Filed 1/25/16 P. v. Murillo CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B262280

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. 5PH00073)
         v.

JOSEPH MURILLO,

         Defendant and Appellant.




         APPEAL from a postjudgment order of the Superior Court of Los Angeles
County. Jacqueline H. Lewis, Judge. Reversed.
         Mark R. Feeser, 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, Susan Sullivan Pithey,
Victoria B. Wilson, and Mary Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                            _____________________
       Joseph Murillo appeals from a postjudgment order denying his motion to
terminate and discharge parole and finding him in violation of parole, revoking and
reinstating his parole on condition he serve 150 days in county jail, and setting
January 27, 2016 as his new parole expiration date. Murillo raises several questions
regarding the proper application of Proposition 47, the Safe Neighborhoods and Schools
                            1
Act (Pen. Code, § 1170.18), including whether an individual who has completed his or
her prison sentence and is on parole is “currently serving a sentence” within the meaning
of section 1170.18, subdivision (a), and is therefore subject to the one-year parole period
upon reclassification of his or her felony conviction as a misdemeanor pursuant to
section 1170.18, subdivision (d). We reverse.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Murillo was sentenced to a 32-month state prison term following his 2009
conviction for one felony count of violating Health and Safety Code section 11377,
subdivision (a) (possession of a controlled substance). He was released on parole on
September 18, 2011. Based on his violation of the conditions of parole on several
occasions between 2012 and 2014, Murillo’s parole was extended and scheduled to
expire on February 23, 2016.
       On October 24, 2014 Murillo walked away from a required drug treatment
program, a parole violation potentially subjecting him to a term of imprisonment. He was
arrested on December 31, 2014, and a petition to revoke parole was filed on January 7,
2015, alleging Murillo had absconded from parole supervision. The parole violation
report stated intermediate sanctions had been considered but were deemed inappropriate
because Murillo had violated parole on six occasions since his release in 2011. The
parole agent recommended that Murillo continue on parole with remedial sanctions—
specifically, a return to custody for 135 days. The trial court (Commissioner Robert
Kawahara) found probable cause to support revocation, preliminarily revoked Murillo’s


1
       Statutory references are to this code unless otherwise indicated.
                                             2
supervision, set the matter for arraignment and plea and ordered Murillo taken into
custody pending a further hearing on the petition to revoke parole. At a case setting
conference on January 21, 2015 the revocation hearing was scheduled for
February 10, 2015.
         On January 28, 2015 Murillo petitioned pursuant to Proposition 47 to redesignate
his felony conviction under Health and Safety Code section 11377, subdivision (a), for
possession of a controlled substance. The court (Hon. Wade Olson) found Murillo had
completed his sentence for his conviction and was eligible to have it designated a
misdemeanor conviction within the meaning of section 1170.18, subdivision (g). The
People apparently concurred; the minute order from January 28, 2015 reflects the court
ordered the information deemed amended to allege a misdemeanor offense “on the
People’s motion,” and thereafter designated defendant’s felony conviction a
misdemeanor conviction. No appeal was taken, and no writ review sought from that
order.
         On February 6, 2015, several days prior to the date set for the revocation hearing,
Murillo filed a “motion to terminate and discharge from parole,” arguing that, once the
court granted his Proposition 47 petition, he was no longer subject to parole. The court
(Hon. Jacqueline Lewis) denied the motion on February 10, 2015, stating “both my
position as well as the position of the Los Angeles Superior Court is that for any persons
still on active probation, parole, or post release community supervision, their sentence
has not been completed” within the meaning of section 1170.18, subdivision (f).
Murillo’s Proposition 47 petition, the court continued, was one properly brought under
section 1170.18, subdivision (a), for recall of sentence and resentencing under
section 1170.18, subdivision (b), not under subdivision (f), which applies to “[a] person
who has completed his or her sentence for a conviction . . . of a felony . . . .” An
individual resentenced under section 1170.18, subdivisions (a) and (b), “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.” (§ 1170.18,

