Filed 11/7/13 (unmodified opn. attached)

                         CERTIFIED FOR PARTIAL PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                           DIVISION TWO

THE PEOPLE,
                                                            E055034
        Plaintiff and Respondent,
                                                            (Super.Ct.Nos. INF10000212 &
v.                                                           INF1101571)

EDGAR NUNEZ,                                                ORDER CERTIFYING OPINION
                                                            FOR PARTIAL PUBLICATION
        Defendant and Appellant.                            AND MODIFYING OPINION

                                                            [NO CHANGE IN JUDGEMENT]


THE COURT

       On the court’s own motion, the above-entitled partially published opinion filed October
30, 2013, meets the standard for partial publication as specified in California Rules of Court, rule
8.1105(b) and 8.1110.

        Therefore, the opinion is certified for partial publication, with the exception of part III.A.
of the Analysis of the opinion (located on pages 5-16).

        This modification does not effect a change in the judgment.

        CERTIFIED FOR PARTIAL PUBLICATION
                                                                       McKINSTER
                                                                                                     J.
We concur:

HOLLENHORST
          Acting P. J.

CODRINGTON
                                J.

                                                  1
MAILING LIST FOR CASE: E055034
People v. Edgar Nunez


~
Superior Court Clerk
Riverside County
P.O. Box 431 - Appeals
Riverside, CA 92502



~
Meredith S. White
Deputy Attorney General
P.O. Box 85266
San Diego, CA 92186-5266



~
Ronald Boyer
1563 Solano Ave., #246
Berkeley, CA 94707



~
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101 2396




                                   2
Filed 10/30/13 (unmodified version)


                        CERTIFIED FOR PARTIAL PUBLICATION*


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E055034

v.                                                   (Super.Ct.Nos. INF10000212 &
                                                     INF1101571)
EDGAR NUNEZ,
                                                     OPINION
        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,

Judge. Affirmed with directions.

        Ron Boyer, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S.

White and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.


        * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only
part III.B. of the Analysis of this opinion is certified for publication.

                                            1
                                              I.

                                     INTRODUCTION

       A. Case No. INF10000212 (Case 1)

       On February 3, 2010, an information charged defendant and appellant Edgar

Nunez with one count of possessing a controlled substance for sale, methamphetamine,

under Health and Safety Code section 11378 (count 1); and possessing paraphernalia

used for unlawfully injecting and smoking a controlled substance under Health and

Safety Code section 11364 (count 2). With regard to count 1, the information further

alleged that defendant possessed for sale a substance containing 28.5 grams or more of

methamphetamine, and 57 grams or more of a substance containing methamphetamine,

within the meaning of Penal Code section 1203.073, subdivision (b)(2).1

       On June 4, 2010, defendant pled guilty to all counts.

       The same day, defendant was sentenced to state prison for a total term of two

years. The trial court selected count 1 as the principal count and imposed the middle

term of two years. On count 2, the trial court imposed 180 days to run concurrent to

count 1. The trial court suspended execution of the sentence and placed defendant on

supervised probation for three years with 365 days in local custody. Defendant was

awarded credit for time served for 16 actual days plus 16 days under section 4019, for a

total of 32 days credit.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
       B. Case No. INF1101571 (Case 2)

       On August 10, 2011, an amended information charged defendant with one count

of possessing a controlled substance for sale, methamphetamine, under Health and Safety

Code section 11378 (count 1). With regard to this count, the information alleged that

defendant was previously convicted of a felony violation of section 11378 of the Health

and Safety Code, within the meaning of Health and Safety Code section 11370.2,

subdivision (c). The information also alleged that defendant had one or more prior

convictions for violating the Health and Safety Code, within the meaning of Penal Code

section 1203.07, subdivision (a)(11).

       On October 24, 2011, defendant pled guilty as charged and admitted the prior

conviction enhancements.

