Filed 7/15/16 P. v. Nickaboine 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051522

                   v.                                                  (Super. Ct. No. 12CF0606)

MARLIN DEAN NICKABOINE,                                                OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie L. Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Jared G. Coleman, 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, Peter Quon, Jr., and
Anthony DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
                   The trial court granted defendant Marlin Dean Nickaboine’s petition to
reduce his felony conviction for receiving stolen property to a misdemeanor conviction
under the “Safe Neighborhoods and Schools Act” (Proposition 47). But, after giving
defendant credit for time served, the court placed him on parole for the remaining eight
months that he was subject to postrelease community supervision (PRCS). Claiming
PRCS does not constitute “currently serving a sentence,” defendant contends the trial
court lacked jurisdiction to impose parole. Alternatively, he argues the parole condition
violated his right to equal protection and the prohibition against ex post facto laws.
Finally, defendant also claims the trial court should have reduced his restitution and
parole revocation fines. Finding no error, we affirm the trial court’s postjudgment order
in its entirety.
                                                  I
                         FACTS AND PROCEDURAL BACKGROUND
                   In 2012, the district attorney charged defendant with receiving stolen
property (Pen. Code, § 496, subd. (a); all further statutory references are to this code).
The amended felony complaint alleged two prison priors (§ 667.5, subd. (b)), and that
defendant had suffered a prior serious or violent felony conviction (§§ 667, subds. (d),
(e)(1), 1170.12, subds. (b), (c)(1)). Defendant pled guilty to the charge and admitted the
allegations. In return, the trial court struck the prison priors and strike conviction
allegations, sentenced defendant to state prison for a term of 16 months, and imposed
fines, including $240 each for restitution (§ 1202.4, subd. (b)) and parole revocation
(§ 1202.45). The court awarded defendant 92 days of actual and conduct credits.
                   In February 2015, defendant petitioned to have his felony conviction
recalled under Proposition 47. At the time, defendant was on PRCS. The trial court
recalled defendant’s prior sentence, redesignated his conviction as a misdemeanor,
ordered him to serve 365 days in county jail, but gave him 183 days of actual credit and
182 days of conduct credit. Based on a representation that defendant’s PRCS would

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terminate in eight months, the court ordered defendant placed on parole for that period of
time.
                                              II
                                       DISCUSSION


A. Introduction
              The issues raised in this appeal require the interpretation of constitutional
provisions and statutes.
              We have previously considered and rejected similar claims in decisions
now pending before the California Supreme Court. (People v. Pinon (2015) 238
Cal.App.4th 1232, review granted Nov. 18, 2015, S229632; People v. Armogeda (2015)
240 Cal.App.4th 1039, review granted Dec. 9, 2015, S230374.) Defendant urges us not
to follow the reasoning in these cases. Ultimately, the Supreme Court is going to resolve
the issues presented here. Nonetheless, until that court rules on these matters, we
continue to adhere to the conclusions expressed in our prior opinions.


B. Section 1170.18
              Section 1170.18, subdivision (a) provides, “[a] person currently serving a
sentence for a conviction . . . of a felony . . . who would have been guilty of a
misdemeanor under” the statutory amendments enacted as part of Proposition 47 “may
petition for a recall of sentence” and “request resentencing.” (Italics added.) If the court
determines the petitioner “satisfies the criteria in subdivision (a)” and does not “pose an
unreasonable risk of danger to public safety,” his or her “felony sentence shall be recalled
and the petitioner resentenced to a misdemeanor.” (§ 1170.18, subd. (b).) In addition,
the successful petitioner “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



