Filed 8/21/15 (unmodified opn. attached)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                          G051212

        v.                                             (Super. Ct. No. 11WF1938)

JAIME MANUEL PINON,                                    ORDER MODIYING OPINION
                                                       AND DENYING PETITION FOR
    Defendant and Appellant.                           REHEARING; CHANGE IN
                                                       JUDGMENT


                 It is hereby ordered that the opinion filed on July 23, 2015, be modified as
follows:
                 The last sentence at the bottom of page 6, beginning with “We will remand,
therefore,” and ending at the top of page 7 with “of defendant’s PRCS” is deleted and the
following paragraphs are inserted in its place, with footnote 2 remaining at the end of the
last added paragraph:
                 “Next we must address how to calculate the parole period in light of
defendant’s excess custody credits. On a petition for rehearing, the People contend the
credits should first be applied to the one-year parole period, and then, if the parole period
is still longer than the remaining PRCS period, reduce the parole period to coincide with
the end of defendant’s PRCS. Defendant, on the other hand, contends we should first
reduce the parole period to coincide with the end of PRCS, and then further reduce the
parole period by defendant’s excess custody credits.
               To illustrate the distinction, suppose a defendant has three months
remaining on his PRCS and four months of excess custody credits. Using the People’s
method of calculation, we would first reduce the one-year parole period to eight months,
and since that is longer than the three months remaining on PRCS, reduce the parole
period to three months. The result is that defendant serves three months of parole. Using
defendant’s method, on the other hand, we would first reduce the one year parole period
to three months, and then apply the four months of custody credit, resulting in no parole
time at all.
               We conclude the People have the better of the argument. Subdivision (e) is
essentially a backstop. Penal Code section 1170.18, subdivision (d) provides, “A person
who is resentenced pursuant to subdivision (b) shall be given credit for time served and
shall be subject to parole for one year following completion of his or her sentence . . . .”
The credits, therefore, are applied in the context of a one-year parole period. Subdivision
(e) states, “Under no circumstances may resentencing under this section result in the
imposition of a term longer than the original sentence.” We interpret this to mean that,
after applying the resentencing rules set forth in the statute, the resulting sentence may
not exceed the original sentence. If it does, the sentence must be reduced to no longer
than the original sentence. The proper calculation, therefore, is to apply excess custody
credits to the one-year period of parole, and if that parole term exceeds what remains on
PRCS, to reduce the parole period to coincide with the end date of defendant’s PRCS.”
               On page 10, beginning on line 2, delete the following “as follows: The
base period is to be no longer than the last day of his former PRCS period, and any

                                              2
excess custody credits will further reduce the maximum parole period” and insert in its
place the words “consistent with this opinion” so that the sentence reads, “The
postjudgment order is reversed and the matter is remanded to the trial court to recalculate
defendant’s maximum parole period consistent with this opinion.”
              This modification changes the judgment.
              The petition for rehearing is DENIED.




                                                 ___________________________
                                                 IKOLA, J.

WE CONCUR:


___________________________
MOORE, ACTING P. J.


___________________________
FYBEL, J.




                                             3
Filed 7/23/15 (unmodified version)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G051212

        v.                                            (Super. Ct. No. 11WF1938)

JAIME MANUEL PINON,                                   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.) Affirmed in part,
reversed in part, and remanded with directions.
                 Robert Booher, under appointment by the Court of Appeal, for Defendant
and Appellant.
                 Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez,
Deputy Attorneys General, for Plaintiff and Respondent.
              In 2014 the voters passed Proposition 47, which reclassified certain
offenses from felonies to misdemeanors. Proposition 47 also enacted Penal Code section
1170.18, which creates a procedure whereby a defendant who suffered a felony
conviction of one of the reclassified crimes can petition to have his or her conviction
redesignated a misdemeanor. Under subdivision (a), if the defendant is still serving a
sentence, the defendant can have the sentence recalled and be given a misdemeanor
sentence instead. Defendants who are resentenced are subject to one year of parole
unless the court, in its discretion, waives the parole requirement. Under subdivision (f), if
the defendant has completed his sentence, he can petition to have his felony redesignated
a misdemeanor, and no parole period applies.
              In August 2011 defendant Jaime Manuel Pinon pleaded guilty to a felony
complaint of possession of methamphetamine (count 1; Health & Saf. Code, § 11377,
subd. (a)), and misdemeanor possession of controlled substance paraphernalia (count 2;
Health & Saf. Code, § 11364). In support of the plea, he stated, “On 8/12/11, I willfully
and unlawfully possessed: (1) a usable quantity of methamphetamine, a controlled
substance and (2) a pipe used for smoking a controlled substance.” The court sentenced
defendant to a state prison term of 16 months on count 1, and suspended imposition of
sentence on count 2. Upon defendant’s release from prison, he was placed on post-
release community supervision (PRCS). (Pen. Code, § 3451, subd. (a).) His PRCS was
set to expire in April 2015.
              In December 2014, defendant petitioned to reduce count 1 to a
misdemeanor pursuant to Penal Code section 1170.18, subdivision (f), or, in the
alternative, subdivision (a). The court granted defendant’s petition under subdivision (a)
and sentenced defendant to 545 days in county jail (thus imposing a 180-day jail term on
count 2 that had previously been suspended, and running that term consecutively),
credited him for the full 545 days, and, over defendant’s objection, imposed one year of
parole. Defendant timely appealed and now contends the court should not have imposed

