Filed 7/18/16 P. v. Hamilton CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B266552

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA034537)
         v.

MARQUES HAMILTON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, William
C. Ryan, Judge. Affirmed.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Lance E. Winters, Senior Assistant Attorney General; Mary Sanchez, Deputy
Attorney General; and Carl N. Henry, Deputy Attorney General, for Plaintiff and
Respondent.




                                     _____________________________
       In 1998, defendant Marques Hamilton received a third-strike sentence of 25 years
to life in prison after being convicted of possession of a controlled substance. (See
Health & Saf. Code, § 11350, subd. (a).) After Proposition 47 was passed, Hamilton
filed a petition requesting that his conviction be reduced to a misdemeanor, and that he be
resentenced. (See Pen. Code, § 1170.18.) The court granted the petition, resentencing
Hamilton to 364 days in county jail with credit for time served, and one year of
supervised parole. (See Pen. Code, § 1170.18, subd. (d).)
       On appeal, Hamilton argues the trial court should have applied his excess
presentence custody credits toward his one-year parole period. The Supreme Court
recently addressed this issue in People v. Morales (2016) 63 Cal.4th 399 (Morales),
holding that excess credit for time served does not reduce the one-year parole period
described in section 1170.18, subdivision (d). Because Morales resolves the issue before
us, we affirm.
                              FACTUAL BACKGROUND
       In 1998, the district attorney filed an information against Marques Hamilton
alleging possession of a controlled substance in violation of Health and Safety Code
section 11350, subdivision (a). The information further alleged that Hamilton had two
prior convictions under the Three Strikes law. (See Pen. Code, §§ 667, subds. (a)-(i),
1170.12, subds. (a)-(d).)1 Hamilton was found guilty of the offense, and both priors were
found to be true. The court sentenced Hamilton to 25 years to life in prison.
       On February 23, 2015, Hamilton filed a petition pursuant to Proposition 47
requesting that his third-strike offense be reduced to a misdemeanor, and that he be
resentenced. (See § 1170.18, subd. (a).) Following a hearing, the trial court granted
Hamilton’s petition and reduced his crime to a misdemeanor. The court resentenced
Hamilton to 364 days in jail, awarding 364 days of presentence custody credits. The
court also ordered one year of supervised parole pursuant to section 1170.18, subdivision
(d). Hamilton’s counsel objected to the parole term, asserting that his excess presentence


1      Unless otherwise noted, all further statutory citations are to the Penal Code.

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custody credits should be deducted from the supervised parole period. The trial court
denied the request.
                                      DISCUSSION
       The sole argument Hamilton raises on appeal is that the trial court was required to
apply his excess custody credits toward his one year parole period, resulting in no period
of parole. As discussed in more detail below, the California Supreme Court recently
considered and rejected this same argument in Morales, supra, 63 Cal.4th at pp. 405-406.

          A. Summary of Proposition 47 and Penal Code Section 1170.18
       “On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089 (Rivera).) “Proposition 47 makes certain drug and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors). . . . [¶] Relevant here,
Proposition 47 amended Health and Safety Code section 11350. Prior to that
amendment, possession of the controlled substances designated in subdivision (a) of that
section was a felony. . . . [¶] As amended by Proposition 47, Health and Safety Code
section 11350 now provides that a violation of that section is a misdemeanor,” unless the
defendant has been previously convicted of any felony specified in section 667,
subdivision (e)(2)(C)(iv). (Rivera, supra, 233 Cal.App.4th at pp. 1091-1092.)
       “Proposition 47 also created a new resentencing provision: section 1170.18.”
(Rivera, supra, 233 Cal.App.4th at p. 1092.) Under subdivision (a) of this provision, any
person who is “‘currently serving’ a felony sentence for an offense that is now a
misdemeanor under Proposition 47 may petition for a recall of that sentence and request
resentencing in accordance with the statutes that were added or amended by Proposition
47.” (Ibid.) If the petitioner falls within the category of persons described in subdivision




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(a), subdivision (b) requires the trial court to recall the petitioner’s felony sentence, and
resentence him or her to a misdemeanor “unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (§ 1170.18, subd. (b).) Subdivision (d) further provides that “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.”

