Filed 3/3/16 P. v. Rose 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051293

         v.                                                            (Super. Ct. No. 08HF0098)

PHILLIP ARTHUR ROSE,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher Evans, Commissioner. Reversed and remanded with directions.
                   John L. Dodd, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and
Respondent.
              Per Proposition 47, the trial court placed appellant Phillip Arthur Rose on
one year of parole after reducing his felony drug conviction to a misdemeanor. Appellant
does not contest the imposition of parole in and of itself, but he does assert the court erred
in failing to apply his excess custody credits toward his parole period and eligible fines.
We agree. We thus reverse the court’s order and remand for further proceedings.
                     FACTUAL AND PROCEDURAL BACKROUND
              In 2008, appellant pleaded guilty to felony drug possession and possessing
drug paraphernalia, a misdemeanor. (Health & Saf. Code, §§ 11350, 11364.) He also
admitted having suffered eight prior strike convictions and served four prior prison terms.
(Pen. Code, §§ 667, subds. (d)-(e)(2), 1170.12, subds. (b)-(c)(2), 667.5, subd. (b).)1 As
part of the plea agreement, the trial court struck seven of the strikes and two of the prison
priors and sentenced appellant to eight years in prison.
              On January 9, 2015, appellant filed a petition for resentencing under section
1170.18, which was added to the Penal Code pursuant to Proposition 47. Although the
prosecution did not object to resentencing, it did ask that appellant be placed on parole.
Appellant objected to the imposition of parole given he had already accumulated eight
years’ worth of custody credit on his underlying sentence. However, after reducing
appellant’s felony conviction to a misdemeanor and resentencing him to 365 days in jail,
the court placed him on parole for one year. In so doing, the court applied appellant’s
custody credits toward his misdemeanor sentence but not toward the term of his parole.
                                             DISCUSSION
              Appellant argues the trial court erred by failing to reduce the length of his
parole by his excess custody credits, i.e., the difference between the amount of custody
credit he had on his original sentence and the term he received on resentencing.
Appellant’s claim is well taken.


       1      All further statutory references are to the Penal Code.


                                                      2
                  This is not the first time we have addressed this issue. While the present
appeal was pending, we held in People v. Morales (2015) 238 Cal.App.4th 42 (Morales)
that defendants who are subject to parole under Proposition 47 are entitled to have their
excess custody credits counted toward their parole. On the heels of Morales, the trial
court issued an order modifying appellant’s sentence. Among other things, the court
determined appellant’s custody credits exceeded both his misdemeanor sentence and his
one-year parole period. It therefore discharged appellant from parole.
                  A month later, on August 26, 2015, the California Supreme Court granted
review of Morales (S228030), as well as People v. Hickman (2015) 237 Cal.App.4th 984
(Hickman), a decision from the Second District which reached the opposite conclusion
from Morales on the credits issue (S227964). The split reemerged after the Second
District reaffirmed the holding of Hickman in People v. McCoy (2015) 239 Cal.App.4th
431 (McCoy), and this court reaffirmed the holding of Morales in People v. Armogeda
(2015) 240 Cal.App.4th 1039 (Armogeda). However, the Supreme Court has granted
review of both McCoy (S229296) and Armogeda (S230374).
                  Based on the foregoing, it is apparent the California Supreme Court is
going to speak to the issue presented in this appeal. When it does, its ruling will be
dispositive of that issue. In the meantime, we still have to decide the proper resolution of
appellant’s case. While we salute the trial court’s initiative in modifying appellant’s
sentence to comport with Morales, the court lacked jurisdiction to make the modification
because this appeal was already pending at that time. (People v. Scarbrough (2015) 240
Cal.App.4th 916; People v. Awad (2015) 238 Cal.App.4th 215.) Therefore, the
modification order is void. (Ibid.)2




         2         Although section 1237.1 gives trial courts concurrent jurisdiction to correct errors involving the
calculation of presentence credits while an appeal is pending, that section applies only to mathematical or clerical
mistakes, not substantive issues like the one involved in this case. (People v. Delgado (2012) 210 Cal.App.4th 761.)


                                                         3
              Nevertheless, we continue to adhere to the position this court exposed in
Morales and Armogeda that defendants who are resentenced under Proposition 47 are
entitled to have the length of their parole reduced by their excess custody credits. In
arguing otherwise, the Attorney General claims the plain language and intent of
Proposition 47 require the imposition of a full year of parole without any reduction for
custody credits. However, Proposition 47 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).) With these provisions in mind, we turn our
attention to the law respecting the allocation of custody credits in criminal cases.
              The general rule, as reflected in section 2900.5, is that defendants are
entitled to credit against their “term of imprisonment” for any time spent in custody prior
to sentencing. (§ 2900.5, subd. (a).) And because the term of imprisonment includes
parole (§ 2900.5, subd. (c)), presentence custody credit also applies against the parole
portion of the defendant’s sentence. (In re Ballard (1981) 115 Cal.App.3d 647; In re
Sosa (1980) 102 Cal.App.3d 1002, 1005.) In fact, section 1170, subdivision (a)(3) makes
clear that defendants are not required to serve time on parole if their “in-custody credits
equal [their] total sentence, including both confinement time and the period of parole.”
              The drafters of Proposition 47 could easily have included language in the
initiative to exempt persons resentenced under its terms from these well-established rules.
But rather than do so, they specifically extended to defendants seeking resentencing relief
all the rights and remedies to which they would otherwise be entitled. (§ 1170.18, subd.
(m).) This includes the right to have presentence credits deducted from any parole period
they are ordered to serve at the time of resentencing.
              Respondent assails this conclusion on the basis defendants who were
originally sentenced to long prison terms, and are thus in the greatest need of parole, will
be in the best position to avoid postrelease supervision upon resentencing, due to their

                                              4
accumulated custody credits. However, that is a necessary consequence of our credits
system, which recognizes presentence custody is a form of punishment. (In re Watson
(1977) 19 Cal.3d 646, 651.) Indeed, basic fairness explains why, as reflected in section
2900.5, defendants are entitled to a reduction in their parole if their presentence
confinement exceeds the length of their sentence. (In re Sosa, supra, 102 Cal.App.3d at
p. 1006.)
              Appellant is not only entitled to have his parole term reduced in light of his
excess custody credits, he is also entitled to have the amount of his eligible fines reduced
as well. (§ 2900.5, subd. (a); People v. Robinson (2012) 209 Cal.App.4th 401, 406-407;
People v. McGarry (2002) 96 Cal.App.4th 644, 646.) Therefore, the trial court erred in
failing to apply appellant’s excess custody credits in its original resentencing decision.
                                        DISPOSITION
              The trial court’s modification order filed on July 23, 2015 is void. The
court’s original resentencing order is reversed and the matter is remanded with directions
for the court to apply appellant’s excess custody credits toward the length of his parole
and the amount of his eligible fines.




                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




                                              5
