Filed 8/20/15 P. v. Phillips 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051192

         v.                                                            (Super. Ct. No. 12WF3550)

RON BRADLEY PHILLIPS,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie Hix, Commissioner. 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, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson,
Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff
and Respondent.
                                             *               *               *
                                       Introduction
              Ron Bradley Phillips appeals from a postjudgment order granting in part
and denying in part his application under Penal Code section 1170.18 for a recall of
sentence on his felony conviction and to reduce that conviction to a misdemeanor.
Although the trial court reduced the conviction to a misdemeanor, Phillips argues the
court erred by imposing a one-year parole term under section 1170.18, subdivision (d)
(section 1170.18(d)) because he was not still serving a sentence when he was on
postrelease community supervision (PRCS). Alternatively, Phillips argues his excess
custody credits should reduce his parole term and fines.
              We conclude Phillips is subject to a parole term under section 1170.18(d),
but the length of parole cannot be longer than the remainder of his PRCS and his excess
custody credits must be applied against the parole term and/or restitution and parole
revocation fines. In addition, we conclude the trial court erred by imposing an
unauthorized jail term, which must be corrected on remand, Phillips forfeited any
challenge to the restitution fine and parole revocation fine, and the order requiring him to
register under Health and Safety Code section 11590 must be stricken. We therefore
affirm in part, reverse in part, and remand with directions.
                                           Facts
              A single-count information, filed on January 17, 2013, charged Phillips
with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))
and alleged a prior felony conviction (Pen. Code, §§ 667, subds. (d) & (e)(1), 1170.12,
subds. (b) & (c)(1)). On January 24, 2013, Phillips pleaded guilty and admitted the prior
felony conviction. As the factual basis for the plea, Phillips stated that on December 27,
2012, he “knowingly possessed a useable amount of methamphetamine, a controlled
substance.”
              The trial court sentenced Phillips to a term of 16 months in prison, struck
the prior conviction for purposes of sentencing, imposed various fines (including a

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restitution fine of $240 and a parole revocation fine of $240), and ordered him to register
under Health and Safety Code section 11590.
              In December 2014, Phillips filed an application pursuant to Penal Code
section 1170.18, subdivision (f) (section 1170.18(f)) to have the felony conviction for
possession of methamphetamine designated as a misdemeanor. In the alternative,
Phillips sought to have the sentence recalled pursuant to Penal Code section 1170.18,
subdivision (a) (section 1170.18(a)). At the time Phillips filed his application, he had
served his prison sentence and was on PRCS.
              The trial court granted the application under section 1170.18(a), recalled
the sentence, and reduced the conviction to a misdemeanor violation of Health and Safety
Code section 11377, subdivision (a). The court imposed a term of 492 days in jail with a
one-year parole period pursuant to section 1170.18(d). Phillips timely appealed.


                                        Discussion
1. Imposition of One-year Parole Term
              In 2014, the voters enacted Proposition 47, which makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. Those offenses previously had been designated either as felonies
or as crimes that can be punished as either felonies or misdemeanors. (See People v.
Morales (2015) 238 Cal.App.4th 42, 46 (Morales).)
              Proposition 47 added, among other things, section 1170.18 to the Penal
Code. (Morales, supra, 238 Cal.App.4th at p. 46.) Penal Code section 1170.18 is a
resentencing provision that provides two distinct remedies depending on whether the
person seeking relief has completed the sentence for the conviction. When the person is
currently serving the sentence, section 1170.18(a) governs. It states: “A person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section (‘this act’)

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had this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.” (§ 1170.18(a), italics added.)
              When the person has completed the sentence, section 1170.18(f) governs.
It states: “A person who has completed his or her sentence for a conviction, whether by
trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under
this act had this act been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his or her case to have the
felony conviction or convictions designated as misdemeanors.” (§ 1170.18(f).)
              If the court determines the criteria for relief under section 1170.18(a) are
satisfied, then the felony sentence is recalled and the person is resentenced to a
misdemeanor, unless the trial court determines that resentencing the person would pose
an unreasonable risk of danger to public safety. (Pen. Code, § 1170.18, subd. (b).)
Significantly here, section 1170.18(d) provides that a person who is resentenced pursuant
to Penal Code section 1170.18, 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, unless
the court, in its discretion, as part of its resentencing order, releases the person from
parole.” (§ 1170.18(d).)
              If the court determines the criteria for relief under section 1170.18(f) are
satisfied, then “the court shall designate the felony offense or offenses as a
misdemeanor.” (Pen. Code, § 1170.18, subd. (g).) The person obtaining relief under
section 1170.18(f) is not resentenced and is not subject to the one-year parole term of
section 1170.18(d).
              Phillips contends the trial court erred by imposing a one-year parole term
under section 1170.18(d) because he had completed his sentence and was on PRCS when

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he filed his application. The issue is whether someone who is on PRCS is “currently
serving a sentence” (§ 1170.18(a)) or “has completed his or her sentence” (§ 1170.18(f)).
In Morales, supra, 238 Cal.App.4th at page 48, a panel of this court held that PRCS was
part of the felony sentence and, because the defendant was on PRCS when he filed his
petition under Penal Code section 1170.18, “he was still serving his sentence and thus
subject to the parole requirement.” In so holding, the Morales court reconciled what
appeared to be a contradiction among Penal Code sections 1170, 1170.18, and 3000 in
the use of the word “sentence.” (Morales, supra, at pp. 47-50.) We find Morales
persuasive and follow it here.