       C. Sentencing in Both Cases

              1. Case 1

       On October 24, 2011, because of defendant’s guilty plea in Case 2, the trial court

found defendant to be in violation of probation in Case 1, and executed the sentence of

two years to be served in the Riverside County jail and to run concurrent with the

sentence in Case 2. For the probation violation, defendant was awarded credit for time

served of 292 actual days plus 163 days under section 4019, for a total of 455 days credit.

Counsel objected to this calculation; it was overruled.




                                             3
              2. Case 2

       The trial court sentenced defendant to custody for a total term of five years, to be

served in the Riverside County jail under section 1170, subdivision (h), and to run

concurrent to the sentence in Case 1. The trial court imposed the middle term of two

years on count 1, and three years to run consecutive for the enhancement. The trial court

executed the two-year term for count 1, but suspended execution of the three-year term

granting supervised release under section 1170, subdivision (h)(5). Therefore, defendant

must serve two years in county jail on both cases, then complete his sentence on Case 2

with three years of supervised release.

       In Case 2, defendant was awarded credit for time served of 109 actual days, plus

54 days under section 4019, for a total of 163 days credit. Counsel objected to this

calculation; it was overruled.

       On November 16, 2011, defendant filed a notice of appeal in both cases. On

appeal, defendant claimed that the trial court erred in calculating his section 4019 conduct

credits. In an opinion filed on February 5, 2013, we modified defendant’s conduct

credits. Moreover, in the appeal, the People claimed that the trial court miscalculated

defendant’s actual custody credit in Case 1. We affirmed the trial court’s award of

custody credit in Case 1.




                                             4
       After the issuance of our opinion, defendant filed a petition for rehearing on

February 21, 2013. On March 5, 2013, we granted the petition2 and directed the parties

to file supplemental letter briefs addressing the issue raised in the petition.

       For the reasons set forth post, we hold that we lack statutory authority to reduce

defendant’s mandatory supervised probationary period on appeal.

                                              II.

                                 STATEMENT OF FACTS

       On January 5, 2010, defendant was searched by officers who found a glass pipe

normally used to smoke methamphetamine, which contained burnt residue, and 5.1

ounces of methamphetamine.

       On April 28, 2011, officers found 10.5 grams of methamphetamine, packaging,

and a scale during a search of defendant’s residence.

                                              III.

                                         ANALYSIS

       A. First Opinion

       On appeal, defendant contended that the trial court erred in calculating his section

4019 conduct credits. We agreed with defendant and awarded him additional custody

credits. Moreover, the People contended that the trial court erred in calculating the actual

custody credit in Case 1. We found that the trial court properly calculated the actual



       2Our opinion filed February 5, 2013, has been vacated since we granted
defendant’s petition for rehearing. This opinion will serve as the new opinion.


                                               5
custody credit in Case 1. Since the opinion that discussed these issues was vacated, we

hereby incorporate our opinion here.

       1. Background

       In Case 1, defendant was arrested on January 5, 2010. Defendant was released on

his own recognizance on January 21, 2010; he spent 16 actual days in custody.

Defendant did not serve any additional custody in this case prior to sentencing. On June

4, 2010, the trial court imposed a two-year sentence but stayed its execution on the

condition that defendant be placed on formal probation and serve 365 days in county jail.

Defendant was awarded 16 actual credits and 16 conduct credits, for a total of 32 credits.

Thereafter, defendant was remanded to the custody of the sheriff’s department to serve

the 365 days in jail. Defendant’s custody credits were applied to his 365 days of ordered

custody. Hence, defendant was to serve 333 days.

       At the final sentencing hearing on October 24, 2011, defendant was given 292

actual credits and 163 conduct credits in Case 1.

       In Case 2, defendant was arrested again on April 28, 2011. This was a violation of

the probation terms of Case 1. It appears from the record that defendant was released

after serving seven days of custody.3 On July 15, 2011, after defendant was arraigned, he

was remanded to the custody of the sheriff. He remained there until he was sentenced in


       3 Defendant received a total of 109 actual days of custody in Case 2. From
July 15 to October 24, 2011, defendant earned 102 of those credits. Therefore, it appears
that he must have earned the additional seven credits when he was first arrested in
Case 2. There is nothing in the record providing the exact dates that defendant was in
custody.


