Filed 11/3/15; pub. order 11/12/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                             H041781
                                                       (Santa Clara County
         Plaintiff and Respondent,                      Super. Ct. No. C1350962)

         v.

RONALD DEAN MORRIS,

         Defendant and Appellant.



                                           I. INTRODUCTION
         Defendant Ronald Dean Morris pleaded no contest to the felony charge of
petty theft with three or more prior theft convictions (Pen. Code, § 666, subd. (a)),1 and
admitted the allegations that he had one prior violent or serious felony conviction (§ 667,
subds. (b)-(i)) that also qualified as a strike within the meaning of the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12) and he had served two prior prison terms (§ 667.5,
subd. (b)). The trial court imposed a term of four years in the state prison. Defendant




         1
        All statutory references hereafter are to the Penal Code unless otherwise
indicated.
appealed and this court affirmed the judgment in People v. Morris (June 27, 2014,
H040326) [nonpub. opn.] (Morris I).2
       In November 2014 defendant filed a petition for resentencing pursuant to
section 1170.18, subdivision (a). Section 1170.18 was enacted by Proposition 47, the
Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters,
Gen. Elec. (Nov. 4, 2014), effective Nov. 5, 2014.) The trial court granted the petition
on November 10, 2014, and resentenced defendant as a misdemeanant.
       On appeal, defendant contends that the trial court erred in failing to apply his
excess custody credits to satisfy the $200 restitution fine imposed under section 1202.4.
For the reasons stated below, we agree and therefore we will order the trial court to
modify the judgment to reflect that the restitution fine imposed under section 1202.4 has
been satisfied in full by defendant’s excess days spent in custody.
               II. FACTUAL AND PROCEDURAL BACKGROUND
       A. Morris I
       On January 26, 2013, defendant entered a Costco store, concealed a laptop
computer under his shirt, and left the store without paying for it. The theft was
discovered when a store employee found an empty laptop box. The store manager
reviewed video surveillance and distributed a photograph of defendant to store personnel.
When defendant returned to the Costco store a few days later, he was recognized and the
laptop theft was reported to the Santa Clara Police Department. At the time of his arrest,
defendant admitted that he had taken the laptop and used it to pay a debt.



       2
         Defendant’s request for judicial notice of the record on appeal in Morris I, supra,
H040326 was granted in the order of October 7, 2015. This court also takes judicial
notice of the prior opinion in Morris I. (Evid. Code, § 452, subd. (d)(1).) Our summary
of the factual and procedural background includes some information that we have taken
from the prior opinion.


                                             2
       The complaint filed in February 2013 charged defendant with one felony count of
petty theft with three or more prior theft convictions (§ 666, subd. (a)) and alleged that he
had one prior violent or serious felony conviction (§ 667, subds. (b)-(i)) that also
qualified as a strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12) and he had served two prior prison terms (§ 667.5, subd. (b)).
       On July 10, 2013, defendant pleaded no contest to the charge of petty theft with
three or more prior theft convictions (§ 666, subd. (a)) and admitted the allegations that
he had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and two prison priors
(§ 667.5, subd. (b)). After denying defendant’s motion pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, the trial court imposed the indicated maximum
sentence of four years.
       The trial court ordered defendant to pay a $280 restitution fine (§ 1202.4,
subd. (b)(2)) and suspended the imposition of a $280 parole revocation restitution fine
(§ 1202.45). The court also ordered payment of a court security fee of $40 (§ 1465.8,
subd. (a)(1)), a criminal conviction assessment fee of $30 (Gov. Code, § 70373), and
payment of direct victim restitution in the amount of $719 (the value of the laptop) to
Costco.
       B. Petition for Resentencing
       Defendant filed a petition for resentencing pursuant to section 1170.18,
subdivision (a) on November 5, 2014. In his petition, defendant asserted that he was
eligible to be resentenced on his section 666, subdivision (a) conviction (petty theft with
three or more prior theft convictions), that he had no disqualifying convictions, and that
he was still serving his sentence. He requested that his sentence be recalled and his
conviction converted to a misdemeanor for all purposes.
       The trial court granted the petition for resentencing on November 10, 2014, and
reduced defendant’s section 666 felony conviction to a misdemeanor. The court ordered
defendant to serve a six-month jail term, pay a restitution fund fine of $200 pursuant to

