Filed 6/16/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                               S228030
           v.                        )
                                     )                        Ct.App. 4/3 G051142
JOSUE VARGAS MORALES,                )
                                     )                           Orange County
           Defendant and Appellant.  )                      Super. Ct. No. 13WF3934
____________________________________)


        Proposition 47, an initiative measure the electorate passed in November
2014, reduced certain drug-related and property crimes from felonies to
misdemeanors. The measure also provided that, under certain circumstances, a
person who had received a felony sentence for one of the reduced crimes could be
resentenced and receive a misdemeanor sentence. A person so resentenced is
entitled to credit for time already served. Often the credit for time served will
exceed the new sentence, thus entitling the person to immediate release from
custody.
        Penal Code section 1170.18, subdivision (d), part of the same initiative
measure, provides that a person who has been resentenced under the measure and
given credit for time served “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




                                           1
resentencing order, releases the person from parole.”1 We must decide whether
excess credit for time served can be credited against this parole period, which
could shorten it or reduce it to no parole at all.
       We conclude that credit for time served does not reduce the parole period.
When it voted on Proposition 47, the electorate was informed, and it intended, that
a person who benefitted from the new legislation by receiving a reduced sentence
would be placed on parole for one year after completion of the reduced sentence,
subject to the court‟s discretion to release the person from that parole.
                              I. PROCEDURAL HISTORY
       In March 2014, defendant pleaded guilty to felony possession of heroin, a
controlled substance. The next month, he was sentenced to 16 months in state
prison and given credit for time served, including conduct credits, of 220 days. In
August 2014, he was released to postrelease community supervision for a period
of three years. In November 2014, after the passage of Proposition 47, 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 sentence of time served. Rejecting defendant‟s argument that his
record did not warrant parole, it also imposed one year of parole.
       On appeal, defendant argued that, for two reasons, he should not have been
placed on parole for one year. First, he argued that, because he had already been
released from custody, the trial court should only have reduced the felony to a
misdemeanor and not resentenced him at all. Second, he argued that his excess
custody credits should reduce his parole time. The Court of Appeal disagreed with


1      All further statutory references are to the Penal Code.



                                            2
the first argument. But it agreed with the second, holding that defendant “was
entitled to credit his excess custody time against his parole.” It also agreed with
defendant that excess custody credits could reduce any fines that had been
imposed.
       The Attorney General petitioned for review limited to the question of
whether excess custody credits can reduce the period of parole. The petition for
review did not challenge the holding that excess custody credits can also reduce
any fines. We granted the petition.
                                   II. DISCUSSION
       “On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act . . . .” (People v. Rivera (2015) 233 Cal.App.4th
1085, 1089.) “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).” (Id.
at p. 1091.)
       Proposition 47 also added section 1170.18, concerning persons currently
serving a sentence for a conviction of a crime that the proposition reduced to a
misdemeanor. It permits such a person to “petition for a recall of sentence before
the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with” specified sections that “have been amended or
added by this act.” (§ 1170.18, subd. (a).) If the trial court finds that the person
meets the criteria of subdivision (a), it must recall the sentence and resentence the
person 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).) The court resentenced defendant under this
subdivision.

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       At issue here is the proper interpretation of section 1170.18, subdivision
(d), which provides: “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. Such person is
subject to Section 3000.08 parole supervision by the Department of Corrections
and Rehabilitation and the jurisdiction of the court in the county in which the
parolee is released or resides, or in which an alleged violation of supervision has
occurred, for the purpose of hearing petitions to revoke parole and impose a term
of custody.” (Italics added.) On its face, this language seems to require the one-
year parole period subject to the court‟s discretion to order otherwise. It states that
the person shall receive credit for time served and shall be subject to parole.
       Despite the seemingly mandatory parole requirement (subject to the court‟s
discretion), defendant argues, and the Court of Appeal concluded, that the “credit
for time served” under section 1170.18, subdivision (d), can serve to reduce, or
eliminate, the one-year parole period. If so, parole will 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.
       Defendant and the Court of Appeal rely primarily on the long-established
rule that, in the ordinary situation of original sentencing, excess presentence
credits can reduce any period of parole. (See In re Sosa (1980) 102 Cal.App.3d
1002.) A statute expressly so states. Section 2900.5, subdivision (a), provides that
presentence custody shall be credited towards the sentence. In this regard, section

