Filed 3/21/16 P. v. Reyes CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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publication or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B265038
                                                                            (Super. Ct. No. 2010039576)
     Plaintiff and Respondent,                                                   (Ventura County)

v.

ANTHONY ROBERT REYES,

     Defendant and Appellant.



                   Anthony Robert Reyes appeals from an order recalling his felony
sentence, resentencing him to a misdemeanor, and placing him on misdemeanor parole
for one year. The order was entered pursuant to Penal Code section 1170.18, enacted
by Proposition 47.1 Appellant contends that he is entitled to have the one-year period
of misdemeanor parole reduced by his excess custody credits, i.e., the number of days
by which his time served in prison exceeds his misdemeanor sentence. He also
contends that, in violation of subdivision (e) of section 1170.18, the trial court
resentenced him to a term longer than his original sentence. We affirm.
                                   Factual and Procedural Background

                   In March 2011 appellant pleaded guilty to felony receiving stolen
property. (§ 496, subd. (a).) He admitted one prior prison term enhancement.

1
    Unless otherwise stated, all statutory references are to the Penal Code.
(§ 667.5, subd. (b).) He was sentenced to prison for three years: two years for
receiving stolen property plus one year for the prior prison term enhancement. The
trial court suspended execution of the sentence and placed appellant on formal
probation for 36 months on condition that he serve 260 days in county jail.
               In July 2011 appellant admitted probation violations. The trial court
terminated probation and ordered into effect the previously suspended three-year
prison sentence. In September 2012 appellant was released from prison on postrelease
community supervision (PRCS) for a period not exceeding three years.
               In April 2015 appellant filed a petition to recall his sentence and
resentence him to a misdemeanor pursuant to subdivisions (a) and (b) of section
1170.18. The trial court granted the petition and resentenced him to 364 days in
county jail. The court terminated PRCS, gave appellant credit for time served of 364
days, and placed him on misdemeanor parole for one year pursuant to subdivision (d)
of section 1170.18.
                                       Proposition 47
               "On November 4, 2014, the voters enacted Proposition 47, 'the Safe
Neighborhoods and Schools Act' . . . , which went into effect the next day. (Cal.
Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085,
1089.) Before the passage of Proposition 47, receiving stolen property was punishable
either as a felony or a misdemeanor. Proposition 47 amended section 496, subdivision
(a) to make receiving stolen property punishable only as a misdemeanor if the value of
the stolen property does not exceed $950 and the defendant has not previously been
convicted of specified serious felonies.
               Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a)
of section 1170.18 permits persons who are "currently serving a sentence for a
conviction . . . of a felony or felonies who would have been guilty of a misdemeanor
under [Proposition 47] . . . [to] petition for a recall of sentence . . . [and] to request
resentencing" under Proposition 47. If the petitioner satisfies the criteria in


                                               2
subdivision (a), subdivision (b) provides that "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." Subdivision (d) provides, "A person who is
resentenced . . . 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."
                     The One-Year Period of Misdemeanor Parole
                       Is Not Reduced By Excess Custody Credits
              Appellant contends that, against the one-year period of misdemeanor
parole, he is entitled to credit for the number of days by which his time served in
prison exceeds his misdemeanor sentence.2 Such credits are referred to as "Sosa
credits." In In re Sosa (1980) 102 Cal.App.3d 1002, the court held that presentence
custody credits in excess of a prisoner's term of imprisonment reduce the prisoner's
time on parole.
              "[O]ur 'task is simply to interpret and apply the initiative's language so as
to effectuate the electorate's intent.' [Citation.]" (Robert L. v. Superior Court (2003)
30 Cal.4th 894, 901.) "'[W]e apply the same principles that govern statutory


2
  This issue is before the California Supreme Court in People v. Morales, no. S228030,
review granted Aug. 26, 2015. (See Supreme Ct. News Release dated Oct. 16, 2015,
p. 2, http://www.courts.ca.gov/documents/ws101215.pdf [Morales "presents the
following issue: Can excess custody credits be used to reduce or eliminate the one-
year parole period required by Penal Code section 1170.18, subdivision (d), upon
resentencing under Proposition 47?].) The Supreme Court has granted review in two
cases decided by this court that involve the same issue: People v. McCoy, no.
S229296, review granted Oct. 14, 2015; and People v. Hickman, no. S227964, review
granted Aug. 26, 2015.)




                                             3
construction. [Citation.] Thus, "we turn first to the language of the statute, giving the
words their ordinary meaning." [Citation.] The statutory language must also be
construed in the context of the statute as a whole and the overall statutory scheme [in
light of the electorate's intent]. When the language is ambiguous, "we refer to other
indicia of the voters' intent, particularly the analyses and arguments contained in the
official ballot pamphlet." [Citation.]' [Citation.]" (Id., at pp. 900-901.)
                The language of section 1170.18, subdivision (d) is unambiguous. It
provides, "A person who is resentenced . . . 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 . . . releases the person from parole." The phrase
"shall be given credit for time served and shall be subject to parole for one year"
indicates that, irrespective of the amount of credit for time served on the felony
offense before it was reduced to a misdemeanor, the petitioner shall be subject to
parole for one year. Otherwise, the phrase would read, "shall be given credit for time
served and shall be subject to parole for one year unless credit for time served reduces
the one-year parole period." Instead, the "unless" clause states, "unless the court, in
its discretion . . . releases the person from parole." The statutory language makes clear
that the only exception to the one-year parole requirement is if the court releases the
person from that requirement. "'[T]he existence of specific exceptions does not imply
that others exist. The proper rule of statutory construction is that the statement of
limited exceptions excludes others, and therefore the judiciary has no power to add
additional exceptions; the enumeration of specific exceptions precludes implying
others.' [Citation.]" (In re James H. (2007) 154 Cal.App.4th 1078, 1083-1084; see
also Building Profit Corp. v. Mortgage & Realty Trust (1995) 36 Cal.App.4th 683, 689
["'When a statute contains an exception to a general rule laid down therein, that
exception is strictly construed [citation] [and] [o]ther exceptions are necessarily
excluded'"].)