                                              3
section 1202.4, and pay restitution of $719 to Costco. Additionally, the court imposed
and suspended a revocation restitution fine of $200 pursuant to section 1202.45. All
other fines, fees, and assessments were waived. The court discharged defendant from
parole, denied probation, and ordered that defendant be subject to community
supervision.
                                    III. DISCUSSION
       Defendant filed a timely notice of appeal from the trial court’s November 10, 2014
sentencing order. On appeal, defendant argues that the trial court erred in failing to apply
his excess custody credits to his restitution fine of $200, which would completely satisfy
his obligation to pay a restitution fine. We will begin our evaluation with a brief
summary of the provisions of Proposition 47.
       A. Proposition 47
       On November 4, 2014, the voters enacted Proposition 47, which reclassified
certain felony drug and theft related offenses as misdemeanors and enacted a new
statutory provision, section 1170.18, whereby a person serving a felony sentence for the
reclassified offenses may petition for a recall of his or her sentence. (§ 1170.18,
subd. (a).)
       Section 1170.18 applies to “[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’) had this act been in
effect at the time of the offense.” (§ 1170.18, subd. (a).) Under section 1170.18,
subdivision (a), such a person “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, . . .
as those sections have been amended or added by this act.” Section 1170.18,
subdivision (b) specifies the procedure for a trial court to follow “[u]pon receiving a
petition under subdivision (a).”

                                              4
       Proposition 47 also provides a remedy by which “[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 have his or her felony conviction or convictions designated as
misdemeanors. (§ 1170.18, subd. (f).) Such a person “may file an application before the
trial court that entered the judgment of conviction in his or her case” (ibid.), and “[i]f the
application satisfies the criteria . . . , the court shall designate the felony offense or
offenses as a misdemeanor” (id., subd. (g)).
       As to other rights and remedies, Proposition 47, as codified at section 1170.18,
subdivision (m), provides that “[n]othing in this section is intended to diminish or
abrogate any rights or remedies otherwise available to the petitioner or applicant.” We
therefore turn to an overview of the right formerly provided by section 2900.5,
subdivision (a), to the application of excess custody credits to a restitution fine.
       B. Application of Excess Custody Credits to a Restitution Fine
       “[S]ection 1202.4, subdivision (b) requires every person convicted of a crime to
pay a restitution fine: ‘In every case where a person is convicted of a crime, the court
shall impose a separate and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so, and states those reasons on the record.’ A
restitution fine is not paid by the defendant directly to the victim. Instead, it ‘shall be
deposited in the Restitution Fund in the State Treasury’ (§ 1202.4, subd. (e)), from which
crime victims may obtain compensation through an application process (see Gov. Code,
§§ 13950-13960).” (People v. Villalobos (2012) 54 Cal.4th 177, 181.)
       Under section 2900.5, subdivision (a), a defendant’s excess custody credits may
be applied to reduce the amount of certain court-ordered fines. At the time of defendant’s
offense on January 26, 2013, former section 2900.5, subdivision (a) provided that excess
custody credits could be applied to a restitution fine: “In all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody, . . . all