                                          4
2900.5 is comparable to section 1170.18‟s provision that the person shall receive
credit for time served. But section 2900.5 says far more than does section
1170.18. Section 2900.5, subdivision (a), provides: “If the total number of days
in custody exceeds the number of days of the term of imprisonment to be imposed,
the entire term of imprisonment shall be deemed to have been served.” (Italics
added.) To eliminate any possible ambiguity, subdivision (c) of section 2900.5
provides: “For the purposes of this section, „term of imprisonment‟ includes any
period of imprisonment imposed as a condition of probation or otherwise ordered
by a court in imposing or suspending the imposition of any sentence, 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, by any court, or by any duly authorized
administrative agency.” (Italics added.)
       The legislative purpose behind section 2900.5 “appears to have been to
eliminate the unequal treatment suffered by indigent defendants who, because of
their inability to post bail, served a longer overall confinement than their wealthier
counterparts.” (In re Rojas (1979) 23 Cal.3d 152, 156.)
       As can be seen, section 2900.5 states two things relevant here: (1) the
person is entitled to credit for time served, and (2) the credit can reduce or
eliminate the period of parole. Section 1170.18, subdivision (d), states the first of
these but not the second. Instead, it states the person is to receive credit for time
served and is subject to parole.
       The Court of Appeal stated, “ „We must assume that the voters had in mind
existing law when they enacted Proposition‟ 47.” (Quoting People v. Woodhead
(1987) 43 Cal.3d 1002, 1012.) It concluded from this assumption that the voters
intended to make the law in this regard identical to section 2900.5. But, given the
assumption, the conclusion is far from clear. If we assume the voters had in mind

                                           5
existing law, we may also assume they had in mind that the statute concerning
presentence credit in ordinary cases (i.e., § 2900.5) states both that the person is
entitled to credit for time served and that the credit can reduce or eliminate any
period of parole. We may also assume the voters knew that the purpose behind
that statute was to equalize the treatment of those who could and those who could
not post bail. Because the proposition the voters were considering expressed the
first part but not the second part of section 2900.5‟s rule, and the purpose behind
that rule is irrelevant to resentencing under Proposition 47, no reason appears to
assume the voters believed the proposition would include what it did not state,
namely that credit for time served could reduce the period of parole.
       Moreover, if we can assume voters had in mind existing law, and further
assume the seemingly mandatory statutory language is ambiguous, we can also
make the more realistic assumption that the voters, or at least some of them, read
and were guided by the ballot materials concerning the proposition. “In
construing statutes adopted by the voters, we apply the same principles of
interpretation we apply to statutes enacted by the Legislature.” (People v. Johnson
(2015) 61 Cal.4th 674, 682.) “ „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.” ‟ ” (Robert L. v. Superior Court (2003)
30 Cal.4th 894, 901.)
       The arguments contained in the official ballot pamphlet for Proposition 47
say nothing relevant to this issue, but the analysis does. The Legislative Analyst‟s
analysis of Proposition 47 is four pages long. (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, pp. 34-37.) Included
is a discrete single paragraph captioned, in bold print, “Resentencing of Previously
Convicted Offenders.” (Id. at p. 36.) This paragraph explains in simple language
that certain offenders currently serving felony sentences for the reduced crimes

