Filed 4/6/16 P. v. Burgins 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051752

         v.                                                            (Super. Ct. No. 13WF1940)

STEVEN LEE BURGINS,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Vickie
Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part,
reversed in part and remanded with directions.
                   Richard Power, 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, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              In this Proposition 47 case, defendant Steven Lee Burgins contends the
court erred by failing to count his excess custody credits against the one-year parole
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period the court imposed pursuant to Penal Code section 1170.18, subdivision (d). We
agree the court erred by failing to credit defendant’s excess custody credits against his
parole time. Accordingly, we remand this matter to the trial court for a recalculation of
defendant’s parole period. Furthermore, because we agree with the parties that defendant
is no longer required to register as a drug offender under Health and Safety Code
section 11590, we strike the court’s registration order.


                        FACTS AND PROCEDURAL HISTORY


              In 2013, defendant pleaded guilty to felony possession of concentrated
cannabis (Health & Saf. Code, § 11357, subd. (a) — count 1) and misdemeanor
possession of Clonazepam (Health & Saf. Code, § 11375, subd. (b)(2) — count 2). He
was sentenced to a prison term of 1 year 4 months.
              In April 2015, defendant applied to have his felony conviction designated
as a misdemeanor pursuant to section 1170.18. At the hearing on defendant’s petition,
defense counsel advised the court defendant had been on post-release community
supervision since February 24, 2014.
              The court recalled defendant’s felony sentence and resentenced him to a
misdemeanor under section 1170.18, subdivision (b). The court awarded him actual
custody credits of 249 days and conduct credits of 249 days for a total of 498 days of
credit. The court then sentenced defendant to the 498 days already served. The court
imposed parole for one year pursuant to section 1170.18, subdivision (d). The court did



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

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not reduce defendant’s one-year parole period, even though defense counsel requested the
court to apply defendant’s excess custody credits against the parole period.
              The court ordered defendant to register as a drug offender for a period of
five years.


                                      DISCUSSION

The Court Erred by Failing to Credit Defendant’s Excess Custody Credits Against His
Parole Period
              We continue to adhere to the position this court originally expounded in
People v. Morales, review granted August 26, 2015, S228030, and reaffirmed in People
v. Armogeda, review granted December 9, 2015, S230374, i.e., that when a defendant is
seeking resentencing under Proposition 47 and is subject to parole under section 1170.18,
subdivision (d), the length of his or her parole should be reduced by his or her excess
custody credits. We therefore conclude the trial court erred by failing to apply
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defendant’s excess custody credits against his parole period.


The Order Requiring Defendant to Register As a Drug Offender Must Be Stricken
              Health and Safety Code section 11590, which imposes registration
requirements on persons convicted of specified drug offenses, does not apply to a
conviction of a misdemeanor under Health and Safety Code section 11357. (Health &
Saf., § 11590, subd. (c).) The court therefore erred when it ordered defendant to register.




2
              The court acknowledged that, at the time of defendant’s guilty plea,
execution of sentence on count 2 (defendant’s original misdemeanor conviction) had
been stayed pursuant to section 654, thus reducing defendant’s maximum exposure to
365 days on the original case, apparently resulting in excess custody credits of 133 days
(498 – 365). But we leave it to the trial court to make the exact calculation on remand.

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                                      DISPOSITION


              The matter is remanded to the trial court with instructions to recalculate
defendant’s parole period consistently with this opinion, and to strike the registration
requirement imposed under Health and Safety Code section 11590. The court shall apply
defendant’s excess custody credits against his section 1170.18, subdivision (d) parole
period. In all other respects the judgment is affirmed.




                                                  IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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