conviction in his or her case to request resentencing . . . .
                    “(b) Upon receiving a petition under subdivision (a), the court shall determine whether the
petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the
petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in
its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.
                    “ [¶] . . . [¶]
                    “(d) A person who is resentenced pursuant to subdivision (b) shall be given credit for time served
and shall be subject to parole for one year following completion of his or her sentence, unless the court, in its
discretion, as part of its resentencing order, releases the person from parole. . . .
                    “[¶] . . . [¶]


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who is resentenced under its provisions “shall be given credit for time served” and that
nothing in the law “is intended to diminish or abrogate any rights or remedies otherwise
available to the petitioner or applicant.” (§ 1170.18, subds. (d) & (m)).
                  Although these provisions seem straightforward, they have generated a rift
in the Courts of Appeal regarding the issues presented in this appeal. While appellant’s
appeal was pending, this court issued People v. Morales (2015) 238 Cal.App.4th 42
(Morales), which amounted to a split decision for defendants. Morales held inmates like
appellant, who are on PRCS at the time they seek Proposition 47 relief, are still serving
their underlying sentence and are thus subject to parole upon resentencing. However,
they are entitled to have their excess custody credits counted toward their parole.
                  On the heels of Morales, the trial court issued an order modifying
appellant’s sentence.3 Among other things, the court determined appellant’s custody
credit exceeded both his misdemeanor sentence and his one-year parole period. It
therefore discharged appellant from parole.
                  A month later, in August 2015, the California Supreme Court granted
review of Morales (S228030), as well as People v. Hickman (2015) 237 Cal.App.4th 984,
a decision from the Second District which reached the opposite conclusion from Morales
on the credits issue (S227964). The split reemerged after the Second District reaffirmed
the holding of Hickman in People v. McCoy (2015) 239 Cal.App.4th 431, and this court
reaffirmed the holding of Morales in People v. Armogeda (2015) 240 Cal.App.4th 1039.
But review has been granted in both McCoy (S229296) and Armogeda (S230374).
                  Based on the foregoing, it is apparent the California Supreme Court is
going to speak to the issues presented in this appeal. And when it does, its ruling will be


                   “(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a
felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time
of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case
to have the felony conviction or convictions designated as misdemeanors.” (Italics added.)
          3        At appellant’s request, we augmented the record on appeal to include this order.


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dispositive of those issues. In the meantime, we still have to decide the proper resolution
of appellant’s case. While we salute the trial court’s initiative in modifying appellant’s
sentence to comport with Morales, we conclude the court lacked jurisdiction to make the
modification because this appeal was already pending at that time. (People v.
Scarbrough (2015) 240 Cal.App.4th 916; People v. Awad (2015) 238 Cal.App.4th 215.)
Therefore, the modification order is void. (Ibid.)4 Nevertheless, we continue to adhere to
the position this court exposed in Morales and Armogeda that defendants who are
resentenced under Proposition 47 are subject to parole if they are on PRCS, but the length
of their parole should be reduced by their excess custody credits.
                  In arguing against the imposition of parole, appellant contends the term
“sentence” in section 1170.18 refers only to his underlying prison term. Therefore, once
he finished that term, he had “completed” his sentence and was not subject to further
supervision. However, following his release from prison, appellant was required to be on
PRCS, which itself is a form of parole. In fact, parole was a “mandatory component” of
his original felony sentence. (People v. Nuckles (2013) 56 Cal.4th 601, 609.) While
parole constitutes a “distinct phase” of a defendant’s punishment apart from his
underlying prison term, it is an integral aspect of his original sentence during which time
he is “subject to substantial restraints on his liberty and is deemed to remain in the
constructive custody of the Department of Corrections and Rehabilitation.” (Ibid.)
Therefore, contrary to appellant’s claim, his sentence was not complete the moment he
stepped out of prison.
                  Appellant points out that under section 1170.18, subdivision (d) a defendant
who is resentenced under Proposition 47 “shall be subject to parole for one year



         4         Although section 1237.1 gives trial courts concurrent jurisdiction to correct errors involving the
calculation of presentence credits while an appeal is pending, that section applies only to mathematical or clerical
mistakes, not substantive issues like the ones involved in this case. (People v. Delgado (2012) 210 Cal.App.4th
761.)