                                           6
may have their sentences reduced to misdemeanor sentences. It says nothing
about credit for time served. But the last sentence of this paragraph states the
following: “Offenders who are resentenced would be required to be on state
parole for one year, unless the judge chooses to remove that requirement.” (Ibid.)
       This last sentence is easy to understand and entirely unambiguous. It
promised voters that offenders would be on parole for one year unless the judge
deemed it not necessary. Any reasonable voter would have understood the
sentence to mean exactly what it said. The initiative‟s drafters may have included
the parole provision to increase the initiative‟s chances of being enacted. Some
voters who were concerned about simply releasing persons who had committed
what had been felonies might have been reassured by this promise, a reassurance
that might have persuaded them to vote for the proposition. We have no reason to
believe any voter intended to curtail or eliminate the court‟s discretion to impose
parole whenever excess credits exist, and much reason to believe the opposite. “In
the case of a voters‟ initiative statute, . . . we may not properly interpret the
measure in a way that the electorate did not contemplate: the voters should get
what they enacted, not more and not less.” (Hodges v. Superior Court (1999) 21
Cal.4th 109, 114.)
       The Court of Appeal focused on the words “subject to parole” in section
1170.18, subdivision (d). It said: “The statute does not state that the defendant
shall serve a period of parole, only that the defendant shall be subject to parole.
And as noted above, a person subject to parole is entitled to credit excess custody
time against the parole period.” But, given the difference in language and purpose
between sections 1170.18 and 2900.5, as well as the voters‟ likely understanding
of Proposition 47‟s meaning, we do not give these words such a narrow
interpretation. In this context, the most natural meaning of the words “subject to
parole” is that the person is subject to parole rather than some other form of

                                            7
supervision such as postrelease community supervision under the Postrelease
Community Supervision Act of 2011 (§ 3450 et seq.). (See People v. Armogeda
(2015) 233 Cal.App.4th 428, 434.) The words “subject to” also reinforce the
statute‟s grant of discretion to the trial court not to impose parole. The words,
however, do not limit the court‟s discretion whenever excess custody credits exist.
       Defendant and the Court of Appeal also cite another subdivision of section
1170.18 to support their conclusion. Subdivision (m) of section 1170.18 states:
“Nothing in this section is intended to diminish or abrogate any rights or remedies
otherwise available to the petitioner or applicant.” Defendant and the Court of
Appeal assert that this provision means defendant is entitled to credit for time
served exactly as section 2900.5 provides for ordinary sentencing. However, as a
court interpreting identical language in a different statute explained, this language
protects a person “from being forced to choose between filing a petition for a
recall of sentence and pursuing other legal remedies to which they might be
entitled (e.g., petition for habeas corpus).” (People v. Yearwood (2013) 213
Cal.App.4th 161, 178 [discussing § 1170.126, subd. (k)].) It “does not have any
impact in determining if” the rules stated in section 2900.5 operate here even
though section 1170.18 does not mention them. (Yearwood, at p. 178.)
       Amici curiae California Public Defenders Association and the Public
Defender of Ventura County, supporting defendant, argue that one purpose behind
Proposition 47 was to save money, and that reducing or eliminating parole saves
more money than not doing so. Certainly, one purpose was to save money, and
the measure has done so by causing the release of some prisoners and reducing the
number of future felony sentences. But the purpose of saving money does not
mean we should interpret the statute in every way that might maximize any
monetary savings. The statute requires parole (again, subject to the court‟s
discretion to eliminate it), thus indicating the intent to spend whatever that parole

