Filed 12/7/15 P. v. Eggen 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051158

         v.                                                            (Super. Ct. No. 12HF3510)

ERIC MARK EGGEN,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie Hix, Commissioner. Affirmed in part, reversed in part and remanded.
                   Steven J. Carroll, 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, and Barry Carlton,
Deputy Attorney General, for Plaintiff and Respondent.
              Eric Mark Eggen appeals an order granting his petition for resentencing
under Proposition 47. Although he approves of the trial court’s reduction of his felony
conviction to a misdemeanor, he contends the court erred in subjecting him to parole.
We disagree. However, we do agree with appellant that his excess custody credits should
be counted toward his parole period and his eligible fines. Therefore, we affirm in part,
reverse in part and remand the matter for further proceedings.
                      FACTUAL AND PROCEDURAL BACKROUND
              In 2013, appellant pleaded guilty to felony drug possession and admitted
having suffered a prior strike conviction and served a prior prison term. (Health & Saf.
Code, §§ 11377, subd. (a); Pen. Code, §§ 667, subds. (d)-(e)(2), 1170.12, subds. (b)-
(c)(2), 667.5, subd. (b).)1 As part of the plea agreement, the trial court struck appellant’s
priors and sentenced him to 16 months in prison. It also ordered him to register as a
narcotics offender.
              Following his release from prison, appellant was placed on post release
community supervision (PRCS). In late 2014, he filed a petition for resentencing under
section 1170.18, which was added to the Penal Code pursuant to Proposition 47. The
trial court reduced appellant’s felony conviction to a misdemeanor and resentenced him
to 365 days in jail. It also placed appellant on parole for a period of one year.
                                             DISCUSSION
              Appellant contends the court erred in the first instance by subjecting him to
parole, and then it compounded that error by failing to reduce the length of his parole and
the amount of his eligible fines by his excess custody credits, i.e., the difference between
the amount of custody credit he had on his original sentence and the term he received on
resentencing. Appellant also contends the court erred in ordering him to register as a




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


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narcotics offender. Although we find appellant was subject to parole upon resentencing,
we agree with his other claims.
                  With respect to the imposition of parole, Proposition 47 draws a distinction
between defendants who are currently serving their original sentence and those who have
already completed their sentence. Whereas the law subjects defendants in the former
category to one year of parole (§ 1170.18, subds. (a)-(d)), it does not require parole for
defendants in the latter category (id., at subd. (f)).2 Proposition 47 also states that anyone
who is resentenced under its provisions “shall be given credit for time served” and that
nothing in the law “is intended to diminish or abrogate any rights or remedies otherwise
available to the petitioner or applicant.” (§ 1170.18, subds. (d) & (m)).
                  Although these provisions seem straightforward, they have generated a rift
in the Courts of Appeal regarding the issues presented in this appeal. While appellant’s
appeal was pending, this court filed People v. Morales (2015) 238 Cal.App.4th 42
(Morales), which amounted to a split decision for defendants. Morales held inmates like
appellant, who are on PRCS at the time they seek Proposition 47 relief, are still serving
their underlying sentence and are therefore subject to parole upon resentencing.




         2          Section 1170.18 provides in pertinent part:
                    “(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act
been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the
judgment of conviction in his or her case to request resentencing . . . .
                    “(b) Upon receiving a petition under subdivision (a), the court shall determine whether the
petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), 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.
                    “ [¶] . . . [¶]
                    “(d) 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. . . .
                    “[¶] . . . [¶]
                    “(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a
felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time
of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case
to have the felony conviction or convictions designated as misdemeanors.” (Italics added.)


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However, they are entitled to have their excess custody credits counted toward their
period of parole.
                  On the heels of Morales, the trial court issued an order modifying
appellant’s sentence. Among other things, the court reduced the length of appellant’s
parole period to account for his excess custody credits. However, a few weeks later, the
California Supreme Court granted review of Morales (S228030), as well as People v.
Hickman (2015) 237 Cal.App.4th 984 (Hickman), a decision from the Second District
which reached the opposite conclusion from Morales on the credits issue (S227964). The
split then reemerged when the Second District reaffirmed the holding of Hickman in
People v. McCoy (2015) 239 Cal.App.4th 431, review granted Oct. 14, 2015, S229296,
and this court reaffirmed the holding of Morales in People v. Armogeda (2015) 240
Cal.App.4th 1039 (Armogeda).
                  Based on the foregoing, it is apparent the California Supreme Court is
going to speak to the issues presented in this appeal. And when it does, its ruling will be
dispositive of those issues. In the meantime, we still have to decide the proper resolution
of appellant’s case. While we salute the trial court’s initiative in modifying appellant’s
sentence to comport with Morales, we believe the court lacked jurisdiction to make the
modification because this appeal was already pending at that time. (People v.
Scarbrough (2015) 240 Cal.App.4th 916; People v. Awad (2015) 238 Cal.App.4th 215.)
The modification order is therefore void. (Ibid.)3
                  Nevertheless, we continue to adhere to the position this court originally
expounded in Morales and recently reaffirmed in Armogeda that defendants seeking
resentencing under Proposition 47 are subject to parole if they are on PRCS, but the
length of their parole should be reduced by their excess custody credits. (Armogeda,

         3         Although section 1237.1 gives trial courts concurrent jurisdiction to correct errors involving the
calculation of presentence credits while an appeal is pending, that section applies only to mathematical or clerical
mistakes, not substantive issues like the ones involved in this case. (People v. Delgado (2012) 210 Cal.App.4th
761.)


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supra, 240 Cal.App.4th at pp. 1044-1050.) In addition, those credits should also be used
to reduce the amount of the defendant’s eligible fines. (Id. at pp. 1047-1050.) Therefore,
the trial court was remiss for failing to apply appellant’s excess custody credits in its
original resentencing decision. As the Attorney General concedes, the trial court also
erred in requiring appellant to register as a narcotics offender because he was not
convicted of an offense to which the registration requirement applies. (See Health & Saf.
Code, § 11590.)
                                       DISPOSITION
              The trial court’s modification order filed on August 5, 2015 is void. The
court’s original resentencing order is affirmed except to the extent the court failed to
consider appellant’s excess custody credits in determining the length of his parole and the
amount of his eligible fines. The matter is remanded with directions for the court to
apply appellant’s excess custody credits to his fines and parole period and to strike his
narcotics registration requirement.




                                                   BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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