                                             6
both cases on October 24, 2011. Defendant was in custody for 102 actual days. In

Case 2, defendant received 109 actual days in custody and 54 conduct credits.

       2. Amendments to Section 4019

       In October 2009, the Legislature passed Senate Bill No. 18. Among other things,

Senate Bill No. 18 revised the accrual rate for conduct credits under section 4019,

effective January 25, 2010. Under the old version of section 4019, defendants earned two

days of conduct credit for every four actual days served in local custody. Under Senate

Bill No. 18, certain defendants were eligible to earn two days of conduct credit for every

two days of actual custody.

       In September 2010, the Legislature amended section 4019 again in Senate Bill

No. 76. Senate Bill No. 76 restored the old version of section 4019. Under Senate Bill

No. 76, defendants serving presentence custody time were eligible for conduct credits at a

rate of two days for every four days of actual custody time. (§ 4019, subd. (f).) Senate

Bill No. 76 also added subdivision (g), which made the new decreased credits applicable

only to defendants who committed crimes on or after the statute’s effective date,

September 28, 2010. (§ 4019, subd. (g).) Therefore, the change to section 4019 was

explicitly prospective. Senate Bill No. 76 also added section 2933, subdivision (e)(1),

which stated:

       “Notwithstanding Section 4019 and subject to the limitations of this subdivision, a

prisoner sentenced to the state prison under Section 1170 for whom the sentence is

executed shall have one day deducted from his or her period of confinement for every




                                             7
day he or she served in a county jail, city jail, industrial farm, or road camp from the date

of arrest until state prison credits . . . .”

        New subdivision (e)(1) to section 2933 reincorporated the same behavioral

standards from section 4019. Effectively, the Legislature granted the beneficial credit

accrual rate to any defendant ultimately sentenced to state prison. Defendants sentenced

to local custody, however, were only eligible for the section 4019 credits, and could not

earn the more beneficial credits under section 2933, subdivision (e)(1).

        In October 2011, sections 4019 and 2933 were amended again. (See Stats. 2011,

ch. 15, § 1 [Assem. Bill No. 109]; hereafter referred to as Realignment.) The Governor

signed Assembly Bill No. 109 in April 2011. Generally, Assembly Bill No. 109 shifted

responsibility for both housing and supervising certain felons from the state to individual

counties. With regard to the portions of the legislation that are relevant to this case,

Realignment amended hundreds of felony offenses, including the offenses for which

defendant was convicted, to be punishable by imprisonment in the county jail under

section 1170, subdivision (h), instead of imprisonment in state prison. As a result, felons

who were eligible to be sentenced under Realignment will serve their terms of

imprisonment in local custody instead of state prison. (§ 1170, subd. (h)(3).)

        With respect to custody credits, Realignment changed the accrual rate of section

4019 credits again. Defendants can now earn two days of credit for every two days

served in custody. (§ 4019, subd. (f).) Section 2933, subdivision (e), was deleted. The

new credits in section 4019 are expressly available only to defendants who committed

their crimes after October 1, 2011. (§ 4019, subd. (h).) The Legislature also amended


                                                8
subdivision (g), to clarify that the changes made to section 4019 under Senate Bill No. 76

still apply to defendants committed to custody for “a crime committed on or after the

effective date of that act,” which was September 28, 2010. (§ 4019, subd. (g).) Finally,

section 4019, subdivision (h), states, in part: “Any days earned by a prisoner prior to

October 1, 2011, shall be calculated at the rate required by the prior law.”