           B. The Trial Court Did Not Err in Imposing One Year of Supervised Parole
       Hamilton argues that the trial court was required to apply his “excess custody
credits”―meaning the number of days by which his time served in prison exceeded his
misdemeanor sentence―against the one year period of parole imposed under section
1170.18, subdivision (d), which would have resulted in no period of parole. He relies on
section 2900.5, which provides that: (1) “in all felony and misdemeanor convictions,”
the defendant is entitled to credit for time served; and (2) such credit can be applied
toward “any period of imprisonment” and “any period of . . . parole.” (§ 2900.5, subds.
(a) and (c); see also In re Sosa (1980) 102 Cal.App.3d 1002 [under section 2900.5,
presentence custody credits in excess of a prisoner’s term of imprisonment reduce the
prisoner’s time on parole]; In re Ballard (1981) 115 Cal.App.3d 647, 650 [“section
2900.5 credits may be applied against either or both of the period of incarceration and the
parole period”].)
       During the pendency of this appeal, the California Supreme Court issued Morales,
supra, 63 Cal.4th at p. 399, which addresses―and rejects―the exact claim Hamilton has
raised here. The defendant in Morales had pleaded guilty to felony possession of a
controlled substance. Following the passage of Proposition 47, the “defendant
petitioned the court to have the felony designated as a misdemeanor or, in the alternative,
to reduce the felony conviction to a misdemeanor and resentence him. The court
recalled his sentence, reduced the conviction to a misdemeanor, and imposed a jail




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sentence of time served. Rejecting defendant’s argument that his record did not warrant
parole, it also imposed one year of parole.” (Id. at p. 403.)
       On appeal, the defendant argued that the trial court was required to apply his
excess custody credits toward the one-year parole period set forth in section 1170.18,
subdivision (d). The Court of Appeal agreed, concluding that section 2900.5 required the
trial court to apply any excess custody credits toward the one-year period of parole. The
Supreme Court reversed, concluding that although section 2900.5 ordinarily requires
excess custody credits to be applied toward any period of parole “in the . . . situation of
original sentencing,” the statute does not apply to resentencings conducted under
Proposition 47. (Morales, supra, 63 Cal.4th at p. 405.) The Court explained that “[o]n
its face,” section 1170.18, subdivision (d) requires persons who are resentenced under
Proposition 47 to serve a “one-year parole period subject to the court’s discretion to order
otherwise. [The statute] states that the person shall receive credit for time served and
shall be subject to parole.” (Ibid. [emphasis in original].) The Court further explained
that if, as the Court of Appeal had concluded, section 2900.5 was deemed to apply to
Proposition 47 resentencings, “parole [would] be reduced or eliminated in many of the
cases that section 1170.18 governs. Persons receiving a misdemeanor sentence under
section 1170.18 will have been serving a felony sentence and, therefore, will often have
substantial excess credit for time served. In those cases, if excess credits can reduce or
eliminate the period of parole, the court’s discretion will be curtailed or eliminated.
Thus, the Court of Appeal’s conclusion would undermine the trial court’s discretion in
many cases.” (Ibid.)
       The Supreme Court also noted that even if it “assume[d]” section 1170.18,
subdivision (d)’s “seemingly mandatory . . . language [wa]s ambiguous,” the ballot
materials concerning Proposition 47 had specifically informed voters that “[o]ffenders
who are resentenced would be required to be on state parole for one year, unless the
judge chooses to remove that requirement.’ [Citation.]” (Morales, supra, 63
Cal.4th at p. 407.) In the Court’s view, this “easy to understand and entirely
unambiguous” sentence had “promised voters that offenders would be on parole for one

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year unless the judge deemed it not necessary. Any reasonable voter would have
understood the sentence to mean exactly what it said.” (Ibid.)
       In light of the Supreme Court’s holding in Morales, we affirm the trial court’s
decision to impose the one-year term.2

                                     DISPOSITION
       The judgment is affirmed.


                                                 ZELON, J.
We concur:




       PERLUSS, P. J.                            BLUMENFELD, J.

2       Hamilton additionally argues that section 1170.18’s requirement that resentenced
defendants serve one year of supervised parole irrespective of custody credits violates the
“double jeopardy” and “ex post facto” clauses of the United States and California
Constitutions. Hamilton acknowledges he did not raise these constitutional claims in the
trial court, but contends we may consider the arguments for the first time on appeal
because they involve “pure questions of law.” Even if we were to assume Hamilton has
not forfeited these arguments (see generally In re Jermaine B. (1999) 69 Cal.App.4th
634, 645 [“the California Supreme Court has consistently applied waiver or forfeiture
rules in the context of fundamental constitutional rights”]), we would find no merit in
them. Under Proposition 47’s resentencing provision, Hamilton’s sentence for
possession of a controlled substance was reduced from 25 years to life in prison to 364
days in county jail, with credit for time served, and one year of supervised parole. We
fail to see how this sentence reduction could be construed as a violation of Hamilton’s
double jeopardy rights (see generally People v. Craig (1998) 66 Cal.App.4th 1444, 1448
[double jeopardy clause not violated where “aggregate sentence” imposed “after
successful appeal of a conviction . . . was reduced”]), or otherwise made the punishment
for his offense “more burdensome” than it was when he committed the offense. (See
Collins v. Youngblood (1990) 497 U.S. 37, 42 [“‘any statute which . . . makes more
burdensome the punishment for a crime, after its commission, . . . is prohibited as ex post
facto’”].)

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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