Filed 5/20/16 P. v. Mugica 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051237

         v.                                                            (Super. Ct. No. 13WF0540)

VINCENT MUGICA,                                                        OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Vickie L.
Hix, Temporary Judge. Reversed 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, Eric Swenson and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.


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              Defendant Vincent Mugica appeals from the order granting his Proposition
47 resentencing petition. He contends the trial court erred in imposing parole under
Penal Code section 1170.18, subdivision (d) (all further undesignated statutory references
are to this code) because he had already served his sentence. We are not persuaded.
              Alternatively, defendant argues his excess days spent in custody and time
spent on post-release community supervision (PRCS) should be credited first against the
year of parole and then to his outstanding fines and fees. The Attorney General responds
that the price of a Proposition 47 sentence reduction is “a full one-year parole period.”
We disagree and conclude the trial court was required to ensure the parole period did not
exceed his original sentence. As to applying defendant’s excess custody credits to the
parole period and any eligible fines, the issue is moot because defendant has no excess
custody credits to apply.
              Defendant also asserts the court should have reduced his restitution fine to
the amount applicable to misdemeanor convictions, and stricken his controlled substance
offender registration requirement. He has waived the issue with respect to the amount of
the restitution fine ordered by the court. As to the controlled substance offender
registration requirement, the order has been vacated and is thus moot.


                        FACTS AND PROCEDURAL HISTORY


              On February 21, 2013, defendant Vincent Mugica pleaded guilty to
possession of methamphetamine and misdemeanor violation of a protective order. The
trial court struck two allegations of prior strike convictions from 1993 and 1995,
sentenced defendant to two years in prison on count 1 and suspended sentencing on count
2.
              On December 17, 2014, the court granted defendant’s petition to have his
felony conviction for possessing a controlled substance redesignated as a misdemeanor

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under section 1170.18, subdivision (f). The court gave defendant credit for time served,
and placed him on parole for one year.
              Almost eight months after defendant filed his notice of appeal, on August
12, 2016, the court issued an order stating, “1. The sentence for Count 1 is changed to
364 days. Count 2 is 365 consecutive for a total 729. [¶] 2. Defendant’s excess credits
of 8 days shall be applied to reduce his period on parole by 8 days to 357 days. [¶] 3.
Fines and fees remain. [¶] 4. The registration requirement under section 11590 of the
Health and Safety Code is vacated for this matter.” Although no motion to augment
appears in the record, a supplemental clerk’s transcript was prepared and forwarded to
this court.


                                       DISCUSSION


1. August 12 Order
              We salute the court’s initiative in changing defendant’s custody credits and
reducing his parole period, but believe it lacked jurisdiction to do so after the notice of
appeal was filed. Section 1237.1 gives trial courts concurrent jurisdiction to correct the
calculation of presentence credits while an appeal is pending, but it applies only to
mathematical or clerical errors, not substantive issues like these. (People v. Delgado
(2012) 210 Cal.App.4th 761.) Those parts of the August 12 order are void.
              The other parts of the August 12 order are valid, despite the pending
appeal, because they corrected portions of defendant’s original resentence that were
unauthorized. (People v. Cunningham (2001) 25 Cal.4th 926, 1044; § 18.5 [offense
punishable by imprisonment in a county jail not to exceed 364 days]; Health & Saf.
Code, § 11590, subd. (c) [registration requirement does not apply to a misdemeanor
conviction under Health & Saf. Code, § 11377].)



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2. One Year of Parole
              Defendant contends the court erroneously imposed one year of parole
because he had already completed his sentence. We disagree.
              Proposition 47 draws a distinction between defendants who are currently
serving their original sentence and those who have already completed their sentence.
While 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 (§
1170.18, subd. (f)).
              Although defendant acknowledges he was on PRCS at the time he filed his
Proposition 47 petition, he nevertheless argues he was not “currently serving a sentence”
within the meaning of section 1170.18, subdivision (a). Citing rules of statutory
interpretation and People v. Nuckles (2013) 56 Cal.4th 601, he claims the word
“sentence” in the phrase “currently serving a sentence” excludes time spent on parole or
PRCS. Thus, he contends the court should not have imposed parole at all.
              We have previously addressed these arguments in People v. Morales (2016)
238 Cal.App.4th 42 review granted August 26, 2015, S228030 (Morales), and continue to
adhere to the position expounded therein and reaffirmed in People v. Pinon (2015) 283
Cal.App.4th 1232, review granted November 18, 2015, S229632, that a defendant serving
a term of PRCS is still serving a sentence under section 1170.18, subdivision (a). We
thus conclude the court here correctly imposed parole.