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discretion, as part of its resentencing order, releases the person from parole.” (§ 1170.18,
subd. (d).)
               Subdivision (f) of section 1170.18 allows “[a] person who has completed
his or her sentence for a conviction, . . . who would have been guilty of a misdemeanor
under” Proposition 47, to also file a petition seeking redesignation of the felony
conviction as a misdemeanor. (§ 1170.18, subd. (g).) But, unlike a petitioner who is
currently serving a sentence, one granted relief under subdivision (f) is not subject to any
further restriction on his or her freedom.
               Noting that because he had been released from prison and placed on PRCS,
defendant argues he was no longer “serving a sentence” when he filed the petition. Thus,
he contends the portion of the trial court’s order imposing the parole term was erroneous.
We disagree.
               Section 1170.18, subdivision (a), applies to a person who is “currently
serving a sentence for a [felony] conviction . . . .” In this case, the trial court sentenced
defendant to state prison after he pled guilty to a felony charge of receiving stolen
property. Under section 3000, subdivision (a)(1), his sentence “include[d] a period
of . . . postrelease community supervision.”
               Citing section 2900.5 and dicta in People v. Espinoza (2014) 226
Cal.App.4th 635, wherein the court stated “we do not view PRCS as punishment” (id. at
p. 640), defendant argues, “being under PRCS includes a finding that a person[’]s
sentence has been served or ‘deemed to be served.’” Section 2900.5 allows a defendant’s
presentence custody to be used to reduce the defendant’s “term of imprisonment,” which
the statute defines as limited to “any period of imprisonment” or “parole.” (§ 2900.5,
subds. (a) & (c).) But as discussed above, section 1170.18, subdivision (a), refers to “[a]
person currently serving a sentence” (italics added), not a “‘term of imprisonment.’”
(§ 2900.5, subds. (a) & (c).)



                                               4
              Statutes, cases, and even the California Rules of Court have employed the
term “sentence” in a variety of contexts where a person is subject to some form of
judicially imposed sanction other than incarceration. (People v. Davis (2016) 246
Cal.App.4th 127, 139-140, fns. 5 & 6 [citing authorities for conclusion “the term
‘sentence’ can be, and is, used to refer both to a term of confinement specifically and to
criminal punishment generally”].) In Davis, the court held the phrase, “currently serving
a sentence” appearing in section 1170.18, subdivision (a), means “all persons . . . subject
to judicial sanction under a felony conviction . . ., rather than only those persons
. . . actually confined.” (Id. at p. 142, fn. omitted.) Further, as the Supreme Court
recently noted, “The purpose behind section 2900.5—to equalize treatment of those who
can and those who cannot post bail—is irrelevant” in the context of a proceeding under
Proposition 47 to reduce a felony conviction to a misdemeanor conviction and resentence
a defendant. (People v. Morales (2016) 63 Cal.4th 399, 408.)
              Defendant’s citation to Espinoza is also of no assistance. That case
involved the Three Strikes Reform Act or 2012 (Proposition 36). The defendant
succeeded in being resentenced as a second strike offender, but the trial court ordered
him placed on PRCS upon his release from prison. The defendant challenged the latter
ruling. The appellate court affirmed. Its comment on the nature of PRCS was made in
response to the defendant’s claim that obligating him to participate in PRCS violated the
constitutional prohibition against ex post facto laws and was based on its earlier
conclusion the phrase “‘term of imprisonment’” appearing in section 2900.5 “does not
include PRCS.” (People v. Espinoza, supra, 226 Cal.App.4th at pp. 638.) “Appellant’s
original sentence was 25 years to life. He petitioned for and was resentenced to seven
years four months, and ordered to participate in PRCS which cannot exceed three years.
[Citation.] A statute that reduces the ‘term of imprisonment’ within the meaning of
section 2900.5, subdivision (c) is not an ex post facto violation.” (Id at pp. 640-641.)



                                              5
              Since defendant’s “sentence” included PRCS upon his release from prison
and he was on PRCS when he petitioned to have his felony conviction redesignated as a
misdemeanor. The trial court properly concluded that defendant was currently serving
his sentence, thereby requiring him to serve the remaining period of PRCS on parole.1


C. Defendant’s Constitutional Claims
              Alternatively, defendant argues imposing the parole term violated his
constitutional rights to equal protection and to not be subject to an ex post facto law.
These arguments lack merit.
              First, we note that, as to both constitutional claims, defendant voluntarily
petitioned for relief under Proposition 47. Where one “petitions for and accepts
resentencing, it is a ‘“package deal.”’” (People v. Tubbs (2014) 230 Cal.App.4th 578,
587.) Thus, if a person serving a sentence for a felony conviction petitions to have his or
her conviction redesignated as a misdemeanor under Proposition 47, but is unwilling “to
be subject to [parole], then he was not entitled to be resentenced under the Act.” (Ibid.
[applying rule to resentencing under Three Strikes Reform Act of 2012 where after
release from prison petitioner is subject to PRCS].) Had defendant not wanted to accept
parole, he could have chosen to either not file a petition for resentencing under section
1170.18, or delay filing the petition until his PRCS terminated. His decision to file the
petition while still currently serving his sentence invariably led to the obligation to serve
the remaining eight months of his sentence subject to parole under subdivision (d) of
section 1170.18.

