Filed 12/15/15 P. v. Diaz CA2/6
                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B264244
                                                                          (Super. Ct. No. 2010001002)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

DAVID RICHARD DIAZ,

     Defendant and Appellant.


         David Richard Diaz appeals from an order recalling his felony sentence, resentencing
him to a misdemeanor, and placing him on misdemeanor parole for one year. The order was
entered pursuant to Penal Code section 1170.18, enacted by Proposition 47.1 Appellant
contends that he is entitled to have the one-year period of misdemeanor parole reduced by
his "excess custody credits" and prior periods of parole on the felony commitment offense.
We affirm.
                                      Factual and Procedural Background

         In April 2010 appellant pleaded guilty to felony receiving stolen property. (§ 496,
subd. (a).) He was sentenced to prison for two years and given credit for time served of 173
days. He was informed that, after his release from prison, he could be placed on parole for
up to three years.
         In December 2010 appellant was released on parole. In March 2011 he absconded
from parole supervision and was returned to custody for one year. In July 2012 he
1
    All statutory references are to the Penal Code.
absconded a second time and was returned to custody for 100 days. In September 2012 he
absconded a third time and remained at large until his arrest in February 2015.
       In March 2015 appellant filed an application to have his felony conviction designated
a misdemeanor pursuant to subdivision (f) of section 1170.18. Appellant alleged that he had
completed his felony sentence.
       The prosecutor contended that appellant was still serving his felony sentence but was
eligible for resentencing to a misdemeanor pursuant to subdivisions (a) and (b) of section
1170.18. The prosecutor requested that appellant be resentenced to 364 days on the
misdemeanor, that he be given credit for time served of 364 days, and that he be placed on
misdemeanor parole for one year pursuant to subdivision (d) of section 1170.18. Defense
counsel protested that the court could not impose a period of misdemeanor parole because
appellant had "completed the whole sentence." Counsel asserted that his client was entitled
to 364 days of actual custody credit and 364 days of conduct credit.
       The trial court resentenced appellant to a misdemeanor and placed him on parole for
one year. The trial court stated, "The fact that he has absconded from parole for two and a
half years makes that an appropriate use of discretion."
                                         Proposition 47
       "On November 4, 2014, the voters enacted Proposition 47, 'the Safe Neighborhoods
and Schools Act' . . . , which went into effect the next day. (Cal. Const., art. II, § 10, subd.
(a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Before the passage of
Proposition 47, receiving stolen property was punishable either as a felony or a
misdemeanor. Proposition 47 amended section 496, subdivision (a) to make the offense
punishable only as a misdemeanor if the value of the stolen property does not exceed $950
and the defendant has not previously been convicted of specified serious felonies.
       Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section
1170.18 permits persons who are "currently serving a sentence for a conviction . . . of a
felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . .
[to] petition for a recall of sentence . . . [and] to request resentencing" under Proposition 47.
If the petitioner satisfies the criteria in subdivision (a), subdivision (b) provides that "the

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petitioner's felony sentence shall be recalled and the petitioner resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety." Subdivision (d)
provides, "A person who is resentenced . . . 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."
                The One-Year Period of Misdemeanor Parole Is Not Reduced
                    By Excess Custody Credits or Prior Periods of Parole
       Appellant contends that, against the one-year period of misdemeanor parole, he is
entitled to credit for "excess custody credits," the number of days by which his time served
in prison exceeds his misdemeanor sentence.2 Such credits are referred to as "Sosa credits."
In In re Sosa (1980) 102 Cal.App.3d 1002, the court held that presentence custody credits in
excess of a prisoner's term of imprisonment reduce the prisoner's time on parole.
       "[O]ur 'task is simply to interpret and apply the initiative's language so as to
effectuate the electorate's intent.' [Citation.]" (Robert L. v. Superior Court (2003) 30
Cal.4th 894, 901.) " '[W]e apply the same principles that govern statutory construction.
[Citation.] Thus, "we turn first to the language of the statute, giving the words their
ordinary meaning." [Citation.] The statutory language must also be construed in the
context of the statute as a whole and the overall statutory scheme [in light of the electorate's
intent]. When the language is ambiguous, "we refer to other indicia of the voters' intent,
particularly the analyses and arguments contained in the official ballot pamphlet."
[Citation.]' [Citation.]" (Id., at pp. 900-901.)