                                                5
days of custody of the defendant, . . . shall be credited upon his or her term of
imprisonment, or credited to any fine on a proportional basis, including, but not limited
to, base fines and restitution fines, which 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.
If the total number of days in custody exceeds the number of days of the term of
imprisonment to be imposed, the entire term of imprisonment shall be deemed to have
been served. In any case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant shall first be applied to
the term of imprisonment imposed, and thereafter the remaining days, if any, shall be
applied to the fine on a proportional basis, including, but not limited to, base fines and
restitution fines.” (Italics and underscoring added.)
       The Legislature amended section 2900.5, subdivision (a) in July 2013 by
eliminating restitution fines from the fines to which excess custody credits may be
applied. (Stats. 2013, ch. 59, § 7.) According to the legislative history for the 2013
amendments to section 2900.5, this amendment was intended to make section 2900.5
consistent with section 1205,3 which provides that a restitution fine may not be satisfied
by the time a defendant is in custody. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Sen. Bill No. 514 (2013-2014 Reg. Sess.) as amended April 23, 2013,
p. 1.) The bill analysis for Senate Bill No. 514 states: “This bill clarifies that [a] term of
imprisonment cannot satisfy a restitution fine.” (Ibid.)
       Section 2900.5, subdivision (a) currently provides in pertinent part: “In all felony
and misdemeanor convictions, either by plea or by verdict, when the defendant has been


       3
         Section 1205, subdivision (a) provides in pertinent part: “A defendant held in
custody for nonpayment of a fine shall be entitled to credit on the fine for each day he
or she is held in custody, at the rate specified in the judgment.” Subdivision (f) of
section 1205 provides: “This section shall not apply to restitution fines and restitution
orders.”


                                              6
in custody, . . . all days of custody of the defendant, . . . shall be credited upon his or her
term of imprisonment, or 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. If the total number
of days in custody exceeds the number of days of the term of imprisonment to be
imposed, the entire term of imprisonment shall be deemed to have been served. In any
case where the court has imposed both a prison or jail term of imprisonment and a fine,
any days to be credited to the defendant shall first be applied to the term of imprisonment
imposed, and thereafter the remaining days, if any, shall be applied to the fine, including,
but not limited to, base fines, on a proportional basis.” (Italics and underscoring added.)
       We next consider whether, under these statutory provisions, defendant is entitled
to have his excess custody credits applied to his restitution fine.
       C. Analysis
       According to defendant, he has excess custody credits in the amount of 297 days,
calculated by subtracting his jail term of 180 days from his total credit of 477 days.
Defendant contends that pursuant to section 2900.5, subdivision (a), his excess custody
credits should be applied to his $200 restitution fine at the rate of $30 per day, which
would “ ‘zero out’ the $200 fine.” Although defendant admits that he did not request this
remedy at the time of the November 10, 2014 resentencing hearing, he argues that the
trial court’s error in failing to apply his excess custody credits to his restitution fine
constitutes an unauthorized sentence that is not forfeited by failure to object below.
       In their respondent’s brief, the People conceded that under section 2900.5,
subdivision (a), defendant is entitled to have his excess custody credits applied to his
$200 restitution fine. The People relied on the decision in People v. Morales (2015)
238 Cal.App.4th 42, review granted August 26, 2015, S228030. In a supplemental letter
brief, the People withdrew their concession based on the more recent decision in
People v. McCoy (2015) 239 Cal.App.4th 431, review granted October 14, 2015,

                                               7
S229296 (McCoy). The People now assert that the McCoy decision correctly determined
that under the current version of section 2900.5, subdivision (a), excess custody credits
may not be applied to satisfy a restitution fine. The People do not raise any issue
regarding forfeiture in either their supplemental letter brief or their respondent’s brief.
       In reply, defendant argues that under the ex post facto clauses of the California
Constitution (Cal. Const., art. I, § 9) and the United States Constitution (U.S. Const.,
art I, § 10), he is entitled to apply his excess custody credits to his restitution fine
pursuant to the version of section 2900.5, subdivision (a) in effect at the time of his
offense in January 2013.
       Our resolution of the issue is guided by the California Supreme Court’s decision in
People v. Souza (2012) 54 Cal.4th 90 (Souza), which states: “It is well established that
the imposition of restitution fines constitutes punishment, and therefore is subject to the
proscriptions of the ex post facto clause and other constitutional provisions. [Citations.]”
(Id. at p. 143.) In Souza, our Supreme Court determined that the amount of the restitution
fine imposed on the defendant exceeded the statutory maximum at the time of his
offenses, and therefore imposition of the restitution fine violated the ex post facto clause
of the United States Constitution. (Ibid.)
       Under Souza, the ex post facto clause applies to defendant’s $200 restitution fine,
and therefore the restitution fine is governed by the statutes in effect at the time of his
offense. (See Souza, supra, 54 Cal.4th at p. 143.) As we have noted, when defendant
committed his crime on January 26, 2013, former section 2900.5, subdivision (a)
provided that excess custody credits should be applied to a restitution fine: “In all felony
and misdemeanor convictions, either by plea or by verdict, when the defendant has been
in custody, . . . all days of custody of the defendant, . . . shall be credited upon his or her
term of imprisonment, or credited to any fine on a proportional basis, including, but not
limited to, base fines and restitution fines, which 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