       During the briefing stages of this case, the California Supreme Court decided

People v. Brown (2012) 54 Cal.4th 314 (Brown). Brown held that amendments to section

4019, which took effect in January 2010, operated prospectively, and thus applied to

prisoners who served their presentence time after the amendment took effect. (Brown, at

p. 323.) In reaching this conclusion, the Brown court expressly found that applying

section 4019 prospectively did not violate equal protection. The court reasoned that

prisoners who serve time before and after a conduct credit statute takes effect are not

similarly situated because “the important correctional purposes of a statute authorizing

incentives for good behavior [citation] are not served by rewarding prisoners who served

time before the incentives took effect and thus could not have modified their behavior in

response.” (Brown, at pp. 328-329.)

       3. Actual Days in Custody in Case 1

       The trial court found that defendant had served 292 days in actual custody on

Case 1. The People contend that the trial court erred in awarding 109 days of the 292

days, because defendant served the 109 days concurrently for both Case 1 and Case 2.

The People argue that the 109 days should have been awarded for days in actual custody

only in Case 2. We disagree.


                                             9
       In this case, there is no dispute as to when defendant was in custody. As the

People note, and defendant agrees, defendant served a year as a condition of probation on

Case 1. “The version of section 4019 in effect for the duration of [defendant]’s

postsentence local custody time awarded two days of conduct credit for every two days of

actual credit. Accordingly, when he was released from local custody, [defendant] should

have had 365 days of credit comprised of half actual days, and half conduct credits. This

would put [defendant]’s actual credits around 183 days.”

       Moreover, there is no dispute as to the number of days that defendant was in

custody after the filing of the complaint in Case 2 and petition to revoke probation on

July 7, 2011. The People point out, “[i]t seems [that] the trial court (relying on the

probation department recommendation) added [defendant]’s actual credits from Case 1

(183) to his presentence actual credits from Case 2 (109), and arrived at 292 actual

credits.”

       Defendant agrees that he spent 102 days in custody in both Case 1 and Case 2,

which he served concurrently, after the filing of Case 2.4

       The People, however, argue that the trial court erred in awarding to Case 1, as well

as to Case 2, the 109 days of actual credit that had been served after the filing of the

complaint and petition to revoke probation. The People argue that credit is inappropriate

on both cases because defendant served concurrent terms. The rule, however, is whether


       4 As provided ante, defendant served 102 actual days concurrently for Case 1 and
Case 2. The trial court awarded 109 days in Case 2 because he must have earned the
seven credits when he was first arrested in Case 2.


                                             10
“the custody to be credited is attributable to proceedings related to the same conduct for

which the defendant has been convicted.” (§ 2900.5, subd. (b).)

       Where probation has been revoked for exactly the same conduct that forms the

basis of a new charge, then credit on both the new case and the case in which probation

has been revoked is appropriate. (People v. Johnson (2007) 150 Cal.App.4th 1467,

1485.) For this rule to apply, the prisoner must be held on both the probation revocation

and on the new case. (People v. Pruitt (2008) 161 Cal.App.4th 637, 642, 644, 648-649,

citing People v. Huff (1990) 223 Cal.App.3d 1100 and People v. Williams (1992) 10

Cal.App.4th 827.) Here, defendant was held on both Case 1 and Case 2 for the same

conduct. Therefore, under section 2900.5, subdivision (b), the trial court properly

awarded presentence actual custody credit for 109 days in both cases.

       Notwithstanding, the People contend that “[b]ecause the time [defendant] spent in

custody on Case 2 (109 days) was attributable to the second offense, and he received

concurrent terms, those actual credits should not be counted on Case 1. California

sentencing law applies a merger rule to consecutive sentences, but not to concurrent

sentences.” In support, the People cite to In re Reeves (2005) 35 Cal.4th 765 (Reeves),

People v. Nunez (2008) 167 Cal.App.4th 761 (Nunez), and In re Rojas (1979) 23 Cal.3d

152 (Rojas); the cases, however, do not apply.