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subd. (d).) Because the January 28, 2015 minute order did not state Murillo was being
released from parole, Judge Lewis concluded he was subject to a one-year parole term
from January 28, 2015 through January 27, 2016.
       The court then proceeded to the revocation hearing and found true the allegation
Murillo had absconded from parole supervision. Parole supervision was revoked and
restored on the same terms and conditions with the additional condition that Murillo
serve 150 days in county jail (with credit for 41 days of actual time and 41 days of
conduct credits). Murillo filed a timely notice of appeal.
                 PROPOSITION 47 AND THE ISSUES ON APPEAL
                                                                          2
       California voters approved Proposition 47 on November 4, 2014. In brief,
Proposition 47 (1) requires a misdemeanor sentence instead of a felony sentence for
certain drug possession offenses; (2) requires a misdemeanor sentence instead of a felony
sentence for the crimes of petty theft, receiving stolen property and forging/writing bad
checks when the amount involved is $950 or less; (3) allows a felony sentence (excluding
a defendant from a misdemeanor sentence) for the specified crimes if a defendant has a
prior conviction listed under section 667, subdivision (e)(2)(C)(iv), or a prior conviction
for an offense requiring sex offender registration under section 290; (4) requires
resentencing for defendants currently serving felony sentences for the specified crimes
unless the trial court finds an unreasonable public safety risk; and (5) provides for
designating a felony conviction as a misdemeanor if the individual has completed his or
her felony sentence. (See People v. Shabazz (2015) 237 Cal.App.4th 303, 308 & fn. 2.)
       Individuals who have completed their prison sentence and are on parole or
postrelease community supervision (PRCS) are entitled to seek relief under
Proposition 47. If being on parole or PRCS is considered “currently serving a sentence”
within the meaning of Proposition 47, the petition is one for resentencing and must be
filed under section 1170.18, subdivision (a), which requires the court to determine


2
       The initiative became effective on November 5, 2014.
                                              4
whether the petitioner is unreasonably dangerous to the community before it may be
granted (§ 1170.18, subd. (b)) and subjects the petitioner to a new, one-year parole term
unless the court releases the petitioner from parole as part of its resentencing order
(§ 1170.18, subd. (d)). If being on parole or PRCS is not a part of the sentence within the
meaning of Proposition 47—that is, if the word “sentence” includes only a defendant’s
prison term and not both the prison term and the corresponding period of parole or
PRCS—the petition is one for reclassification; and the petitioner is entitled to have his or
her felony conviction designated as a misdemeanor without any consideration of the
individual’s dangerousness and with no new or additional parole term (§ 1170.18,
subd. (g)).
       In his opening brief Murillo argues an individual who has completed his prison
sentence and is on parole is not currently serving a sentence within the meaning of
section 1170.18, subdivision (a), and the superior court therefore erred in denying his
motion to terminate and discharge parole following reclassification of his felony drug
conviction as a misdemeanor. He alternatively argues, to the extent he was resentenced
pursuant to section 1170.18, subdivision (b), and properly subject to the one-year parole
requirement of section 1170.18, subdivision (d), he was entitled to credit for excess
custody time served in prison and for the time he had already served on parole prior to his
resentencing under Proposition 47, a period that substantially exceeds the additional one-
year term imposed (see § 1170.18, subd. (d) [“[a] person who is resentenced pursuant to
subdivision (b) shall be given credit for time served”]). Both issues are currently pending
before the California Supreme Court, People v. Morales, S228030, review granted
August 26, 2015. (The Supreme Court granted review at the same time in People v.
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Hickman, S227964, which also raises the excess custody credit issue.)

3
       On October 14, 2015 the court granted review in People v. McCoy, S229296, and
deferred further action pending consideration and disposition of a related issue in
Morales. Petitions for review are pending in several other cases that have considered one
or both of the issues regarding Proposition 47 presented by Murillo in his opening brief,
including People v. Armogeda, review granted December 9, 2015, S230374, and People
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       After briefing was completed this court asked the parties to file supplemental letter
briefs addressing (1) whether the superior court judge who heard Murillo’s motion to
terminate and discharge parole on February 10, 2015 had jurisdiction and/or authority to
reconsider and revise the January 28, 2015 order entered by a different superior court
judge, who determined Murillo had completed his sentence for the qualifying felony drug
conviction within the meaning of section 1170.18, subdivisions (f) and (g); and
(2) assuming Murillo was not subject to a new term of parole following reclassification of
his felony as a misdemeanor on January 28, 2015 (either because no parole term was
authorized or because any additional parole term had been satisfied by application of
excess custody credits), did that termination of parole deprive the superior court of
jurisdiction and/or authority to punish the parole violation alleged in the January 7, 2015
                             4
petition to revoke parole?
                                      DISCUSSION
       1. Judge Lewis Improperly Reconsidered and Reversed Judge Olson’s Ruling that
          Murillo Had Completed His Sentence for the Felony Drug Possession
          Conviction
       As this court held in People v. Riva (2003) 112 Cal.App.4th 981, 991, as a general
rule one trial judge cannot reconsider and overrule an order of another trial judge. “[F]or
reasons of comity and public policy . . . , trial judges should decline to reverse or modify
other trial judges’ rulings unless there is a highly persuasive reason for doing so—mere
disagreement with the result of the order is not a persuasive reason for reversing it.
Factors to consider include whether the first judge specifically agreed to reconsider her
ruling at a later date, whether the party seeking reconsideration of the order sought relief
by way of appeal or writ petition, whether there has been a change in circumstances since
the previous order was made and whether the previous order is reasonably supportable