                                                8
sentence. If the total number of days in custody exceeds the number of days of the term
of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have
been served. In any case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant shall first be applied to
the term of imprisonment imposed, and thereafter the remaining days, if any, shall be
applied to the fine on a proportional basis, including, but not limited to, base fines and
restitution fines.” (Italics and underscoring added; see also People v. Robinson (2012)
209 Cal.App.4th 401, 406 [former section 2900.5, subdivision (a) applies to restitution
fines].)
       Consequently, we agree with defendant that his excess custody credits should be
applied to his $200 restitution fine pursuant to former section 2900.5, subdivision (a).
The People do not dispute defendant’s calculation that he has excess custody credit of
297 days, which, when multiplied by the rate of $30 per day, far exceeds $200.
Therefore, defendant’s court-ordered obligation to pay a section 1202.4 restitution fine
of $200 must be deemed satisfied by the application of his excess custody credit. In the
interests of judicial economy, rather than remanding the matter, we will direct the trial
court to modify the judgment to reflect that the $200 restitution fine has been satisfied in
full pursuant to former section 2900.5, subdivision (a).
       The reasoning in the decision in McCoy, supra, 239 Cal.App.4th 431 does not
compel a different conclusion, since no issue was raised in McCoy regarding the
application of the ex post facto clause. “An appellate decision is not authority for
everything said in the court’s opinion but only ‘for the points actually involved and
actually decided.’ [Citations.]” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
                                   IV. DISPOSITION
       The judgment is ordered modified by deeming the $200 restitution fine imposed
under section 1202.4 to have been satisfied in full by defendant’s excess days spent in
custody pursuant to former section 2900.5, subdivision (a). As so modified, the judgment

                                              9
is affirmed. The clerk of the superior court is directed to modify the abstract of judgment
to reflect this modification and to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation.




                                            10
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P. J.




__________________________
MIHARA, J.




People v. Morris
H041781
Filed 11/12/15
                          CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H041781
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1350962)

        v.

RONALD DEAN MORRIS,

        Defendant and Appellant.



THE COURT:
        The opinion in the above-entitled matter filed on November 3, 2015, was not
certified for publication in the Official Reports. The Sixth District Appellate Program
has requested the opinion be certified for publication. It appears that the opinion meets
the standards set forth in California Rules of Court, rules 8.1105(c). The request is
GRANTED. The opinion is ordered published in the Official Reports.



                                    _________________________________________
                                    BAMATTRE-MANOUKIAN, J.


                                    __________________________________________
                                    ELIA, ACTING P.J.


                                    ___________________________________________
                                    MIHARA, J.
Trial Court:                             Santa Clara County Superior Court
                                         Superior Court No.: C1350962


Trial Judge:                             Hon. Linda R. Clark


Attorney for Defendant and Appellant:    Sixth District Appellate Program
Ronald Dean Morris                       William M. Robinson


Attorney for Plaintiff and Respondent:   Office of the Attorney General
The People                               Eric D. Share, Supervising Deputy Attorney General




People v. Morris
H041781
