Filed 8/6/20
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                       FIRST APPELLATE DISTRICT

                                DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,      A158305

v.                                 (City and County of San Francisco
MICHAEL H. WILSON,                 Super. Ct. No. SCN197443)

    Defendant and Appellant.

       Senate Bill No. 1437 (Stats. 2018, ch. 1015), effective January 1, 2019,
made changes to Penal Code1 sections 188 and 189 governing accomplice
liability for felony murder and murder under the natural and probable
consequences theory. As part of the bill, the Legislature enacted
section 1170.95, which allows defendants who could not be convicted of first
or second degree murder under the new law to file a petition to seek to vacate
their murder conviction and be resentenced on any remaining counts in the
same manner “as if the petitioner had not been previously . . . sentenced,
provided the new sentence, if any, is not greater than the initial sentence.”
(Id., subds. (a), (b), (d)(1), (3).) “A person who is resentenced pursuant to this
section shall be given credit for time served. The judge may order the
petitioner to be subject to parole supervision for up to three years following
the completion of the sentence.” (§ 1170.95, subd. (g).)


1
       All further unspecified statutory references are to the Penal Code.


                                        1
      Wilson filed a petition for resentencing under section 1170.95. The
trial court vacated his murder conviction, resentenced him to time served on
his robbery conviction and related sentence enhancement, and placed him on
parole supervision for two years. On appeal, Wilson challenges the judgment
and seeks immediate release from parole supervision on the basis that the
trial court was mandated, but failed, to apply his excess custody credits to
eliminate the two-year parole period.
      We conclude the trial court is not required to mechanically apply excess
custody credits to reduce or eliminate the parole period imposed at a
resentencing pursuant section 1170.95. Instead, and notwithstanding excess
custody credits, the court may exercise its discretion when deciding whether
to order a period of parole.
      Accordingly, we affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
      In 2006, a jury found Wilson guilty of first-degree murder (§ 187) and
second-degree robbery (§ 212.5, subd. (c)). The trial court found Wilson had
sustained two prior strike convictions within the meaning of the Three
Strikes Law (§ 667, subds. (d), (e)), and the prosecution dismissed a third
prior strike conviction under section 1385. The court sentenced Wilson to an
aggregate term of 50 years to life with the possibility of parole, and stayed
consecutive sentences for the second-degree robbery conviction and the
related sentence enhancement under section 654. We affirmed the judgment
in an unpublished opinion (People v. Wilson (Oct. 22, 2008, A116576)
[nonpub. opn.]), and our Supreme Court denied review (People v. Wilson (Jan.
14, 2009, S168492)).
      Following a contested hearing, the trial court granted Wilson’s section
1170.95 petition. On August 19, 2019, the court vacated the first-degree



                                        2
murder conviction, imposed sentence on the second-degree robbery conviction
of five years in prison, doubled to ten years for the related sentence
enhancement, and ordered two years of parole supervision.
      Wilson had credit for 6,771 days of time served on his vacated murder
conviction, which he asked the court to apply to both the new term of
imprisonment and the parole period. The trial court granted the request in
part, and ordered that Wilson would not serve any time in custody, but would
serve the full term of two years on parole. The court explained that, because
Wilson had a significant criminal history, a two year period of parole was
appropriate despite his having spent 16 years in custody.
      Wilson timely appealed from the August 19, 2019 judgment.
                                  DISCUSSION
I.    General Principles

      Statutory interpretation is “ ‘an issue of law, which we review de
novo.’ ” (Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1183.) “Our fundamental task . . . is to determine the
Legislature’s intent so as to effectuate the law’s purpose. We first examine
the statutory language, giving it a plain and commonsense meaning.”
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004)
34 Cal.4th 733, 737.) “If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory language
permits more than one reasonable interpretation, courts may consider other
aids, such as the statute’s purpose, legislative history, and public policy.”
(Ibid.)