                                             2
parole, or, in the alternative, should have imposed a shorter period of parole. We agree
with the latter contention and remand for a recalculation of defendant’s maximum parole
period.


                                      DISCUSSION


              In our recent opinion People v. Morales (June 26, 2015, G051142) __
Cal.App.4th __ [2015 Cal.App. Lexis 564], we resolved some of the issues defendant
raises in the present appeal. Namely, we held that a defendant serving a term of PRCS is
still serving his sentence under Penal Code section 1170.18, subdivision (a), and it is thus
appropriate for the court to recall that sentence, resentence defendant to a misdemeanor,
and impose one year of parole. We also held that any excess custody credits reduce the
maximum period of parole to which the defendant is subject. Here, the court resentenced
defendant under subdivision (a), which we affirm, but the record indicates defendant had
excess custody credits, which the court did not apply to defendant’s parole period. Thus,
at minimum, this case must be reversed and remanded for a recalculation of defendant’s
parole period.
              In Morales, however, we did not address an issue defendant raises here:
whether imposition of a parole period longer than the remainder of defendant’s PRCS
period violates Penal Code section 1170.18, subdivision (e) (subdivision (e)), which
states, “Under no circumstances may resentencing under this section result in the
imposition of a term longer than the original sentence.” Defendant’s PRCS was
scheduled to end in April 2015. The parole period, however, would extend through
December 2015. We conclude subdivision (e) precludes this result.
              The key to resolving the parties’ contentions is to interpret the word “term”
in subdivision (e). The People contend the word “term” refers only to the jail term, and
because the “original sentence” includes PRCS, subdivision (e) applies only where the

                                             3
jail term exceeds the combined period of prison and PRCS from the original sentence.
The People rely on People v. Nuckles (2013) 56 Cal.4th 601 where the Supreme Court
repeatedly referred to a term of imprisonment. (See, e.g., id. at p. 608 [“The concept of
punishment is broader than the term of imprisonment”].) Defendant contends “term” can
refer to a parole term. And, not surprisingly, cases also refer to terms of parole. (See,
e.g., People v. Britton (1984) 156 Cal.App.3d 689, 696, disapproved on other grounds by
People v. Williams (1999) 20 Cal.4th 119, 135 [“parole is . . . a ‘separate’ term to be
served after the initial term of imprisonment has been completed and to be ‘served’ under
the supervision of the Department of Corrections”].)
              The text itself is of little help in resolving this dispute. Subdivision (e)
gives no clear indication of which term it is referring to. The only other use of the word
“term” in Penal Code section 1170.18 is in subdivision (d), which provides that for
violations of parole, the court of the county where the violation occurred shall have
jurisdiction “for the purpose of hearing petitions to revoke parole and impose a term of
custody.” (Italics added.) This text can cut either way. On the one hand, one could
argue that the only other use of “term” in Penal Code section 1170.18 refers to the jail
term; on the other hand, where it so refers, the drafters specifically indicated they were
referring to a “term in custody.” Does “term” by itself import that same definition, or
does the failure to mention “in custody” indicate a deliberate choice to refer to a broader
concept of “term”? The text does not resolve this issue.
              Since the language of the statute is ambiguous, we turn next to indicia of
the voters’ intent. “Under general settled canons of statutory construction, we ascertain
the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] . . . [Citation.]
‘The statute’s plain meaning controls the court’s interpretation unless its words are
ambiguous.’” Where the language is ambiguous, “we turn to expressions of legislative
intent to construe it in the statute’s relative context.” (White v. Ultramar, Inc. (1999) 21
Cal.4th 563, 572.) In the context of a voter initiative, “we refer to other indicia of the