       Reeves addressed whether section 2933.1, subdivision (a) (limiting conduct credits

to 15% for a person convicted of a violent felony), applied to a nonviolent felony when a

prisoner was serving sentences on both a violent and a nonviolent felony. (Reeves, supra,

35 Cal.4th at p. 768.) The Supreme Court held that the limitation applies to a sentence


                                            11
for a nonviolent felony that is being served concurrently to a sentence for a violent

felony, but only until the sentence on the violent felony was complete. (Id. at p. 780.)

After that time, on the balance of the sentence on the nonviolent felony, the prisoner was

no longer subject to that 15 percent limit on conduct credits. (Id. at pp. 780-781.) Reeves

dealt with section 2933.1, not section 2900.5. Reeves does not apply because defendant

does not make an argument that he should accrue credits at different rates, and that the

sentences on his two cases are “merged,” as they would be for a consecutive sentence.

Reeves does not support the People’s contention.

       Similarly, Nunez is also inapplicable because it too did not address whether the

defendant in that case should have received presentence credit when held simultaneously

on a probation violation and a new charge. Instead, Nunez addressed whether, when held

simultaneously on a probation violation on a violent felony and on a new nonviolent

offense, the presentence credits on both cases would be subject to the 15 percent limit in

section 2933.1, subdivision (c). (Nunez, supra, 167 Cal.App.4th at pp. 764-765.)

Nothing in Nunez supports the People’s argument here.

       Furthermore, the People’s reliance on Rojas, supra, 23 Cal.3d 152, is misplaced.

In Rojas, the Supreme Court held that section 2900.5 applies to the award of presentence

credit “‘only where’ custody is related to the ‘same conduct for which the defendant has

been convicted.’” (Rojas, at p. 155.) The court did not award credits in Rojas because

“the defendant was simultaneously serving a prison term for a prior unrelated offense.”

(Id. at p. 154, italics added.) In this case, there is no dispute that the revocation of

probation in Case 1 was for exactly the same conduct as the basis of the charge in Case 2.


                                              12
Moreover, defendant was held in custody in both Case 1 and Case 2 from July 15, 2011.

On July 15, 2011, the trial court minutes show, as to both Case 1 and Case 2:

“Remanded to Custody of Riverside Sheriff.”

       The period of time from July 15, 2011, until the sentencing date of October 24,

2011, represents a period of 102 days. The trial court awarded credits for a period of

109 days actual custody.5 Under section 2900.5, subdivision (b), and People v. Johnson,

supra, 150 Cal.App.4th 1467, the trial court properly awarded 109 days actual custody

credit in both Case 1 and Case 2. Therefore, defendant’s actual custody credit of 292

days is affirmed.

       4. Conduct Credits Under Brown in Case 1

       Although both parties agree that defendant is entitled to day-for-day credits under

section 4019, defendant’s conduct credits must be recalculated under Brown, supra, 54

Cal.4th 314. In Brown, the Supreme Court held that the amendment to section 4019

effective January 25, 2010, does not apply to days served in custody prior to that date.

(Brown, at p. 322.) The court held “that prisoners whose custody overlapped the statute’s

operative date (Jan. 25, 2010) earned credit at two different rates.” (Ibid.) And, because

prisoners serving time prior to January 25, 2010, are not similarly situated with prisoners

serving time after that date, the court rejected an equal protection challenge to the

differential treatment of persons serving time prior to January 25, 2010. (Ibid.)




       5   See footnotes 3 and 4, ante.


                                             13
       In Case 1, defendant was arrested on January 5, 2010, and was found at his

sentencing on June 4, 2010, to have served 16 actual days in custody; these days were

served prior to January 25, 2010. Those days of actual custody were prior to January 25,

2010, because defendant had been released on his own recognizance by January 21, 2010.

Defendant remained out of custody until he was remanded on June 4, 2010.

       Under Brown, supra, 54 Cal.4th 314, the credits on 16 days of actual custody

should be calculated under the version of section 4019 effective prior to January 25,

2010. Under that law, on 16 days, defendant would receive two days of conduct credit

for every four actual days served in custody. Therefore, defendant would receive eight

days of conduct credit.