                                        3
II.   The Trial Court Is Not Mandated to Apply Excess Custody
      Credits to Reduce or Eliminate a Period of Parole Imposed At
      Resentencing Under Section 1170.95

      Wilson contends the trial court erred as a matter of law in not applying
his excess custody credits to the parole period when resentencing him under
section 1170.95. He relies primarily on the general rule that, in the context
of original sentencing, excess presentence credits can reduce a period of
parole. (See, e.g., In re Sosa (1980) 102 Cal.App.3d 1002, 1005 [presentence
credit applies against both the imprisonment and the parole portion of the
sentence]; § 2900.5, subd. (a) [the entire prison term is deemed to have been
served where the total time in custody exceeds the prison term]; § 2900.5,
subd. (c) [“For the purposes of this section, ‘term of imprisonment’ includes
any period of imprisonment . . . ordered by a court” “and also includes . . . any
period of imprisonment and parole, prior to discharge”], italics added.) He
also relies heavily on section 1170 subdivision (a)(3) (§ 1170(a)(3)), which
provides that the entire sentence shall be deemed to have been served where
the pre-custody credit exceeds the imposed sentence, and that the defendant
“shall serve an applicable period of parole . . . unless the in-custody credits
equal the total sentence, including both confinement time and period of
parole.” (Italics added.) We conclude that these general principles regarding
the applicability of custody credits towards parole periods do not apply to
resentencing under section 1170.95.
      People v. Morales (2016) 63 Cal.4th 399 (Morales) is instructive. There,
our Supreme Court interpreted section 1170.18, a resentencing provision
enacted as part of Proposition 47, which reduced certain non-serious,
nonviolent crimes from felonies to misdemeanors and allowed persons with a
felony sentence to petition for a misdemeanor sentence. (Morales, supra, 63
Cal.4th at p. 403.) Under section 1170.18 (Proposition 47 statute), the trial


                                         4
court reduced Morales’ felony drug offense conviction to a misdemeanor,
resentenced him to time served, imposed a one-year period of parole
supervision, and declined to apply excess custody credits to the parole period.
(Morales, supra, 63 Cal.4th at p. 403.) The Supreme Court affirmed,
concluding that credit for time served does not reduce a parole period
imposed at resentencing under Proposition 47. (Ibid.)
      The Supreme Court examined the words in subdivision (d) of the
Proposition 47 statute, which states in relevant part: “ ‘A person who is
resentenced pursuant to [this section] 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.’ ” (Morales, supra, 63 Cal.4th at p. 404.)
The Supreme Court compared the statute to section 2900.5, whose legislative
purpose was to eliminate the unequal treatment suffered by indigent
defendants who serve a longer overall confinement than wealthier defendants
because of their inability to post bail. (Morales, supra, at p. 405.) To that
end, “section 2900.5 states two things . . .: (1) the person is entitled to credit
for time served, and (2) the credit can reduce or eliminate the period of
parole.” (Morales, supra, at p. 406.) The Proposition 47 statute, on the other
hand, “states the first of these but not the second.” (Morales, supra, at p.
406.) Noting that the Proposition 47 statute “[i]nstead . . . states the person
is to receive credit for time served and is subject to parole,” the Supreme
Court concluded that the words “credit for time served” in the Proposition 47
statute did not encompass the broader principles set forth in section 2900.5
that “credit for time served” can also reduce or eliminate any period of parole.
(Morales, supra, 63 Cal.4th at p. 406.) The Supreme Court concluded