v. Pinon, review granted November 18, 2015, S229632.
4
       We also asked the parties to address whether the scheduled expiration of the
challenged one-year parole term on January 27, 2016 would moot Murillo’s appeal.
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under applicable statutory or case law regardless of whether the second judge agrees with
the first judge’s analysis of that law.” (Id. at pp. 992-993, fns. omitted; see People v.
Quarterman (2012) 202 Cal.App.4th 1280, 1293 [quoting Riva]; see also People v.
Williams (2006) 40 Cal.4th 287, 300 [citing Riva and the general rule]; In re Alberto
(2002) 102 Cal.App.4th 421, 430-431 [applying rule to reverse second order increasing
bail previously set by different judge].)
       Using these criteria Judge Lewis’s disagreement with Judge Olson’s determination
that Murillo had completed his sentence within the meaning of section 1170.18,
subdivision (f), was improper. When he entered his order designating Murillo’s felony
offense as a misdemeanor, Judge Olson did not indicate it was an interim ruling
(cf. People v. Castello (1998) 65 Cal.App.4th 1242, 1246 [“[i]n criminal cases there are
few limits on a court’s power to reconsider interim rulings”]) or suggest it was open to
reconsideration. The People did not seek review of that order by appeal or writ petition;
to the contrary, as discussed, the People apparently joined Murillo’s request and agreed
with the court’s disposition. Nor was there any change in circumstance between
January 28, 2015 and February 10, 2015 that would justify reconsideration or reversal of
the order. Nonetheless, in her supplemental letter brief the Attorney General argues
Judge Lewis was authorized to overrule her colleague’s order because it was not
reasonably supportable under applicable law.
       The Supreme Court may ultimately agree with the Attorney General; but the word
“sentence” has different meanings in different contexts, and for now the issue remains
unresolved. As the Attorney General argues in her respondent’s brief, section 3000,
subdivision (a)(1), expressly states, “A sentence resulting in imprisonment in the state
prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or
postrelease community supervision, unless waived, or as otherwise provided in this
article.” And section 1170, subdivision (c), part of the Determinate Sentencing Law,
directs the court to “inform the defendant that as part of the sentence after expiration of
the [prison] term he or she may be on parole for a period as provided in Section 3000.”

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       Murillo, on the other hand, emphasizes that Proposition 47 itself indicates
“sentence” is intended to refer only to the term of imprisonment or custodial
confinement. As discussed, section 1170.18, subdivision (d), specifies that a person who
is resentenced “shall be subject to parole for one year following completion of his or her
sentence” unless the court, in its discretion, declines to order the parole term. This
language, Murillo argues, demonstrates that parole is distinct from actual custody time,
which, in turn, is the “sentence” for Proposition 47 purposes. Otherwise, parole would
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not follow the completion of the petitioner’s sentence, it would be an extension of it.
Murillo also notes that arguments for and against Proposition 47 in the voter information
guide refer to early release of prisoners and reductions in the state prison population as a
result of resentencing individuals currently serving felony sentences (and a corresponding
temporary increase in the state parole population)—analyses that do not contemplate
resentencing individuals already released from prison and on parole.
       Both sides in this debate rely on language in People v. Nuckles (2013) 56 Cal.4th
601, which held assisting a parolee abscond from parole constitutes being an accessory to
a felony under section 32, defined as one who, after a felony has been committed,
“harbors, conceals or aids a principal in such felony, with the intent that said principal
may avoid or escape from arrest, trial, conviction or punishment . . . .” The Supreme
Court explained “[t]he concept of punishment is broader than the term of imprisonment”
and held parole is part of “punishment.” (Nuckles, at p. 608.) When discussing parole,
however, the Court, quoting from its earlier decision in In re Roberts (2005) 36 Cal.4th
575, 589-590, distinguished “‘[t]he general objectives of sentencing’”—protecting