                                             4
              If the language of section 1170.18, subdivision (d) were ambiguous, the
ambiguity would be cured by the Legislative Analyst's comments in the official ballot
pamphlet. The Legislative Analyst informed the voters: "Offenders who are
resentenced would be required to be on state parole for one year, unless the judge
chooses to remove that requirement." (Voter Information Guide, Gen. Elec. (Nov. 4,
2014), Prop. 47, Analysis by Legislative Analyst, p. 36.) Any voter who read this
statement would have assumed that a one-year period of parole is mandatory unless
the judge reduces or eliminates it. "The Legislative Analyst's comments, like other
materials presented to the voters, 'may be helpful but are not conclusive in determining
the probable meaning of initiative language.' [Citation.] Thus, when other statements
in the election materials contradict the Legislative Analyst's comments we do not
automatically assume that the latter accurately reflects the voters' understanding.
[Citation.]" (San Francisco Taxpayers Assn. v. Bd. of Supervisors (1992) 2 Cal.4th
571, 580.) Nothing in the election materials for Proposition 47 contradicts the
Legislative Analyst's conclusion that a person resentenced to a misdemeanor "would
be required to be on state parole for one year." This is the only statement in the
election materials concerning the one-year misdemeanor parole period. (See People v.
Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 82 [Legislative Analyst's comment
"eliminates doubt" as to correct interpretation of ballot proposition].)3
                           Appellant's Resentencing Did Not
                       Violate Subdivision (e) of Section 1170.18
              Subdivision (e) of section 1170.18 provides, "Under no circumstances
may resentencing under this section result in the imposition of a term longer than the
original sentence." (Italics added.) Appellant construes "term" as including a

3
 In his reply brief appellant relies on People v. Armogeda, S230374, even though he
acknowledges that the Supreme Court granted review in that case on December 9,
2015. Appellant argues, "While Armogeda is not controlling, the reasoning of the
opinion is sound." This argument is improper. Armogeda may not be cited as an
authority. (Cal. Rules of Court, rules 8.115(a), 8.1105(e)(1).)

                                             5
mandatory period of misdemeanor parole imposed pursuant to subdivision (d) upon
resentencing to a misdemeanor. Thus, appellant argues that his misdemeanor parole
cannot extend beyond the end of his original sentence, which he claims to be the date
that PRCS was scheduled to expire. (See § 3000, subd. (a)(1) ["A sentence resulting
in imprisonment in the state prison . . . shall include a period of parole supervision or
postrelease community supervision"]; In re Roberts (2005) 36 Cal.4th 575, 590 ["a
sentence contemplates a period of parole, which in that respect is related to the
sentence"].)
               At the hearing on appellant's petition to recall his felony sentence, his
counsel stated that PRCS was due to expire in September 2015. The People did not
dispute the accuracy of counsel's statement. Appellant contends that his resentencing
violated subdivision (e) of section 1170.18 because the one-year period of
misdemeanor parole "is scheduled to end on April 21, 2016, seven months past the end
of appellant's original felony sentence," i.e., the date in September 2015 when PRCS
was due to expire.
               Assuming that appellant's original sentence ended in September 2015, he
was not resentenced to a "term" longer than his original sentence within the meaning
of section 1170.18, subdivision (e). The subdivision must be read together with the
one-year misdemeanor parole requirement of subdivision (d). "It is a cardinal rule of
construction that the several parts of a statute must be read together and harmonized,
when reasonably possible, so as to . . . give effect to the intent of the Legislature [or
the electorate in the case of an initiative statute such as section 1170.18]." (Ingram v.
Justice Court for Lake Valley Judicial Dist. of El Dorado County (1968) 69 Cal.2d
832, 839.) As discussed in the preceding part of this opinion, the electorate intended
that a person resentenced to a misdemeanor be placed on misdemeanor parole for one
year unless the court reduces the one-year period or eliminates it. Appellant's
construction of subdivision (e) would nullify this requirement in many cases. We
therefore construe the word "term" as used in subdivision (e) as not including a period


                                             6
of misdemeanor parole imposed pursuant to subdivision (d). "Term" means the jail
term imposed upon resentencing.
                                     Disposition
             The order recalling appellant's felony sentence, resentencing him to a
misdemeanor, and placing him on misdemeanor parole for one year is affirmed.
             NOT TO BE PUBLISHED.



                                                      YEGAN, J.


We concur:



             GILBERT, P. J.



             PERREN, J.




                                          7
                                  Bruce A. Young, Judge
                             Superior Court County of Ventura
                           ______________________________


      Melissa L. Camacho-Cheung, 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, Susan
Sullivan Winters, Supervising Deputy Attorney General, Mary Sanchez, Deputy
Attorney General, for Plaintiff and Respondent.