                                         5
Morales was entitled to credit for time served and was also subject to parole
even though there were excess custody credits. (Ibid.)
      In reaching this conclusion, the Supreme Court assumed that the
voters had existing law in mind when they enacted Proposition 47, and stated
it was “far from clear” that the voters intended “to make the law in this
regard identical to section 2900.5.” (Morales, supra, 63 Cal.4th at p. 406.) “If
we assume the voters had in mind existing law, we may also assume they had
in mind that the statute concerning presentence credit in ordinary cases (i.e.,
§ 2900.5) states both that the person is entitled to credit for time served and
that the credit can reduce or eliminate any period of parole. We may also
assume the voters knew that the purpose behind [section 2900.5] was to
equalize the treatment of those who could and those who could not post bail.
Because the proposition the voters were considering expressed the first part
but not the second part of section 2900.5’s rule, and the purpose behind that
rule is irrelevant to resentencing under Proposition 47, no reason appears to
assume the voters believed the proposition would include what it did not
state, namely, that credit for time served could reduce the period of parole.”
(Morales, supra, at p. 406.) In addition, and further assuming the seemingly
mandatory statutory language [in the Proposition 47 statute] was ambiguous,
the Supreme Court found the ballot materials concerning Proposition 47 did
not support a conclusion that the voters intended to curtail or eliminate the
court’s discretion to impose parole. (Morales, supra, at pp. 406-407.)
      Morales argued he was entitled to have his excess credit applied
towards his parole period because the Proposition 47 statute does not require
a defendant to serve a period of parole; rather, it provides only that a
defendant is subject to parole. The Supreme Court rejected this argument,
stating: “[G]iven the difference in language and purpose between [the



                                        6
Proposition 47 statute] and 2900.5, as well as the voters’ likely
understanding of Proposition 47’s meaning, we do not give [the words
“subject to parole”] such a narrow interpretation. In this context, the most
natural meaning of the words ‘subject to parole’ is that the person is subject
to parole rather than some other form of supervision such as postrelease
community supervision under the Postrelease Community Supervision Act of
2011 (§ 3450 et seq.) [Citation.] The words ‘subject to’ also reinforce the
statute’s grant of discretion to the trial court not to impose parole. The
words, however, do not limit the court’s discretion whenever excess custody
credits exist.” (Morales, supra, at p. 407.) The Supreme Court noted that, if
excess custody credits were required to be applied, “parole [would] be reduced
or eliminated in many of the cases that [the Proposition 47 statute] governs,”
as many individuals being resentenced would have been serving substantial
felony sentences. (Morales, supra, 63 Cal.4th at p. 405.) As a result, “the
court’s discretion will be curtailed or eliminated,” thereby “undermin[ing] the
trial court’s discretion in many cases.” (Ibid.)
      Similar to the Proposition 47 statute, the provision before us,
section 1170.95 subdivision (g) (§1170.95(g)), states: “A person who is
resentenced pursuant to this section shall be given credit for time served.
The judge may order the petitioner to be subject to parole supervision for up
to three years following the completion of the sentence.” Thus, like the
Proposition 47 statute, section 1170.95(g) also states that (1) the person is
entitled to credit for time served and (2) the court may order a parole period.
Section 1170.95(g) does not state—as section 2900.5 states—that the credit
may be used to reduce or eliminate any parole period the court may impose.
The reasons set forth by the Supreme Court in support of its conclusion that
the words “credit for time served” in the Proposition 47 statute do not



                                        7
mandate the use of excess credit to reduce or eliminate the parole period are
equally applicable to our analysis of the same words in section 1170.95(g).
      Moreover, there is no legislative history supporting Wilson’s position.
The Senate Rules Committee’s digest of Senate Bill No. 1437, as amended,
informed the legislators that “Assembly Amendments” included a provision to
“permit judges to impose a term of parole supervision upon completion of the
term imposed under any resentencing,” and the bill as amended provided, in
pertinent part: “18) Requires a person resentenced pursuant to the
provisions of this bill to receive credit for time served. 19) Allows the court to
order a person granted relief to be subject to parole supervision for up to
three years following the completion of the sentence.” (Sen. Rules
Committee, Sen. Floor Anal. of Sen. Bill No. 1437, amended Aug. 20, 2018
(2017-2018 Reg. Sess., Aug. 20, 2018) at pp. 1, 2, 3, 5.) “The addition of the
second sentence [in section 1170.95(g)] suggests the court may order the
supervision period even though petitioner’s credits exceed the new sentence
and the three-year period of parole.” (Couzens, et al., Sentencing Cal. Crimes
(The Rutter Group 2019) [¶] 23.51(K)(2).)
      We note that section 1170.95 was enacted as part of the new law
governing accomplice liability for felony murder and murder under the
natural and probable consequences theory. While its general objective is to
treat offenders with uniformity, it also serves the “objective of parole”—to
provide “supervision and counseling, to assist in the parolee’s transition from
imprisonment to discharge and reintegration into society.” (In re Roberts
(2005) 36 Cal.4th 579, 589-590.) To that end, the first sentence of section
1170.95 states that at resentencing a defendant is entitled to credit for time
served to be applied against a new sentence on any remaining charges,
whereas the second sentence permits the court to impose a period of parole at