                                               4
voters’ intent, particularly the analyses and arguments contained in the official ballot
pamphlet.” (People v. Birkett (1999) 21 Cal.4th 226, 243.)
              Unfortunately, the official voter information guide does not directly address
the issue before us. The analysis section mentions the parole requirement only
perfunctorily: “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) Analysis of Prop. 47 by Leg. Analyst.) The argument
section does not mention parole at all.
              We are thus left with this: “‘we do not construe statutes in isolation, but
rather read every statute “with reference to the entire scheme of law of which it is part so
that the whole may be harmonized and retain effectiveness.” [Citation.]’ [Citation.] We
must also consider ‘the object to be achieved and the evil to be prevented by the
legislation. [Citations.]’ [Citation.] These guiding principles apply equally to the
interpretation of voter initiatives.” (Horwich v. Superior Court (1999) 21 Cal.4th 272,
276.)
              If there is one aspect of Proposition 47 that seems fairly obvious, it is that
resentencing from a felony to a misdemeanor is generally intended to reduce the overall
length of punishment to which the defendant is subject. There are two driving principles
behind the reduction in punishment. First, the voters reassessed the crimes subject to
Proposition 47 and determined their relative lack of severity did not justify a felony
punishment. The arguments in favor of Proposition 47 in the official voter information
guide, for example, refer to the crimes subject to reduction under Proposition 47 as
“petty,” “low-level,” and “nonviolent.” (Voter Guide, Gen. Elec., supra, argument in
favor of Prop. 47.) Second, and perhaps more importantly, Proposition 47 was intended
to save taxpayer money. The arguments in favor of Proposition 47 advertise that it
“[s]tops wasting money on warehousing people in prisons for nonviolent petty crimes,
saving hundreds of millions of taxpayer funds every year.” (Ibid.)

                                              5
              Both of these considerations support a broader interpretation of “term” to
include the parole period. Permitting a court to impose one full year of parole
supervision even beyond that to which the defendant was subject under a felony sentence
would render the punishment more severe with no apparent justification at all. (See
People v. Nuckles (2013) 56 Cal.4th 601, 608 [parole “constitutes part of the punishment
for the underlying crime”].) And requiring additional parole beyond that which was
required of a felony offense would, of course, cost the taxpayers additional money.
Neither of these results comport with the objectives of Proposition 47.
              Our conclusion is also consistent with the overall sentencing scheme.
Normally, misdemeanor offenders do not serve parole or PRCS after completing a term
in jail. (See Penal Code, §§ 3000, subd. (a) [“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,” italics added], 3450, subd. (b)(5) [applying PRCS to “certain felons reentering
the community after serving a prison term”].) PRCS lasts for a maximum of three years.
                                                        1
(Penal Code, §§ 3451, subd. (a), 3456, subd. (a)(1).)       Under the trial court’s ruling, the
one year parole period imposed would result in a total period of supervision of over three
years for a crime the voters have now determined is merely a misdemeanor. That result
makes little sense in the broader context of the overall sentencing scheme. Accordingly,
we interpret the word “term” in subdivision (e) to refer to either a term of jail or a term of
parole, such that the court may not impose a parole term that exceeds the scheduled end
date of the defendant’s PRCS. We will remand, therefore, for the trial court to adjust




1
              However, if the supervised person does not commit a violation resulting in
a custody sanction for a period of six months, the supervising county has discretion to
discharge the supervised person. If there are no such violations for a period of one year,
the supervised person must be discharged. (Penal Code, § 3456, subd. (a)(2)-(3).)

                                              6
defendant’s maximum parole date to correspond to the scheduled conclusion of
                    2
defendant’s PRCS.


The Court Was Not Required to Stay Count 2 Pursuant to Section 654
              When defendant was sentenced for his underlying felony, the court
suspended imposition of sentence as to count 2. When he was resentenced under section
1170.18, the court imposed a sentence as to count 2 and ran the sentences consecutively,
for a total of 545 days. Defendant contends the court was required to stay the sentence as
to count 2 pursuant to section 654. We disagree.
              Section 654, subdivision (a), provides, “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “Section 654
precludes multiple punishments for a single act or indivisible course of conduct.”
(People v. Hester (2000) 22 Cal.4th 290, 294.) “Section 654 does not preclude multiple
convictions but only multiple punishments for a single act or indivisible course of
conduct. [Citation.] ‘The proscription against double punishment . . . is applicable where
there is a course of conduct which violates more than one statute and comprises an

