Filed 12/8/15 P. v. Kelley 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051196

         v.                                                            (Super. Ct. No. 11WF2128)

AUSTIN JAMES KELLEY,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie Hix, Temporary Judge. (Pursuant to Cal. Const, art. VI, § 21.) Reversed and
remanded.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
                                             *               *               *
              In October 2011 defendant pleaded guilty to one count of felony possession
of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and one misdemeanor
count of possession of a controlled substance without a prescription (Bus. & Prof. Code,
§ 4060). The court suspended imposition of sentence and instead imposed three years of
formal probation. After multiple probation violations and stints in jail, on April 29, 2013,
the court terminated probation and imposed a prison term of three years. At that time, the
court determined that defendant had 650 days of custody credits. In December 2014,
after the passage of Proposition 47, defendant filed an application to redesignate his
felony conviction a misdemeanor pursuant to Penal Code section 1170.18, subdivision
    1
(f), or, alternatively, to be resentenced pursuant to section 1170.18, subdivision (a). The
court granted defendant’s application pursuant to subdivision (a) and sentenced defendant
to 545 days in county jail on counts 1 and 2. The court credited defendant 545 days in
custody and imposed one year of parole. Defendant appealed and contends the court
                                                                            2
should have applied his excess custody credits against his parole period.
              During the pendency of this appeal, we published People v. Armogeda
(2015) 240 Cal.App.4th 1039, in which we determined that a person resentenced under
section 1170.18, subdivision (a), is entitled to apply excess custody credits against the
one-year parole period. (Armogeda, at p. 1047 [citing § 2900.5].) By failing to apply
defendant’s excess custody credits to his parole period, the court erred. Because we do
not have an adequate record of defendant’s custody credits, however, we will remand to
the trial court to calculate the full amount of defendant’s credits and to apply that amount
to both the jail and parole term.


1
              All further statutory references are to the Penal Code.
2
              It does not appear that defendant’s counsel made this contention in the trial
court. However, the People do not argue for a waiver on appeal, and thus we do not
address the issue.

                                             2
                                      DISPOSITION


              The judgment is reversed. The matter is remanded to the trial court with
instructions to recalculate defendant’s parole period by applying any excess custody
credits to reduce the parole period pursuant to section 2900.5.




                                                 IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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