                                          8
costs. Amici curiae also argue that supervising this parole is, or should be, a low
priority. We have no occasion to decide how much priority should be given to
supervising this parole, but, again, the argument does not mean we should
interpret the statute in any way possible to minimize the periods of parole.
       Additionally, amici curiae argue that principles of equal protection mandate
treating those resentenced under Proposition 47 the same as those originally
sentenced under section 2900.5. We disagree. The two situations are different.
The concept of equal treatment under the laws means that persons similarly
situated regarding the legitimate purpose of the law should receive like treatment.
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “ „The 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.‟ [Citations.] This initial inquiry is not whether persons are
similarly situated for all purposes, but „whether they are similarly situated for
purposes of the law challenged.‟ ” (Ibid.; see People v. Mora (2013) 214
Cal.App.4th 1477, 1483.)
       The purpose behind section 2900.5 — to equalize treatment of those who
can and those who cannot post bail — is irrelevant here. Accordingly, persons
resentenced under Proposition 47 are not situated similarly to those sentenced
under section 2900.5. Persons resentenced under Proposition 47 were serving a
proper sentence for a crime society had deemed a felony (or a wobbler) when they
committed it. Proposition 47 did not have to change that sentence at all.
Sentencing changes ameliorating punishment need not be given retroactive effect.
“ „The Legislature properly may specify that such statutes are prospective only, to
assure that penal laws will maintain their desired deterrent effect by carrying out
the original prescribed punishment as written.‟ ” (People v. Floyd (2003) 31
Cal.4th 179, 188, quoting In re Kapperman (1974) 11 Cal.3d 542, 546; see People

                                          9
v. Mora, supra, 214 Cal.App.4th at p. 1484.) “The voters have the same
prerogative.” (Floyd, at p. 188.)
       Here, the voters have given Proposition 47 some retroactive effect. Some
persons originally sentenced as felons can receive the benefit of a favorable
resentencing. But the voters imposed a price for that benefit — parole for one
year unless the court orders otherwise. Equal protection of the laws does not mean
a person can claim the benefits of an ameliorative change in the law but refuse to
accept the price. The voters could rationally conclude that those who receive the
benefit of a new misdemeanor sentence should at least be placed on parole when
released on the reduced sentence. (People v. Mora, supra, 214 Cal.App.4th at pp.
1483-1484.)
       Section 1170.18 ensures that a person resentenced under its provisions may
not receive a longer sentence than the original one. Subdivision (e) of section
1170.18 provides: “Under no circumstances may resentencing under this section
result in the imposition of a term longer that the original sentence.” Here,
defendant was subject to postrelease community supervision for three years. The
resentencing imposed only one year of parole. If defendant preferred the original
three years of community supervision to one year of parole, he could simply not
have petitioned for resentencing. If he now prefers it, he probably could re-
petition the court to go back to the original sentence. Giving him the benefit of
either the original sentence or resentencing under section 1170.18, as he prefers,
does not deny equal protection of the laws.
       The parties have informed us that the trial court, apparently acting in
premature reliance on the Court of Appeal‟s opinion in this case even though it
never became final (see Ng v. Superior Court (1992) 4 Cal.4th 29, 33-34), has
issued an order discharging defendant from parole. The Court of Appeal can
consider any issues regarding that order on remand. Even if this circumstance

                                         10
renders the issue technically moot in this particular case, we exercise our
discretion to decide it because the issue is likely to recur, might otherwise evade
appellate review, and is of continuing public interest. (People v. Cheek (2001) 25
Cal.4th 894, 897-898.)
                                 III. CONCLUSION
       We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with our opinion.

                                                         CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Morales
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 238 Cal.App.4th 42
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228030
Date Filed: June 16, 2016
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Christopher Evans, Temporary Judge*

__________________________________________________________________________________

Counsel:

Christian C. Buckley, under appointment by the Supreme Court, for Defendant and Appellant.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender,
for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on
behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Joshua A. Klein, Deputy State Solicitor General, Charles C. Ragland, Samuel
Siegel, Marvin E. Mizell, Arlene A. Sevidal and Sean M. Rodriquez, Deputy Attorneys General, for
Plaintiff and Respondent.




*Pursuant to California Constitution, article VI, section 21.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christian C. Buckley
Buckley & Buckley
9921 Carmel Mountain Road, #355
San Diego, CA 92129
(858) 538-6054

Joshua A. Klein
Deputy State Solicitor General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3040
