Filed 12/28/15 P. v. Baltazar 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051161

         v.                                                            (Super. Ct. No. 14WF0043)

JESSE MAURICE BALTAZAR,                                                OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Vickie Hix,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.
                   Theresa Osterman Stevenson, under appointment by the Court of Appeal,
for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General,
for Plaintiff and Respondent.
                                          *                  *                  *
               Jesse Baltazar pleaded guilty in January 2014 to a complaint that month for
felony possession of methamphetamine (former Health & Saf. Code, § 11377, subd. (a)),
and he admitted allegations he suffered a prior strike conviction (Pen. Code, §§ 667,
subds. (d), (e)(2)(A); 1170.12, subds. (b), (c)(1); all further statutory references are to this
code) and recently served a prior prison term (§ 667.5, subd. (b)). At sentencing, the trial
court struck the strike and prison prior allegations, and sentenced defendant to the low
term of 16 months in prison. The court also imposed various fines and fees, and ordered
defendant to register as a controlled substance offender (Health & Saf. Code, § 11590).
               In December 2014, while on postrelease community supervision (PRCS),
defendant petitioned the court to reduce under Proposition 47 his felony conviction to a
misdemeanor, which the court granted (§ 1170.18, subd. (a)) upon recalling defendant’s
sentence. The court resentenced defendant to 365 days in jail, with credit for fully
serving that term, and imposed a one-year parole term. Defendant argues the court erred
in imposing parole because in his view despite his ongoing PRCS term he had
“completed his . . . sentence” (id., subd. (f)), and therefore qualified for simple
redesignation of his conviction as a misdemeanor without a parole term (ibid.), instead of
recall and resentencing for those “currently serving a sentence” for a felony conviction
(id., subd. (a)).
               In the alternative, defendant asserts the trial court abused its discretion by
imposing parole, or erred in failing to apply as “excess credit” against his parole term the
unspecified days over a year he had served under his sentence before it was recalled. He
also argues the trial court sua sponte should have reduced his restitution and supervision
revocation fines to the minimum amounts for a misdemeanor, instead of the felony
minimums the court originally imposed. Finally, he contends, and the Attorney General
concedes, the trial court on remand should strike his obligation to register as a drug
offender because the requirement does not apply to a misdemeanor conviction.



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              During the pendency of this appeal, this court and Division Six of the
Second District Court of Appeal have filed opinions resolving defendant’s main
contentions with varying results. Both courts agree a defendant on PRCS is still serving
his or her “sentence” within the meaning of Proposition 47, and therefore may be subject
to a parole term upon recall and resentencing (§ 1170.18, subd. (a)), but disagree whether
excess credits for time already served apply to reduce any parole term imposed — not
surprisingly, the Supreme Court has granted review in each case. (Compare People v.
Armogeda (2015) 240 Cal.App.4th 1039, review granted Dec. 9, 2015, S230374, and
People v. Morales (2015) 238 Cal.App.4th 42, review granted Aug. 26, 2015, S228030,
with People v. McCoy (2015) 239 Cal.App.4th 431, review granted Oct. 14, 2015,
S229296, and People v. Hickman (2015) 237 Cal.App.4th 984, review granted Aug. 26,
2015, S227964.)
              The Supreme Court will resolve these matters definitively, but in the
meantime we must decide defendant’s case and it remains this court’s unanimous view
that the general rule governing excess custody credits (§ 2900.5) applies under
Proposition 47 to reduce any parole term imposed. We note that in relying on its own
precedent in the very different context of resentencing third strike offenders under
Proposition 36 (People v. Espinosa (2014) 226 Cal.App.4th 635), Division Six of the
Second District has glossed over differences the electorate specified in Proposition 47 for
resentencing “‘low-level’” drug and petty theft offenders (People v. Hoffman (2015)
241 Cal.App.4th 1304, 1311). In particular, unlike in Proposition 36’s resentencing
mechanism (§ 1170.126), the electorate in Proposition 47 expressly directed that
resentenced defendants “shall be given credit for time served” (§ 1170.18, subd. (d)) and
are entitled to “any rights or remedies otherwise available” (§ 1170.18, subd. (m)). In our
view, under this express language the excess custody credits for time served that are
usually available under existing law (§ 2900.5) are available to defendants resentenced
under Proposition 47.

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              Thus, while the trial court did not abuse its discretion in concluding that a
parole term may be appropriate generally for a defendant who has reoffended within five
years of a previous prison term (§ 667.5, subd. (a)), the electorate has specified with the
“rights or remedies otherwise available” (§ 1170.18, subd. (m)) under existing law
(§ 2900.5) that credit for time served “shall be given” (§ 1170.18, subd. (d)) to reduce
any parole imposed.
              We therefore reverse the trial court’s sentencing order and remand for the
court to calculate and apply any excess custody credits to reduce or eliminate defendant’s
parole period. The trial court on remand also must strike defendant’s obligation to
register as a drug offender because the requirement does not apply to a misdemeanor
conviction. (Health & Saf. Code, § 11590.) In contrast, the restitution and supervision
revocation fines the trial court imposed fell within the statutory maximum even for a
misdemeanor (§§ 1202.4, subd. (b)(1), 1202.45, subds. (a), (b)), and by failing to
challenge the amounts imposed on resentencing, defendant has forfeited his appellate
attack on those amounts. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)




                                                  ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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