1                Subdivision (d) of section 1170.18 requires “[a] person who is resentenced
. . . shall be subject to parole for one year following completion of his or her sentence.”
But subdivision (e) of this statute declares, “[u]nder no circumstances may resentencing
under this section result in the imposition of a term longer than the original sentence.”
Thus, we conclude the trial court properly limited the length of defendant’s parole to the
remaining eight months of his PRCS term. (People v. Morales, supra, 63 Cal.4th at
p. 409.)

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              Second, each constitutional claim fails on the merits. As for the alleged
denial of equal protection, defendant argues no rational basis exists for Proposition 47’s
different treatment of persons “who have completed their term of imprisonment and have
been released to PRCS,” and persons “who have completed their term of imprisonment
but were not released to PRCS.” The classifications that defendant asserts Proposition 47
creates are illusory. “The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated equally.
[Citation.] Accordingly, ‘“[t]he first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner.”’” (People v. Brown (2012) 54
Cal.4th 314, 328; People v. Morales, supra, 63 Cal.4th at pp. 408-409.)
              In People v. Morales, supra, 63 Cal.4th 399, the Supreme Court recently
rejected a similar equal protection claim in holding a person resentenced under
Proposition 47 could not use excess presentence custody credit to reduce the term of their
parole. There it was argued that declining to allow persons resentenced under
Proposition 47 to use excess credits to reduce the length of parole violated equal
protection because section 2900.5 generally declares that excess presentence credits may
be used to reduce a period of parole. Noting the differences in the language used in
sections 1170.18 and 2900.5, the different purposes underlying each statute, the court
held “persons resentenced under Proposition 47 are not situated similarly to those
sentenced under section 2900.5.” (People v. Morales, supra, 63 Cal.4th at p.408.)
              As discussed above, under section 3000, subdivision (a)(1), persons on
PRCS have not completed their sentence and thus are not similarly situated to persons no
longer in prison or on either parole or PRCS. Consequently, Proposition 47 does not
subject similarly situated groups to different treatment.
              In support of his ex post facto claim, defendant argues “[t]he effect of the
trial court’s” ruling “was to impose an additional punishment” on him. Not so.

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              Both the United States and California Constitutions’ prohibition of ex post
facto laws “‘are “aimed at laws that ‘retroactively alter the definition of crimes or
increase the punishment for criminal acts.’”’” (People v. Alford (2007) 42 Cal.4th 749,
755.) Here, the issue is whether section 1170.18, subdivision (d)’s requirement that a
petitioner currently serving a sentence be placed on parole constitutes an increase in
punishment. “In making this determination we consider ‘whether the Legislature
intended the provision to constitute punishment and, if not, whether the provision is so
punitive in nature or effect that it must be found to constitute punishment despite the
Legislature’s contrary intent.’” (People v. Alford, supra, 42 Cal.4th at p. 755.) Although
section 1170.18 was enacted by the electorate as part of Proposition 47, construction of
the statute is subject to the same rules governing our interpretation of laws enacted by the
Legislature. (People v. Rizo (2000) 22 Cal.4th 681, 685.)
              Proposition 47 was not intended to be punitive. The purposes underlying it
included ameliorating the punishment for certain drug-related and theft-related offenses
considered to be “‘nonserious, nonviolent crimes’” by reducing convictions from felonies
to misdemeanors and “‘maximiz[ing] alternatives for’” persons convicted of these
offenses. (See Historical and Statutory Notes, 32A pt. 3, West’s Ann. Gov. Code (2016
supp.) foll. § 7599, p. 163.)
              Nor do we find the nature or effect of section 1170.18, subdivision (d),
triggers ex post facto consideration. “The ex post facto clause does not prohibit all
increased burdens; it only prohibits more burdensome punishment.” (People v. Acuna
(2000) 77 Cal.App.4th 1056, 1059; California Dept. of Corrections v. Morales (1995)
514 U.S. 499, 509 [115 S.Ct. 1597, 131 L.Ed.2d 588] [“the question of what legislative
adjustments ‘will be held to be of sufficient moment to transgress the constitutional
prohibition’ must be a matter of ‘degree’”].) An adjustment that “creates only the most
speculative and attenuated possibility of producing the prohibited effect of increasing the
measure of punishment for covered crimes” does not violate the ex post facto clause.