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following completion of his or her sentence . . . .” According to appellant, this shows
parole is separate from sentencing, and to the extent Proposition 47 is ambiguous on this
point, we are required to construe the measure in his favor under the rule of lenity.
However, that rule only applies in cases of unresolvable ambiguity – when the court can
do nothing more than guess at the meaning of a law. (People v. Nuckles, supra, 56
Cal.4th at p. 611.) That is not the case here. By its terms, section 1170.18, subdivision
(d) applies when the defendant is resentenced to a misdemeanor. Since misdemeanor
sentences do not include a period of parole, it is not surprising parole is described as
something that follows completion of the defendant’s sentence. But that has no bearing
on the defendant’s original felony sentence, which, as explained above, included a
mandatory period of parole that appellant was still serving when he was resentenced.
Thus, reading section 1170.18, subdivision (d) in its proper context, it does not support
appellant’s position.
              Appellant also contends subjecting those who are already serving PRCS to
an additional term of parole after they are resentenced under Proposition 47 will frustrate
the initiative’s goal to save taxpayer dollars by reducing the number of people in prison.
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) argument in favor of Prop. 47,
p. 38.) Imposing parole in Proposition 47 cases will no doubt result in some defendants
returning to prison for violating the terms of their parole. But in enacting Proposition 47,
the voters also expressed concern for public safety and the need to keep dangerous
criminals off the streets. (Ibid.) Requiring defendants who are on PRCS to remain under
parole supervision following resentencing is an entirely reasonable method of helping
ensure that only nondangerous defendants are able to benefit from the procedures
contained in Proposition 47.
              For all of these reasons, we construe Proposition 47 as authorizing parole
for defendants like appellant who are on PRCS at the time they are resentenced. As



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appellant points out, the trial court does have the discretion to waive parole in appropriate
cases. (§ 1170.18, subd. (d).) However, given appellant’s poor performance on
probation and parole in the past, the court did not abuse its discretion by imposing parole
in his case.
               Appellant further contends it was improper for the court to give him a full
year on parole, given the amount of time he had already served in prison. On this point,
we must agree with appellant that his excess custody credits should have been used to
reduce the term of his parole. Our conclusion in this regard is derived from the language
of Proposition 47 itself. As we have pointed out, the initiative explicitly states that
anyone who is resentenced under its provisions “shall be given credit for time served”
and that nothing in the law “is intended to diminish or abrogate any rights or remedies
otherwise available to the petitioner or applicant.” (§ 1170.18, subds. (d) & (m).) Those
other rights and remedies include the right to custody credit under section 2900.5, which
entitles defendants to credit against their term of imprisonment, including parole time, for
any time spent in custody prior to sentencing. (§ 2900.5, subds. (a), (c); In re Sosa
(1980) 102 Cal.App.3d 1002.) In fact, the law is clear defendants are not required to
serve time on parole if their “in-custody credits equal [their] total sentence, including
both confinement time and the period of parole.” (§ 1170, subd. (a)(3).)
               The drafters of Proposition 47 could easily have included language in the
initiative to exempt persons resentenced under its terms from these well-established rules.
But rather than do so, they specifically extended to defendants seeking resentencing relief
all the rights and remedies to which they would otherwise be entitled. (§ 1170.18, subd.
(m).) This includes the right to have presentence credits deducted from any parole period
they are ordered to serve at the time of resentencing. Therefore, the trial court erred in
failing to apply appellant’s excess custody credits toward his parole period.




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                         Fines, Fees and Registration Requirement
              At the time appellant was sentenced to prison in 2011, the trial court
ordered him to pay a $40 court security fee, a $50 drug lab fee and a conviction
assessment fee in the amount of $30. (§ 1465.8; Health & Saf. Code, § 11372.5, subd.
(a); Gov. Code, § 70373.) In addition, the court imposed restitution and parole
revocation fines in the amount of $200 each and ordered appellant to register as a
narcotics offender. (§§ 1202.4, subd. (b), 1202.45, Health & Saf. Code, § 11590.)
Regarding the allocation of custody credits, the law is clear such credits shall first be
applied to the defendant’s prison sentence and the term of his parole, with any remaining
credit to be applied to his fines on a proportional basis. (§ 2900.5, subd. (a); People v.
Robinson (2012) 209 Cal.App.4th 401, 406-407; People v. McGarry (2002) 96
Cal.App.4th 644, 646.) Therefore, depending on how many custody credits appellant has
accumulated – a factual question best resolved by the trial court – he may be entitled to a
reduction of his financial penalties. Although respondent contends appellant forfeited his
right to challenge his restitution and parole revocation fines by failing to object to them
when they were imposed, appellant had no reason to do so because he did not have any
excess custody credits at that time. Therefore, the failure to object does not preclude a
reduction of those fines.
              It is also apparent the trial court erred in requiring appellant to register as a
narcotics offender because he was not convicted of an offense to which the registration
requirement applies. (Health & Saf. Code, § 11590.) Indeed, respondent candidly admits
the registration requirement should be stricken in this case.
                                       DISPOSITION
              The trial court’s modification order filed on July 23, 2015 is void for lack
of jurisdiction. The trial court’s original resentencing order is affirmed except to the
extent the court failed to consider appellant’s excess custody credits in determining the



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length of his parole and the amount of his applicable fines and fines. The matter is
remanded with directions for the court to apply appellant’s excess custody credits toward
his parole period and his applicable fines and fees and to strike his narcotics registration
requirement.




                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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