Filed 6/28/16 P. v. Mestre 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                      G051414

                   v.                                               (Super. Ct. No. 13WF1205)

FRANK JOSEPH MESTRE,                                                OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Christopher
Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Jean Matulis, 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, Arlene A. Sevidal,
Andrew Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and
Respondent.
                                              *              *               *
              Frank Joseph Mestre appeals from a Proposition 47 resentencing order. He
contends the trial court erred in sentencing him to one year of parole under Penal Code
section 1170.18, subdivision (d), (all further undesignated statutory references are to this
code unless otherwise indicated) because he already had completed his felony prison
sentence. He also argues the trial court erred in failing to apply his excess custody credits
to reduce his parole term, as well as his fines and fees. For the reasons expressed below,
we affirm.
                                              I
                       FACTUAL AND PROCEDURAL BACKGROUND
              In May 2013, Mestre pleaded guilty to felony possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)) committed on April 22,
2013. In September 2013, the trial court imposed a 16-month prison term and also
ordered him to pay “a number of fines and fees as directed through the” Department of
Corrections and Rehabilitation. The court did not specify the fines and fees on the
record. The plea agreement specified a $280 restitution fine, as did the court’s minutes,
and the abstract of judgment. In January 2014, authorities released Mestre to postrelease
community supervision (PRCS).1
              In January 2015, Mestre filed a petition seeking to designate his conviction
as a misdemeanor (§ 1170.18, subd. (f)), or to recall his felony conviction, reduce the
conviction to a misdemeanor, and resentence him. (§ 1170.18, subd. (a).) At a hearing
on January 22, 2015, the trial court granted the recall petition and resentenced Mestre to
365 days in jail with custody and conduct credits of 365 days. The court imposed a one-
year parole period over Mestre’s objection he already had served the maximum time
permissible on his sentence.

       1
             In June 2015, we granted judicial notice of probation department
documents reflecting Mestre was released on PRCS on January 1, 2014, and his
supervision was scheduled to expire on December 31, 2016.

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                                              II
                                         DISCUSSION
              In his opening brief filed in June 2015, Mestre contends the trial court erred
by imposing a one year parole period. He argues a person on PRCS (§ 3450 et seq.) is
not currently serving his sentence (§ 1170.18, subd. (a)) and is therefore not subject to
parole (§ 1170.18, subd. (d); cf. § 1170.18, subd. (f)). Alternatively, he asserts the trial
court abused its discretion by imposing parole because he had served his entire term of
imprisonment and more than one year on PRCS, and the court erred in failing to apply
excess custody credits to reduce his parole term.
              He also notes the court imposed a $280 restitution fine (§ 1202.4, subd.
(b)(1)) at the original sentencing in May 2013, but did not address the fine at the
resentencing hearing in January 2015. He asserts the court’s failure to exercise discretion
concerning the fine at the resentencing hearing was an abuse of discretion, and he is
entitled to have the remaining credits that exceed his time in custody and on community
supervision applied to reduce his restitution fine at the rate of $30 per day (§ 2900.5,
subd. (a)).
              The trial court did not err in recalling the sentence under section 1170.18,
subdivision (a), and imposing a one-year parole period without using any excess custody
credits to reduce Mestre’s parole period. (People v. Morales (June 16, 2016, S228030)
___ Cal.4th ___ (Morales) [credit for time served does not reduce the parole period
required by section 1170.18, subd. (d)].) Although the Supreme Court’s decision in
Morales did not expressly decide whether a person who has completed a prison term and
placed on PRCS is still “serving a sentence” (§ 1170.18, subds. (a), (d)), this court
concluded in People v. Morales 238 Cal.App.4th 42 that PRCS is part of the sentence,
and this holding is implicit in the Supreme Court’s opinion in Morales. In any event,
Mestre’s parole ended in January 2016. As he is presumably no longer on parole, any
discussion of the issue is superfluous. (See Eye Dog Foundation v. State Board (1967)

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67 Cal.2d 536, 541 [duty of appellate court is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot questions
or abstract propositions or to declare principles or rules of law which cannot affect the
matter in issue].)
              Concerning the restitution fine (§ 1202.4, subd. (b)), the trial court recalled
and resentenced Mestre in January 2015, and the record does not reflect the court
imposed any fines. Mestre did not object at his resentencing that the court failed to
reduce the fine previously imposed in September 2013. Additionally, Mestre pleaded
guilty in May 2013 and agreed the court would order him to pay a fine of between $280
and $10,000. As part of the plea agreement, he also agreed to “waive and give up his
right to appeal from any legally authorized sentence the court imposes which is within the
terms and limits of th[e] plea agreement.” A $280 restitution fine was within the terms of
the plea agreement and was authorized for a misdemeanor in April 2013 when Mestre
committed his offense. (Former § 1202.4, subd. (b) [“If the person is convicted of
a misdemeanor, the fine shall not be less than . . . one hundred forty dollars ($140)
starting on January 1, 2013, . . . , and not more than one thousand dollars ($1,000)].)
Finally, Mestre has not established he had any excess credits that would reduce the
amount of his fine. We discern no cognizable error concerning the restitution fine.




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                                        III
                                   DISPOSITION
            The judgment is affirmed.




                                              ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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