       For the days of custody after January 25, 2010, defendant would receive day-for-

day credit. Subtracting the 16 days from the total of 292 days of actual custody, the

balance is 276 days in actual custody subject to the post-January 25, 2010, rule.

       Accordingly, defendant’s judgment should be modified to reflect (1) 16 days of

actual custody and eight days of conduct credit for days served prior to January 25, 2010;

and (2) 276 days of actual custody and 276 days of conduct credit for the days served

after January 25, 2010, for a total of 576 days.

       5. Conduct Credits Under Brown in Case 2

       As provided in detail ante, defendant was arrested on April 28, 2011 in Case 2.

He was sentenced on October 24, 2011. The trial court awarded defendant 109 actual

days in custody and 54 conduct credits. Defendant contends that he is entitled to

additional conduct credits under section 4019. The People agree.


                                             14
       As discussed ante, Realignment shifted responsibility for both housing and

supervising certain felons from the state to individual counties. As a result, felons, like

defendant, who are eligible to be sentenced under Realignment, will serve their terms of

imprisonment in local custody, instead of state prison. Under the credits provision in

effect at the time defendant committed his crime, defendant would have been entitled to

both section 4019 credits (at a rate of two for four) and section 2933, subdivision (e)(1),

credits (bringing the total conduct credits up to a day for a day) because he received a

state prison sentence and does not appear to have a disqualifying prior conviction.

However, because of Realignment, defendant was sentenced to a “state prison” sentence,

but to be served in county jail. Denying defendant the section 2933, subdivision (e)(1)

credits that he otherwise would receive would violate ex post facto principles.

       Section 4019, subdivision (h), states, in part: “Any days earned by a prisoner prior

to October 1, 2011, shall be calculated at the rate required by the prior law.” Moreover,

denial of the credits would violate the constitutional prohibition against ex post facto laws.

In Weaver v. Graham (1981) 450 U.S. 24, the United States Supreme Court found that

Florida’s application of a change in its conduct credit provisions was an unconstitutional

ex post facto law because it effectively “chang[ed] the legal consequences of acts

completed before its effective date.” (Id. at p. 31.)

       In this case, the application of Realignment to defendant effectively altered the

consequences of his actions completed prior to the change in the law. The change in the

law meant that defendant was housed in a local custody facility instead of state prison.

Had defendant gone to state prison, he would have been entitled to the additional credits


                                             15
under section 2933. Accordingly, under Weaver v. Graham, supra, 450 U.S. 24,

defendant is entitled to an additional 55 days of conduct credit. The judgment in Case 2

should be modified to award a total of 218 credits (109 actual and 109 conduct).6

       B. New Issue: Modification of the Mandatory Supervised Probationary Period

       After we determined that defendant was entitled to additional custody credits, he

filed a petition for rehearing. In the petition, defendant contended that “[a]ny excess days

in custody that have been served by [defendant] should be credited against the term of his

mandatory supervision pursuant to subdivision (h)(5) of section 1170.” We granted

defendant’s petition and requested additional briefing from the parties. We directed the

parties to address the following issue:

       “Should the amount of time defendant was incarcerated, in excess of the period he

would have spent had all custody and conduct credits to which he was entitled been

applied, be deducted from his mandatory probation supervision under Penal Code section

1170, subdivision (h)(5)? Specifically, does the holding of In re Ballard (1981) 115



       6  In his opening brief, defendant, in the alternative, contended that the conduct
credits should be recalculated under the equal protection clause of the United States
Constitution. As discussed ante, the California Supreme Court held that amendments to
section 4019 applied prospectively; hence, to prisoners who served their presentence time
after the amendment took effect. (Brown, supra, 54 Cal.4th at p. 323.) In reaching this
conclusion, the Supreme Court expressly found that applying section 4019 prospectively
did not violate equal protection. The court stated that prisoners who served time before
and after a conduct credit statute takes effect are not similarly situated because “the
important correctional purposes of a statute authorizing incentives for good behavior
[citation] are not served by rewarding prisoners who served time before the incentives
took effect and thus could not have modified their behavior in response.” (Id. at pp. 328-
329.)


