Filed 2/2/16 P. v. Ming 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication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. B263610
                                                                          (Super. Ct. No. 2012013475)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JASON WILLIAM MING,

     Defendant and Appellant.



                   Appellant Jason William Ming 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 the trial court erred by resentencing him as a
misdemeanant under subdivision (b) rather than designating his conviction as a
misdemeanor under subdivision (f) and, in the alternative, that he is entitled to have the
one-year period of misdemeanor parole and his fines and fees reduced by his “excess
custody credits” on the felony commitment offense. We affirm and order correction of a
minute order.




         1
             All statutory references are to the Penal Code.
                     FACTS AND PROCEDURAL BACKGROUND
              Appellant pled guilty to petty theft with a prior (§ 666, subd. (b)) and
admitted both a strike and a prison prior allegation (§§ 667, subds. (c)(1), (e)(1), 1170.12,
subds. (a)(1), (c)(1), 667.5, subd. (b)). He was sentenced to prison for two years and
eight months followed by a three-year parole term.2
              After being released from custody and placed on parole, appellant applied
to have his felony conviction designated a misdemeanor pursuant to subdivision (f) of
section 1170.18. The trial court found that appellant was ineligible under subdivision (f)
because he was on parole and therefore still serving his sentence. Instead, the trial court
resentenced appellant as a misdemeanant under subdivision (b). It “reduc[ed] the
charge . . . , which is presently a 666(b), to a 484 by virtue of the provisions of
Proposition 47” and “order[ed] [appellant] to serve 180 days on that sentence,” which
appellant had already satisfied.
              Appellant argued that to the extent the 783 days he had served in prison for
his felony conviction exceeded the 180-day misdemeanor term to which he was
resentenced, these “excess custody credits” should be deducted from any misdemeanor
parole term. The trial court disagreed, imposing the full one year of misdemeanor parole
under subdivision (d). In addition, it stated that “any excess fines and fee balances in this
case are deemed satisfied by his extra credits.”
                                       DISCUSSION
                            Completion of Appellant’s Sentence
              Appellant contends that because he had been released on parole when he
applied for Proposition 47 relief, he had “completed his . . . sentence” (§ 1170.18, subd.
(f)) and was not subject to misdemeanor parole. We disagree. A felony sentence
“include[s] a period of parole supervision or postrelease community supervision.”
(§ 3000, subd. (a)(1), italics added.) At sentencing the trial court must inform the

       2
       In his opening brief, appellant asserts that he was “placed on Postrelease
Community Supervision (PRCS).” The reporter’s transcript reflects that the trial court
imposed parole, not PRCS, and that both appellant and defense counsel understood this.
                                              2
defendant that parole is being imposed “as part of the sentence after expiration of the
term.” (§ 1170, subd. (c), italics added.) Appellant’s construction of section 1170.18 is
untenable.
                      Custody Credits to Reduce Misdemeanor Parole
               Appellant alternatively contends that, against the one-year period of
misdemeanor parole, he is entitled to “excess custody credits” for the number of days by
which his time served in prison exceeded his misdemeanor sentence.3 Such credits are
referred to as “Sosa credits.” (See In re Sosa (1980) 102 Cal.App.3d 1002 [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 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]. [Citation.] 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

       3
        This issue is before the California Supreme Court in People v. Morales, No.
S228030, review granted Aug. 26, 2015. 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
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’ ”].)
              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. Board 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

