Filed 10/7/15 P. v. Mangrobang CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061223

v.                                                                       (Super.Ct.No. SWF1203401)

EFREN ESTRADA MANGROBANG,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed as modified.

         Sheila Quinlan, 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, and Arlene A. Sevidal and

Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant, Efren Estrada Mangrobang, is serving eight years in

prison as a second striker after a jury convicted him of charges stemming from a traffic

stop during which deputies found drugs, stolen credit cards, and a handgun magazine in

his car. Defendant asks this court to (1) credit him with 51 additional days of presentence

custody credits and (2) reduce to misdemeanors his drug possession and receiving stolen

property convictions under Proposition 47, because his conviction was not yet final when

Proposition 47 was enacted.

       We modify the judgment to reflect the correct number of presentence custody

credits but otherwise affirm.

                                FACTS AND PROCEDURE

       1. Counts 1 through 5

       On January 10, 2012, a Riverside County deputy sheriff pulled defendant over in

his vehicle for having expired license tags. Because defendant exhibited symptoms of

nervousness, sweating, and slow-reacting pupils, the deputy arrested him and had him

provide a urine sample for drug testing. The sample came back positive for

methamphetamine. A search of defendant’s vehicle turned up a high capacity nine-

millimeter handgun magazine, a small amount of methamphetamine, a glass smoking

pipe, and some credit cards that were traced back to a theft from 2011.




                                            2
       2. Count 6

       On November 9, 2012, a sheriff’s deputy arrested defendant and a search showed

he had two baggies of methamphetamine in his right front pants pocket. The

methamphetamine was tested and found to weigh 0.42 grams.

       On July 12, 2013, the People filed an amended information charging defendant

with being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a); count 1),1

receiving stolen property (Pen. Code, § 496, subd. (a); count 2), possession of a

controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3), misdemeanor

being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd.

(a); count 4), misdemeanor possession of drug paraphernalia (Health & Saf. Code,

§ 11364.1; count 5), and possession of a controlled substance (Health & Saf. Code,

§ 11377, subd. (a); count 6). The People also alleged defendant had a prior strike

conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

       On July 17, 2013, the jury convicted defendant on all six counts. On that day,

defendant admitted the prior strike conviction.

       On October 25, 2013, the court sentenced defendant to eight years as follows: the

midterm of two years on count 1, doubled for the strike prior, plus consecutive 16-month

terms (eight months, doubled for the strike prior) for counts 2, 3, and 6, plus stayed

sentences on counts 4 and 5.

       This appeal followed.

       1   All further statutory references are to the Penal Code unless otherwise indicated.

                                              3
                                       DISCUSSION

       1. Correction of Presentence Credits

       Defendant argues, the People concede, and this court agrees, that the minute order

of October 25, 2013, and the abstract of judgment should be corrected to reflect the

correct number of actual custody and conduct credit days. The court erroneously

calculated defendant’s actual custody credits at 205 days and his conduct credits at 205

days, for a total of 410 days. A calculation error in custody credits is considered to be

clerical in nature, which can be corrected when it comes to the court’s attention. (People

v. Jack (1989) 213 Cal.App.3d 913, 916-917.)

       The correct numbers are 231 days of custody credits plus 230 days of section 4019

conduct credits, for a total of 461 days. Under section 4019, subdivision (f), “a term of

four days will be deemed to have been served for every two days spent in actual

custody.” The actual days are based on the following dates of custody—January 10 to

13, 2012 (four days actual), January 18 and 19, 2012 (two days actual), November 9,

2012 to January 2, 2013 (55 days actual), and May 9, 2013 to October 25, 2013 (170 days

actual).

       2. Proposition 47 Resentencing

       Defendant contends Proposition 47 requires this court to reduce his two drug

possession offenses (counts 3 & 6) and his receiving stolen property offense (count 2) to

misdemeanors and remand for resentencing. The People respond that Proposition 47




                                             4
does not apply retroactively, so defendant must file a petition in the superior court for

recall of his sentence under section 1170.18.