                                        8
the completion of the new sentence. Therefore, it is consistent with the
legislative purpose behind section 1170.95 to allow a court to impose a parole
period even where excess custody credits exist. Finally, as in Morales, to read
section 1170.95 as Wilson urges us to do would result in parole being
eliminated or reduced in many cases governed by section 1170.95 as
defendants seeking relief under that section will have been serving lengthy
felony sentences for murder by the time they petition for resentencing.
(Morales, supra, at p. 405; see also Couzens, et al., Sentencing Cal. Crimes
(The Rutter Group 2019) [¶ 23.51(B) [a defendant may file a section 1170.95
petition “with no deadline for seeking relief” and “regardless of the age of the
crime or conviction”].)
      Wilson argues Morales is inapplicable because the Supreme Court did
not discuss section 1170(a)(3) which, as noted, provides that “the person is
entitled to credit for time served and that the credit can reduce or eliminate
any period of parole.” The Supreme Court’s discussion of section 2900.5,
however, is equally applicable to section 1170(a)(3) as both sections are
identical as to the purpose and rules concerning the application of credit for
time served to reduce or eliminate a term of imprisonment and parole. (See
In re Sosa, supra, 103 Cal.App.3d at pp. 1005-1006 [§§1170(a)(2)[now (a)(3)]
and 2900.5 enacted to effectuate the same purpose under identical rules].) As
we must assume the Legislature had in mind section 1170(a)(3) when
enacting section 1170.95, it was aware of section 1170(a)(3)'s rule allowing
credit for time served and credit to reduce or eliminate any period of parole.
We may further assume the Legislature was aware that the purpose behind
the rule in section 1170(a)(3), like section 2900.5, was “to equalize the
treatment of . . . those who could not post bail.” (Morales, supra, 63 Cal.4th
at p. 406.) Consequently, had the Legislature not intended to leave the issue



                                        9
of parole to the trial court’s discretion in section 1170.95, it could have easily
made specific reference to section 1170(a)(3) or otherwise modified the court’s
right to impose a parole period. (See In re Ethan C. (2012) 54 Cal.4th 610,
638 [“When language is included in one portion of a statute, its omission from
a different portion addressing a similar subject suggests that the omission
was purposeful ”]; People v. Roach (2016) 247 Cal.App.4th 178, 185
[“Additional restrictions on a trial court’s authority at resentencing could
have been included in section 1170.18, but were not”].) Instead, the
Legislature gave the trial court unfettered discretion to impose a period of
parole at the completion of any sentence imposed under section 1170.95.
      Based on both the statutory language and legislative history, the only
reasonable reading of section 1170.95 is that the trial court has discretion to
impose a period of parole and that the court’s discretion is not constrained by
excess custody credits. A contrary interpretation would require us to add
words to section 1170.95 that do not currently exist. We will not do this, as
we are to ascertain and declare “what the statute contains, not to change its
scope by reading into it language it does not contain . . . . We may not rewrite
the statute to conform to an assumed intention that does not appear in its
language.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)
      We are also not persuaded by Wilson’s contention that absurd
consequences will occur as a result of leaving parole to the court’s discretion.
Wilson’s reliance on People v. Steward (2018) 20 Cal.App.5th 407 (Steward) is
misplaced as Steward involved the application of excess custody credits to
post release community supervision (PRCS) at a resentencing pursuant to
Proposition 47. (Id. at p. 413; 1170.95.) Because Proposition 47 did not
mention PRCS, the Steward court distinguished Morales, supra, 63 Cal.4th
399, and held that generally applicable sentencing procedures under section