2
  This issue is before the California Supreme Court in People v. Morales, no. S228030,
review granted Aug. 26, 2015. (See Supreme Ct. News Release dated Oct. 16, 2015, p. 2,
http://www.courts.ca.gov/documents/ws101215.pdf [Morales "presents the following issue:
Can excess custody credits be used to reduce or eliminate the one-year parole period
required by Penal Code section 1170.18, subdivision (d), upon resentencing under
Proposition 47?].) The Supreme Court has granted review in two cases decided by this
court that involve the same issue: People v. McCoy, no. S229296, review granted Oct. 14,
2015; and People v. Hickman, no. S227964, review granted Aug. 26, 2015.)


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       The language of section 1170.18, subdivision (d) is unambiguous. It provides, "A
person who is resentenced . . . 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 . . . releases the person from parole." The phrase "shall be given credit for time
served and shall be subject to parole for one year" indicates that, irrespective of the amount
of credit for time served on the felony offense before it was reduced to a misdemeanor, the
petitioner shall be subject to parole for one year. Otherwise, the phrase would read, "shall
be given credit for time served and shall be subject to parole for one year unless credit for
time served reduces the one-year parole period." Instead, the "unless" clause states, "unless
the court, in its discretion . . . releases the person from parole." The statutory language
makes clear that the only exception to the one-year parole requirement is if the court
releases the person from that requirement. " '[T]he existence of specific exceptions does not
imply that others exist. The proper rule of statutory construction is that the statement of
limited exceptions excludes others, and therefore the judiciary has no power to add
additional exceptions; the enumeration of specific exceptions precludes implying others.'
[Citation.]" (In re James H. (2007) 154 Cal.App.4th 1078, 1083-1084; see also Building
Profit Corp. v. Mortgage & Realty Trust (1995) 36 Cal.App.4th 683, 689 [" 'When a statute
contains an exception to a general rule laid down therein, that exception is strictly construed
[citation] [and] [o]ther exceptions are necessarily excluded' "].)
              If the language of section 1170.18, subdivision (d) were ambiguous, the
ambiguity would be cured by the Legislative Analyst's comments in the official ballot
pamphlet. The Legislative Analyst informed the voters: "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), Prop. 47, Analysis by
Legislative Analyst, p. 36.) Any voter who read this statement would have assumed that a
one-year period of parole is mandatory unless the judge reduces or eliminates it. "The
Legislative Analyst's comments, like other materials presented to the voters, 'may be helpful
but are not conclusive in determining the probable meaning of initiative language.'
[Citation.] Thus, when other statements in the election materials contradict the Legislative

                                               4
Analyst's comments we do not automatically assume that the latter accurately reflects the
voters' understanding. [Citation.]" (San Francisco Taxpayers Assn. v. Board of Supervisors
(1992) 2 Cal.4th 571, 580.) Nothing in the election materials for Proposition 47 contradicts
the Legislative Analyst's conclusion that a person resentenced to a misdemeanor "would be
required to be on state parole for one year." This is the only statement in the election
materials concerning the one-year misdemeanor parole period. (See People v. Superior
Court (Henkel) (2002) 98 Cal.App.4th 78, 82 [Legislative Analyst's comment "eliminates
doubt" as to correct interpretation of ballot proposition].)
       Appellant contends that, against the one-year period of misdemeanor parole, he is
entitled to credit for prior periods of parole on the felony commitment offense. For the
reasons explained above, he is also not entitled to this credit. Furthermore, it would be
absurd to give appellant credit for prior parole periods when he repeatedly violated parole.
                                          Disposition
       The order recalling appellant's felony sentence, resentencing him to a misdemeanor,
and placing him on misdemeanor parole for one year is affirmed.
        NOT TO BE PUBLISHED.



                                                          YEGAN, J.
We concur:


              GILBERT, P.J.



              PERREN, J.




                                                5
                                  Rebecca Riley, Judge

                             Superior Court County of Ventura

                            ______________________________


             Mark Feeser, under appointment by the Court of Appeal, for Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.




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