       In the November 4, 2014, general election, the voters passed Proposition 47, the

Safe Neighborhoods and Schools Act. (Pen. Code, § 1170.18.) For defendants who have

already been convicted and sentenced, as has defendant, Proposition 47 establishes a

procedure for resentencing based on a determination of dangerousness. It also reduces

crimes for some offenses to misdemeanors. As relevant here, drug possession under

Health and Safety Code section 11377 is now a misdemeanor (Health & Saf. Code,

§ 11377, subd. (a)), as is receiving stolen property if the value of the property is $950 or

less (Pen. Code, § 496, subd. (a)).

       Retroactivity is the key issue. No part of the Penal Code is retroactive unless

expressly so declared. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 319.) The

Proposition 47 initiative is silent about its application to cases that are not yet final on

appeal, such as defendant’s.

       In In re Estrada (1965) 63 Cal.2d 740, the court established the principle that a

reduction in punishment yields an “inevitabl[e]” intrinsic inference of retroactive

application to all cases not yet final on appeal, absent some form of saving clause from

which a court can find an intent of prospective application. (Id. at pp. 744-745, 747-748.)

However, the Estrada principle applies only where there is a reduction of a particular

punishment for a particular crime. (People v. Brown, supra, 54 Cal.4th at pp. 324-325.)

The reduction in punishment for a broad number of crimes (see § 1170.18, subds. (a), (b))


                                               5
in Proposition 47 has collective application to a class of different crimes and defendants,

and accordingly does not satisfy the restated Estrada-Brown criteria for applying an

inevitable intrinsic inference of an intent for retroactive application to defendants with

cases not yet final on appeal.

       In People v. Yearwood (2013) 213 Cal.App.4th 161, 173-174, the court applied

Estrada to hold that Proposition 36, enacted in November 2012, was not retroactive and

did not apply to defendants sentenced before the effective date of the law. The California

Supreme Court is currently reviewing the issue of the retroactivity of Proposition 36

based on Yearwood.2

       The Yearwood court reasoned that the petition procedure available for persons

currently serving a sentence for a crime affected by Proposition 36 acts as a “savings

clause” under Estrada, from which a court can find the intent for prospective, rather than

retroactive, application. Proposition 47 contains a similarly worded petition procedure

for persons “currently serving a sentence for a [felony] conviction . . . who would have

been guilty of a misdemeanor under the act that added this section . . . had this act been in

effect at the time of the offense may petition for a recall of sentence . . .” (§ 1170.18,

subd. (a)). Because of this similarity in language and in the overall petition procedure for

those currently serving a sentence that would be imposed differently post-Proposition 36




       2See, e.g., People v. Conley (2013) 215 Cal.App.4th 1482, review granted
August 14, 2013, S211275.

                                               6
or 47, we believe our Supreme Court will ultimately resolve the retroactivity issue

similarly for both propositions.

       Given the evolving state of the law, we therefore follow the reasoning in

Yearwood and Estrada and hold that Proposition 47 is not retroactive and does not permit

defendant to receive automatic resentencing. Instead, we conclude that he must pursue

his statutory remedy to petition the trial court for recall of sentence, resentencing, and a

determination of dangerousness. (§ 1170.18; People v. Yearwood, supra, 213

Cal.App.4th at pp. 170, 177.) This is in keeping with recently published appellate

decisions, including People v. DeHoyos (2015) 238 Cal.App.4th 363 (the amendments

enacted in Proposition 47 were not intended to apply automatically to people currently

serving sentences for listed offenses; rather, to be considered for resentencing, the

defendant would have to utilize the procedure specified in § 1170.18) and People v.

Shabazz (2015) 237 Cal.App.4th 303 (appellate court could not order the reduction of the

defendant’s felony drug possession and receiving stolen property convictions to

misdemeanors because the voters had not expressed the intent to permit such reduction

without the filing of an application in the trial court).

                                         DISPOSITION

       The judgment is modified as follows: (1) defendant shall receive presentence

credit of 461 days, consisting of 231 days of actual presentence custody credits and 230

days of presentence conduct credits. As modified, the judgment is affirmed.




                                               7
      The superior court clerk is directed to prepare a minute order and amended

abstract of judgment to reflect the modifications and to forward a copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                             RAMIREZ
                                                                                     P. J.


We concur:

HOLLENHORST
                         J.

MILLER
                         J.




                                           8