2
                We note the court sentenced defendant to a jail term of 545 days, a period
of custody that exceeds his original felony sentence of 487 days (16 months). The parties
do not address whether the new consecutive misdemeanor sentence violates subdivision
(e) and, accordingly, we express no opinion on that potential issue.
                Also, in his opening brief, defendant mentions in passing whether his days
in PRCS should be credited to his parole period. However, he did not provide any
reasoned argument or legal basis upon which to credit defendant these days — his entire
argument focuses on whether custody credits should apply to parole, an argument we
resolved in his favor. Defendant’s failure to develop his argument regarding alleged
PRCS credits operates as a waiver of the issue on appeal. (Interinsurance Exchange v.
Collins (1994) 30 Cal.App.4th 1445, 1448 [“parties are required to include argument and
citation to authority in their briefs, and the absence of these necessary elements allows
this court to treat appellant’s . . . issue as waived”].)

                                             7
indivisible transaction punishable under more than one statute . . . . The divisibility of a
course of conduct depends upon the intent and objective of the actor, and if all the
offenses are incident to one objective, the defendant may be punished for any one of them
but not for more than one.’” (People v. Miller (1977) 18 Cal.3d 873, 885, overruled on
other grounds as recognized in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8.) “On
the other hand, if the evidence discloses that a defendant entertained multiple criminal
objectives which were independent of and not merely incidental to each other, the trial
court may impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were parts of an otherwise
indivisible course of conduct. [Citations.] The principal inquiry in each case is whether
the defendant’s criminal intent and objective were single or multiple. Each case must be
determined on its own facts. [Citations.] The question whether the defendant entertained
multiple criminal objectives is one of fact for the trial court, and its findings on this
question will be upheld on appeal if there is any substantial evidence to support them.”
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.)
              Here, while the record is anemic, defendant stated that he “willfully and
unlawfully possessed: (1) a usable quantity of methamphetamine, a controlled substance
and (2) a pipe used for smoking a controlled substance.” He did not say he possessed the
pipe for the sole purpose of smoking the methamphetamine; rather, he possessed the pipe
for the more general purpose of smoking a controlled substance. While we might
normally be loath to parse defendant’s statement so closely, where, as here, there simply
are no other facts, defendant’s statement is substantial evidence to support the court’s
ruling.




                                               8
Defendant Forfeited His Objection to His Fines
              Defendant contends he is entitled to a reduction in the felony restitution
fine (Pen. Code, § 1202.4, subd. (b)) and felony parole revocation fine (Pen. Code,
§ 1202.45, subd. (b)) to the applicable misdemeanor fines. Defendant committed his
offense in August 2011 and was assessed $200 for each fine. As we noted in Morales,
supra, __ Cal.App.4th at p. __ [p. 11, fn. 4], “the maximum fine was $1,000, even for a
misdemeanor [citation], and thus the fines were not an unauthorized sentence. Defendant
failed to object below and has thus forfeited the issue.” The maximum fine in August
2011 was likewise $1,000, and thus defendant’s failure to object to the fines below
operates as a forfeiture.

The Requirement that Defendant Register Pursuant to Health & Safety Code Section
11590 Must Be Stricken
              Both parties agree that defendant is no longer required to register pursuant
to Health and Safety Code section 11590, which requires certain people convicted of
drug-related offenses to register with the local chief of police. However, subdivision (c)
of that section states, “This section does not apply to a conviction of a misdemeanor
under Section 11357, 11360, or 11377.” Here, defendant was convicted of a violation of
Health and Safety Code section 11377, but pursuant to Penal Code section 1170.18,
subdivision (k), “Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered
a misdemeanor for all purposes,” with certain exceptions not relevant here. Accordingly,
defendant’s misdemeanor conviction under Health and Safety Code section 11377 does
not require registration, and defendant’s misdemeanor conviction for possession of
paraphernalia (Health & Saf. Code, § 11364) is not a registrable offense. Thus we will
strike the requirement that defendant register pursuant to Health and Safety Code section
11590.



                                             9
                                     DISPOSITION


              The postjudgment order is reversed and the matter is remanded to the trial
court to recalculate defendant’s maximum parole period as follows: The base period is to
be no longer than the last day of his former PRCS period, and any excess custody credits
will further reduce the maximum parole period. The requirement that defendant register
pursuant to Health and Safety Code section 11590 is stricken. In all other respects, the
judgment is affirmed.




                                                 IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.




                                            10