2. Parole Period Not to Exceed Length of Remaining PRCS
              Penal Code section 1170.18, subdivision (e) (section 1170.18(e)) states that
“[u]nder no circumstances may resentencing under this section result in the imposition of
a term longer than the original sentence.” Phillips contends section 1170.18(e) means
that, when resentencing a defendant under section 1170.18(a), a court may not impose a
period of parole under section 1170.18(d) that is longer than the period of time the
defendant has remaining on parole or PRCS. He contends the trial court erred by not
taking the limitation of section 1170.18(e) into account when imposing a one-year term
of parole under section 1170.18(d).
              In People v. Pinon (2015) 238 Cal.App.4th 1232 (Pinon), a panel of this
court concluded that imposition of a parole period longer than the remainder of the
defendant’s PRCS violated section 1170.18(e). The Pinon court stated: “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. [Citation.] And requiring additional parole beyond
that which was required of a felony offense would, of course, cost the taxpayers




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additional money. Neither of these results comport with the objectives of
Proposition 47.” (Pinon, supra, at pp. 1237-1238.)
              We agree with Pinon and follow it here. On remand, the trial court shall
impose a period of parole no longer than the length of time remaining on Phillips’s
PRCS.

3. Unauthorized Sentence of 492 Days in Jail
              After granting Phillips’s application under Penal Code section 1170.18, the
trial court sentenced Phillips to 492 days in jail. Phillips contends, and the Attorney
General agrees, that sentence was unauthorized because the maximum term for a
misdemeanor violation of Health and Safety Code section 11377, subdivision (a) is one
year. On remand, the trial court shall resentence Phillips to an authorized jail term.

4. Application of Excess Custody Credits to Parole and Fines
              Phillips contends his custody credits exceeded the maximum authorized
term under Health and Safety Code section 11377, subdivision (a) and the excess must be
credited against any period of parole he is required to serve and any fines he is required
to pay. In Morales, supra, 238 Cal.App.4th at page 50, the court explained the general
rule is that a person subject to parole is entitled to credit excess custody time against the
parole period, and the voters must have known this when they enacted Proposition 47.
The Morales court stated, “[t]here is no clear indication the voters intended to change the
law on this front; to the contrary, they expressly retained all ‘otherwise available’
remedies. [Citation.]” (Morales, supra, at p. 50.)
              As to fines, the Morales court explained: “[Penal Code s]ection 2900.5,
subdivision (a), permits excess custody credits to be ‘credited to any fine, including, but
not limited to, base fines, on a proportional basis, that may be imposed, at the rate of not
less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the
sentence.’ [Penal Code s]ection 1170.18 says nothing about fines, and thus credit against

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applicable fines is a remedy otherwise available.” (Morales, supra, 238 Cal.App.4th at
pp. 51-52.)
               We agree with and follow Morales and conclude any excess custody credits
may reduce Phillips’s parole period and fines. We disagree with People v. McCoy
(Aug. 12, 2015, B260449) __ Cal.App.4th __ [2015 Cal.App. Lexis 693] to the extent it
is contrary to Morales.

5. Restitution and Parole Revocation Fines
               At the original sentencing in January 2013, the trial court imposed a
restitution fine of $240 under Penal Code section 1202.4 and a parole revocation fine
under Penal Code section 1202.45 in the same amount. Phillips contends those fines
should be reduced to the appropriate minimum misdemeanor amounts, which, he claims,
would be $140 each.
               Phillips did not object to the fines in the trial court and therefore has
forfeited the issue. (Pinon, supra, 238 Cal.App.4th at p. 1240; Morales, supra, 238
Cal.App.4th at p. 52, fn. 4.) The Morales court explained: “[T]he maximum fine was
$1,000, even for a misdemeanor ([Pen. Code, § 1202.4, subd. (b)(1)]), and thus the fines
were not an unauthorized sentence. Defendant failed to object below and has thus
forfeited the issue.” (Morales, supra, at p. 52, fn. 4.) The maximum misdemeanor fine
in January 2013, when Phillips pleaded guilty, likewise was $1,000 (Pen. Code,
§§ 1202.4, subd. (b)(1), 1202.45, subd. (a)) and, therefore, his failure to object to the
fines in the trial court operates as a forfeiture.

6. Registration under Health and Safety Code Section 11590
               Phillips and the Attorney General agree the order requiring him to register
under Health and Safety Code section 11590 must be stricken. We conclude the order
requiring Phillips to register must be stricken. (Pinon, supra, 238 Cal.App.4th at
p. 1240.)

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                                        Disposition
              The matter is remanded to the trial court with instructions to recalculate
Phillips’s parole period consistently with this opinion, resentence Phillips to an
authorized jail term, and to apply any excess custody credits against any period of parole
and/or applicable fines Phillips owes. The order requiring Phillips to register pursuant to
Health and Safety Code section 11590 is stricken. In all other respects, the postjudgment
order is affirmed.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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