                                              8
(California Dept. of Corrections v. Morales, supra, 514 U.S. at p. 509.) Defendant was
on PRCS when he filed his petition. The differences between PRCS and parole primarily
concern what agency has jurisdiction over the supervised individual (county probation
department or the Department of Corrections and Rehabilitation), and where that person
could be incarcerated in the event he or she violated the program’s conditions (county jail
or state prison). (§§ 3451, subd. (c)(1), 3452, subd. (b)(3), 3454, 3455 & 3457; People v.
Espinoza, supra, 226 Cal.App.4th at p. 639.) Thus, whether on PRCS or parole,
defendant was subject to supervision and to the prospect of incarceration if he violated
the terms of the correctional program.
              Again, we reject defendant’s reliance on the dicta in Espinoza, stating
PRCS was not punishment. (People v. Espinoza, supra, 226 Cal.App.4th at p. 640.) In
People v. Nuckles (2013) 56 Cal.4th 601, the Supreme Court recognized parole
constituted a form of punishment, noting that under section 3000, subdivision (a)(1),
“‘[P]arolees are on the “continuum” of state-imposed punishments,’” “accruing directly
from the underlying conviction.” (People v. Nuckles, supra, 56 Cal.4th at p. 609.) As
previously mentioned, section 3000, subdivision (a)(1), refers to both parole and PRCS.
Thus, we conclude one subject to PRCS is also on the “‘“continuum” of state-imposed
punishments.’” (People v. Nuckles, supra, 56 Cal.4th at p. 609.) The trial court’s order
placing defendant on parole, while a burden, did not constitute more burdensome
punishment.
              Consequently, we conclude the trial court did not violate defendant’s
constitutional rights by ordering him to serve the remaining period of his supervised
release on parole.


D. The Restitution and Parole Revocation Fines
              Finally, defendant contends that in resentencing him, the trial court erred by
failing to reduce the $240 minimum felony fines imposed on him under sections 1202.4

                                             9
and 1202.45 to the minimum fines allowable to one convicted of a misdemeanor.
Defendant did not raise this issue at the time of resentencing. We conclude his failure to
request the trial court to reduce the amount of the fines constituted a waiver of the issue.
              Section 1202.4 declares that “[i]n every case where a person is convicted of
a crime, the court shall impose a separate and additional restitution fine.” (§ 1202.4,
subd. (b).) Within certain bounds, the court is afforded the discretion to set the amount of
the fine. (§ 1202.4, subd. (b)(1).) In 2012, the range for a felony conviction fine was
between $240 and $10,000, while the range for a misdemeanor conviction fine was
between $120 and $1,000. (Ibid.) Section 1202.45 further provides for the imposition of
an additional fine in the same amount “[i]n every case where a person is convicted of a
crime and his or her sentence includes a period of parole” (§ 1202.45, subd. (a)), or “is
subject to . . . postrelease community supervision” (§ 1202.45, subd. (b)).
              “[T]o encourage prompt detection and correction of error, and to reduce the
number of unnecessary appellate claims” (People v. Scott (1994) 9 Cal.4th 331, 351),
unless the trial court imposes an “‘unauthorized sentence’” (id. at p. 354), i.e., one that
“could not lawfully be imposed under any circumstance in the particular case” (ibid.), the
“lack of a timely and meaningful objection forfeits or waives the claim” (id. at p. 351).
This rule applies to appellate claims challenging the amount of restitution. (People v.
Garcia (2010) 185 Cal.App.4th 1203, 1218.)
              Since the fines imposed on defendant were within the allowable range for a
misdemeanor conviction, they were not “unauthorized.” Consequently, by failing to raise
the amount of the fines in his petition for resentencing or at the hearing on the petition,
we conclude defendant waived any objection to the amount of the fines originally
imposed on him when he pled guilty to violating section 496.




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                                        III
                                  DISPOSITION


            The postjudgment order is affirmed.




                                              MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.




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