                                            16
Cal.App.3d 647 apply to adjust the release from mandatory supervision under Penal Code

section 1170, subdivision (h)(5) as it does to adjust the release from parole?”

       In this case, defendant was sentenced under “Realignment” as set forth in section

1170, subdivision (h). The portion of that section pertaining to “mandatory supervision”

states, in pertinent part:

       “For a term as determined in accordance with the applicable sentencing law, but

suspend execution of a concluding portion of the term selected in the court’s discretion,

during which time the defendant shall be supervised by the county probation officer in

accordance with the terms, conditions, and procedures generally applicable to persons

placed on probation, for the remaining unserved portion of the sentence imposed by the

court. The period of supervision shall be mandatory, and may not be earlier terminated

except by court order. Any proceedings to revoke or modify mandatory supervision

under the subparagraph shall be conducted pursuant to subdivisions (a) and (b) of

Section 1203.2 or Section 1203.3. During the period when the defendant is under such

supervision, unless in actual custody related to the sentence imposed by the court, the

defendant shall be entitled to only actual time credit against the term of imprisonment

imposed by the court.” (§ 1170, subd. (h)(5)(B)(i), italics added.)

       By its own terms, section 1170, subdivision (h)(5)(B)(i), does not permit the

remedy defendant seeks on this appeal. First, the section expressly states that the period

of supervision is mandatory and may not be terminated early unless the court orders so

under section 1203.2, subdivisions (a) and (b) (revoking probation) or section 1203.3

(modifying or terminating probation). There is nothing in the statute permitting


                                            17
modification of the probation period under the circumstances presented here. Should

defendant seek to have the mandatory supervision period shortened, he may file a motion

in the trial court under section 1203.3.

       Moreover, nothing in section 1170, subdivision (h), allows credits to be applied

toward the sentence on mandatory supervision: “During the period when the defendant is

under such supervision, unless in actual custody related to the sentence imposed by the

court, the defendant shall be entitled to only actual time credit against the term of

imprisonment imposed by the court.” (§ 1170, subd. (h)(5)(B)(i), italics added.)

       In this case, defendant accrued an excess of section 4019 credits while in custody;

these credits do not apply to reduce the mandatory supervision under section 1170,

subdivision (h).

       Defendant, however, relies on In re Ballard, supra, 115 Cal.App.3d 647, to

support his position. There, the petitioner sought to have the excess time he spent in

custody credited toward his parole term. The court addressed the issue as follows:

       “A defendant’s prison release date is calculated by reference to the term of

imprisonment assigned by the sentencing court (Pen. Code, § 1170 et seq.) or by the

Board of Prison Terms (Pen. Code, § 1170.2), reduced by any applicable section 2900.5

credits for presentence time actually served, Sage[7] credits for good conduct and

participation while in presentence custody, and credits for good conduct and participation

while in prison (‘section 2931 credits’; Pen. Code, §§ 2930-2932). Should application of


       7   People v. Sage (1980) 26 Cal.3d 498 (Sage).


                                             18
a credit to which the defendant is entitled be delayed until after his prison release date

calculated without regard to the credit, or until so late in his prison term that the credit to

be applied exceeds the amount of time remaining to be served a defendant will obviously

be prejudiced: his actual prison release date will be later than the prison release date to

which the credit, timely applied, would have entitled him. In such situations unless some

adjustment is made, the delay in releasing the person from prison will delay his release

from parole. [¶] Respondent suggests that such an adjustment can be made by deducting

from his parole term the excess of the time petitioner actually spent in prison beyond the

time he should have spent had all credits, including Sage credits, been timely applied.

Petitioner agrees.” (Id. at p. 649, fn. omitted.)