5
       The Attorney General responds, in essence, that “sentence” in section 1170,
subdivision (d), refers to the new misdemeanor sentence imposed pursuant to
Proposition 47, while “sentence” in subdivisions (a) and (f) refers to the felony
conviction sentence, which includes a term of parole or PRCS. (But see People v.
Zambia (2011) 51 Cal.4th 965, 978 [“[i]t would be unreasonable and inconsistent to give
the term ‘another person’ a different meaning in subdivision (a)(2) from the meaning that
term has when used in other subdivisions of the same statute”].)
                                              8
society, punishing offenders, deterring future crimes—from “‘the objective of parole’”—
assisting the parolee’s reintegration into society through supervision and counseling.
(Nuckles, at pp. 608-609.) The Court also stated, “parole constitutes a distinct phase from
the underlying prison sentence” and added (again quoting from Roberts), “a prison
sentence ‘contemplates a period of parole, which in that respect is related to the
sentence.’” (Id. at p. 609.) That analysis, although presented in a very different context,
provides some support for Murillo’s contention he had completed his sentence for his
felony drug conviction when he filed his Proposition 47 petition even though he was still
on parole. Yet in the same paragraph in Nuckles the Court acknowledged the Attorney
General’s observation that “parole is a mandatory component of any prison sentence.”
(Ibid.)
          We do not purport to resolve this issue, which, as discussed, is presented by a case
currently pending before the Supreme Court. Reasonable arguments can be made for
both sides. In light of that uncertainty, however, even though Judge Lewis disagreed
with Judge Olson’s finding that Murillo had completed his sentence, she was without
authority to overrule it.
          2. Following Designation of Murillo’s Drug Conviction as a Misdemeanor, the
             Court Had No Jurisdiction To Revoke His Prior Felony Parole or To Impose
             New Parole Conditions
          The superior court had jurisdiction under the Criminal Justice Realignment Act of
2011 over the petition to revoke Murillo’s parole when it was filed on January 7, 2015.
(See Williams v. Superior Court (2014) 230 Cal.App.4th 636, 643; § 1203.2.) However,
when the superior court reclassified Murillo’s conviction as a misdemeanor pursuant to
section 1170.18, subdivision (g), on January 28, 2015, his parole supervision ended; and
the court’s jurisdiction terminated, as well. (Cf. In re Bakke (1986) 42 Cal.3d 84, 90,
fn. 5 [trial court’s order purporting to extend defendant’s probation after defendant’s
probationary term had expired was in excess of jurisdiction and void]; Hilton v. Superior
Court (2014) 239 Cal.App.4th 766, 772 [“once a defendant’s probationary term has
expired, a trial court no longer has jurisdiction to modify the defendant’s probation”].)

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       The Attorney General correctly observes, if a court summarily revokes probation
during the probation period under section 1203.2, subdivision (a), that serves to toll the
running of the probation period; and the hearing on a violation and imposition of sentence
may occur after the probationary period would otherwise have expired. (See, e.g., People
v. Burton (2009) 177 Cal.App.4th 194, 199; see also People v. Leiva (2013) 56 Cal.4th
498, 518 [“summary revocation operates in conjunction with section 1203.2(a)’s tolling
provision to allow the trial court to retain the authority to adjudicate a claim that the
defendant violated a term of probation during the court-imposed period of probation”].)
The same principle applies to summary revocation of parole supervision, which is now
included within section 1203.2, subdivision (a). But tolling is not the issue before us.
       There is no question, had there been no intervening order on January 28, 2015, the
court on February 10, 2015 would have had jurisdiction to conduct the parole revocation
hearing and to enter the order revoking parole and reinstating it on condition that Murillo
                               6
serve 150 days in county jail: Murillo’s parole was not scheduled to expire at that point
until February 23, 2016 without any need for an extension or tolling. However, when the
superior court entered its order on January 28, 2015 reclassifying Murillo’s conviction
pursuant to section 1170.18, subdivision (g), its jurisdiction over him ended. The original
parole term prescribed in connection with the prison sentence for his felony drug
conviction was terminated, and no new parole term pursuant to section 1170.18,
subdivision (d), was (or could be) imposed. In sum, the court should have granted the
motion to terminate and discharge parole and never proceeded to conduct the revocation
hearing.




6
       Murillo has apparently served the additional 150 days in county jail ordered by
Judge Lewis, and he makes no specific argument regarding that aspect of the superior
court proceedings.
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                                    DISPOSITION
      The postjudgment order denying Murillo’s motion to terminate and discharge
parole is reversed. The superior court is directed on remand to enter a new order granting
the motion.


                                                PERLUSS, P. J.


      We concur:




              SEGAL, J.


              BLUMENFELD, J.*




*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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