3. Parole Period Exceeding PRCS Termination Date
              The Attorney General asserts “a full one-year parole period is the price of
[a] Proposition 47 sentence reduction.” We disagree. Section 1170.18, subdivision (e),
states, “Under no circumstances may resentencing . . . result in the imposition of a term
longer than the original sentence.” We continue to follow our opinion in Pinon, which
viewed the word “term” as meaning either a jail or a parole term and concluded a trial

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court may not impose a parole term going past the scheduled end date of defendant’s
PRCS. Thus, the court erred to the extent the new parole period extended beyond the
scheduled termination date of defendant’s PRCS, and we will remand to allow the court
to adjust the maximum date of defendant’s parole such that it corresponds with the end of
defendant’s PRCS date.


4. Excess Custody Credits Applied to Parole Period and Eligible Fines
              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).) Defendant thus argues that, as an alternative
to striking the parole period, to the extent his custody credits exceed those applied to his
county jail sentence, the court should have applied those excess custody credits to his
parole period and any eligible fines and fees.
              The Courts of Appeal are divided on this issue. (Cf. Morales, supra,
review granted August 26, 2015, S228030 [defendants entitled to have their excess
custody credits counted toward their period of parole and eligible fines] & People v.
Armogeda (2015) 240 Cal.App.4th 1039, review granted December 9, 2015, S230374
[following Morales], with People v. Hickman (2015) 237 Cal.App.4th 984, review
granted August 26, 2015, S227964 [reaching opposite conclusion from Morales on the
credits issue] & People v. McCoy (2015) 239 Cal.App.4th 431, review granted October
14, 2015, S229296 [following Hickman].)
              We need not weigh in on the issue. In her letter brief filed in response to
our request for further briefing from the parties regarding the applicability of People v.
Morris (2015) 242 Cal.App.4th 94 with regard to restitution fines, the Attorney General
noted “the point is moot, because [defendant] has no excess custody credits.” She is
correct. Defendant originally received a two-year sentence in state prison. Upon

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granting his Proposition 47 petition, the court resentenced him to two years in jail and
gave him credit for the two years served. There are thus no excess credits to apply to
defendant’s parole period or fines.


5. Amount of Restitution
              Defendant acknowledges he did not object to the imposition of a state
restitution fine of $240 and that the amount lies “within the statutory maximum
authorized for misdemeanors.” The issue is waived. (People v. Scott (1994) 9 Cal.4th
331, 353-354.)


6. Registration Requirement for Controlled Substance Offender
              Finally, defendant asserts the order requiring him to register as a controlled
substance offender must be stricken. He argues the order exceeded the court’s statutory
authority after count 1 was reduced to a misdemeanor, and thus constituted an
unauthorized sentence, which may be challenged despite failing to raise the issue at the
resentencing hearing. The Attorney General agrees, as do we. The court lacked statutory
authority to order registration after count 1 was reduced to a misdemeanor (Health & Saf.
Code, § 11590, subd. (c)), and defendant did not forfeit the issue by his failure to object
at the resentencing hearing. (See People v. Brun (1989) 212 Cal.App.3d 951, 954.) But
because the court’s December 17 order vacated the registration requirement, the issue is
now moot.


                                      DISPOSITION


              The order is reversed and the matter is remanded to the trial court with
instructions to recalculate defendant’s parole period consistent with this opinion. In



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addition, the trial court is ordered to strike the registration requirement imposed under
Health and Safety Code section 11590.




                                                  RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




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