       The court then went on to state that “[d]eductions from the parole term are

expressly authorized in other situations: section 2900.5 credits may be applied against

either or both of the period of incarceration and the parole period (Pen. Code, § 2900.5,

subds. (a), (c); cf. In re Sosa (1980) 102 Cal.App.3d 1002, 1006), and where a

defendant’s prison release date has been delayed by administrative proceedings relevant

to whether section 2931 credits should be denied, and the matter is resolved in his favor,

the delay is deducted from the parole period. (Pen. Code, § 2932, subd. (d).)

Fundamental fairness requires that where misapplication of Sage credits has contributed

to delay a prisoner’s release date, those credits must be used to adjust the parole release

date. Respondent’s suggestion would have this effect. We approve it.” (In re Ballard,

supra, 115 Cal.App.3d at p. 650.)




                                              19
       Defendant claims that we should follow In re Ballard, supra, 115 Cal.App.3d 647,

and “that any excess days in [local] custody that have been served as a result of

[defendant] having completed his term in custody prior to this court’s opinion awarding

him additional credits be credited against the term of his mandatory [probation]

supervision pursuant to subdivision (h)(5) of section 1170.” By analogy, it appears that

fairness would also dictate that where misapplication of section 4019 credits has

contributed to delaying a prisoner’s release date from local custody, those credits must

also be used to adjust the probation release date. We, however, cannot render a decision

by analogy since the statutes pertaining to parole release dates and probation release dates

are different.

       As the People have summarized, in In re Ballard, supra, 115 Cal.App.3d 647,

“[t]he court found [that] it had statutory authority to deduct credits from the term of

parole under Penal Code section 2900.5. (Id. at p. 650.)” Section 2900.5, subdivision

(c), states that a “‘term of imprisonment’” includes “any period of imprisonment imposed

as a condition of probation or otherwise ordered, . . . and also includes any term of

imprisonment, including any period of imprisonment prior to release on parole and any

period of imprisonment and parole, prior to discharge, whether established or fixed by

statute . . . .” Thus, under section 2900.5, credits may be applied to the parole period.

       In this case, however, the reasoning in In re Ballard, supra, 115 Cal.App.3d 647,

does not apply because no statutory authority exists to reduce a defendant’s mandatory

supervision period from probation, not parole, with excess credits. Here, unlike In re

Ballard, defendant was sentenced to local custody and then released on mandatory


                                             20
supervised probation. Section 2900.5 is inapplicable. As provided ante, nothing in

section 1170, subdivision (h), allows for early termination of probation except as

provided under sections 1203.2 and 1203.3. Defendant’s argument to reduce his

mandatory supervision time is, therefore, denied. Although we are sympathetic to

defendant’s argument, it is up to the Legislature to amend the law to allow us to apply

section 4019 credits to reduce a mandatory supervised probationary period.

       Defendant, however, is not without a remedy. As provided ante, defendant can

file a motion in the trial court under section 1203.3 to modify his term of probation. Or,

in the alternative, defendant can file a motion under section 2900.5, subdivision (a), to

allow excess time spent in custody, including section 4019 credits, to be applied toward

base fines and restitution fines at a rate of not less than $30 per day.

                                              IV.

                                       DISPOSITION

       In case No. INF10000212, the trial court is directed to correct the October 24,

2011 minute order and the abstract of judgment filed October 26, 2011, to reflect an

aggregate award of 576 days (consisting of 16 days of actual custody and eight days of

conduct credit for days served prior to January 25, 2010; and 276 days of actual custody

and 276 days of conduct credit for days served after January 25, 2010). Moreover, in

case No. INF1101571, the trial court is directed to correct the October 24, 2011 minute

order to reflect an aggregate award of 218 days (consisting of 109 days of actual custody

and 109 days of conduct credit).




                                              21
       The superior court clerk is directed to forward copies of the corrected minute

orders and abstract of judgment to the appropriate agencies and entities.

       In all other respects, the judgment is affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION




                                                               McKINSTER
                                                                               Acting P. J.

We concur:



MILLER
                          J.



CODRINGTON
                          J.




                                             22