                                               4
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].)
                                      Equal Protection
               Appellant contends that our interpretation violates equal protection because
felony offenders sentenced to state prison who are not eligible for Proposition 47 relief
can use Sosa credits to reduce their parole term. To establish an equal protection claim,
he must show “that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner. [Citation.]” (In re Eric J. (1979) 25
Cal.3d 522, 530.)
               To the extent the two groups are similarly situated, the non-serious,
nonviolent offenders eligible to be resentenced under Proposition 47 are treated the same
as the serious or violent felony offenders who are ineligible for such relief. Both groups
are entitled to Sosa credits. There is no unequal treatment.
               Once an eligible offender chooses to avail himself of Proposition 47
resentencing, however, he is no longer similarly situated to an offender who cannot have
his sentence so reduced. Proposition 47 resentencing is essentially a contractual
arrangement. An offender agrees to subject himself to a one-year parole term in
exchange for having his felony conviction reclassified as a misdemeanor and, if he files
his petition early enough, spending less time in physical custody. The voters agree to
accept the risks that early release and reclassification entail in exchange for “sav[ing]
significant state corrections dollars on an annual basis.” (Prop. 47, § 3, subd. (6).) This
agreement benefits both parties. As the Sosa court acknowledged, “parole is intended to
assist the reintegration of the offender into society, both for his benefit and for the public
safety during the critical period immediately following incarceration [citation]; and to
cancel that valuable program as a tradeoff for presentence confinement deprives both the
offender and the public of a potentially valuable service.” (Sosa, supra, 102 Cal.App.3d
at p. 1006.)

                                              5
                Moreover, Sosa credits arose in the context of the Determinate Sentencing
Law, which took effect in 1977. Many offenders who had been serving indeterminate
sentences were resentenced to a determinate period of custody and parole that was less
than the time they had already spent in custody. Applying Sosa credits resulted in their
immediate release without any period of parole or other post-release supervision. (See,
e.g., Sosa.) Given the benefits of post-release supervision and after more than 35 years of
hindsight, the voters enacting Proposition 47 rationally imposed one year of parole on
offenders who chose to be resentenced to a misdemeanor. “Gaps in time and context may
suggest a change in policy rather than differential treatment.” (EJS Properties, LLC v.
City of Toledo (6th Cir. 2012) 698 F.3d 845, 866.)
                          Custody Credits to Reduce Fines and Fees
                Appellant contends that he is entitled to have his excess days in custody
“credited to any fine, including, but not limited to, base fines, on a proportional basis, that
may be imposed.” (§ 2900.5, subd. (a).) In fact, the trial court granted this relief when it
ordered that “any excess fines and fee balances in this case are deemed satisfied by his
extra credits.” Respondent concedes that the relief “may be partly justified” but asserts
that custody credits cannot be used to reduce restitution fines.
                As respondent acknowledges, before 2014 the Penal Code provided that
excess days in custody may be “credited to any fine on a proportional basis, including,
but not limited to, base fines and restitution fines.” (Former § 2900.5, subd. (a), italics
added.) Appellant committed his offense in 2012, when he was entitled to use his excess
custody credits to offset restitution fines. He cannot be prohibited from doing so based
on subsequent changes to the law because “the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause.”
(People v. Souza (2012) 54 Cal.4th 90, 143; see People v. Morris (2015) 242 Cal.App.4th
94, 102-103.)
                         Error in February 20, 2015, Minute Order
                In addition, we observe that Proposition 47 does not vest trial courts with
jurisdiction to resentence offenders for a different offense. Accordingly, the trial court’s

                                               6
statement that it was “reducing the charge . . . , which is presently a [section] 666(b)
[petty theft with a prior], to a [section] 484 [petty theft]” is without effect. The February
20, 2015, minute order should be amended to reflect that appellant was convicted under
section 666, subdivision (b), rather than section 484, subdivision (a).
                                       DISPOSITION
              The clerk of the superior court is directed to modify the abstract of
judgment to reflect that appellant’s conviction and misdemeanor sentence is for petty
theft with a prior under section 666, subdivision (b). The trial court’s 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.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                              7
                                Kevin J. McGee, Judge

                          Superior Court County of Ventura
                         ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy
Public Defender, William Quest, Senior Deputy Public Defender, and Ashley Jones,
Deputy Public Defender, 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, and Mary
Sanchez and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.




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