                                        10
1170 guided its resolution of the matter. (Steward, supra, at p. 413.) To
preclude the use of excess custody credits to reduce a period of PRCS “would
lead to patently unfair and absurd results: trial courts would be required to
advise defendants, contrary to law, that excess presentence custody credits
reduce a period of PRCS. It is not difficult to envision a scenario in which a
defendant, in reliance of this advisement, understands that his or her PRCS
term has been deemed served and does not report to the county probation
department upon release, and is subsequently arrested for failing to report to
probation as required by the terms of his or her PRCS. We decline to place
defendants—and trial courts—in such a position.” (Id. at pp. 425, 426.) The
problem envisioned in Steward is simply not relevant to a resentencing under
section 1170.95. As occurred here, the trial court advised Wilson that his
6,771 days of credit for time served would be applied so that he “will not have
to serve any actual time in custody, but he will serve the full term of two
years” on parole and he was directed to report to the parole office at a specific
address.
       For all these reasons, we see no basis to set aside the trial court’s
refusal to apply excess custody credits to eliminate the period of parole
imposed at the resentencing under section 1170.95.
III.   Discretionary Application of Excess Custody Credits to the
       Parole Period Imposed at Resentencing under Section 1170.95
       Does Not Violate Equal Protection

       We find no merit to Wilson’s contention that the equal protection
provisions of the federal and state Constitutions (U.S. Const., 14th Amend.,
§ 1; Cal. Const., art. I, § 7, subd. (a)) mandate that section 1170.95(g) be read
to require application of his excess custody credits to eliminate the two years
of parole.




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       “The concept of equal treatment under the laws means that persons
similarly situated regarding the legitimate purpose of the law should receive
like treatment. [Citation.] ‘ “The first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups in an unequal
manner.” [Citation.] This initial inquiry is not whether persons are similarly
situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.” ’ [Citations.]” (Morales, supra, 63 Cal.4th at
p. 408.)
      Wilson argues that once his murder conviction was vacated, he was
similarly situated to other defendants convicted of second-degree robbery,
and was therefore entitled to be similarly sentenced under section 1170(a)(3),
which allows excess custody credits to be applied against a period of parole.
However, Wilson is not similarly situated to other defendants who have been
convicted of second-degree robbery and sentenced under section 1170(a)(3).
The only reason Wilson was entitled to resentencing was due to the
Legislature’s inclusion of section 1170.95 in Senate Bill No. 1437, an “act of
lenity” (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156), allowing for the
retroactive application of the new law governing accomplice liability for
felony murder and murder under the natural and probable consequences
theory for defendants already serving valid sentences for murder. As the
trial court here explained, the retroactive effect of Senate Bill No. 1437 made
it possible for Wilson not to die in prison “which is what would have
happened” given his 50 years-to-life sentence. The Legislature did not have
to allow Senate Bill No. 1437 “to change that sentence at all.” (Morales,
supra, 63 Cal.4th at pp. 408-409.) “Sentencing changes ameliorating
punishment need not be given retroactive effect. ‘ “The Legislature properly



                                       12
may specify that such statutes are prospective only, to assure that penal laws
will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.” ’ ” (Id. at p. 409, quoting in part People v.
Floyd (2003) 31 Cal.4th 179, 188, quoting In re Kapperman (1974) 11 Cal.3d
542, 546, and citing People v. Mora (2013) 214 Cal.App.4th 1477, 1484
(Mora).)
      By adding section 1170.95 in Senate Bill No. 1437, the Legislature
allowed certain defendants convicted of murder to receive “the benefit of a
favorable resentencing. But the [Legislature] imposed a price for that
benefit”– a period of parole for up to three years at the completion of the new
sentence at the discretion of the trial court. (Morales, supra, 63 Cal.4th at
p. 409.) “Equal protection of the laws does not mean a person can claim the
benefits of an ameliorative change in the law but refuse to accept the price.
[The Legislature] could rationally conclude that those who receive the benefit
of a new [sentence] should at least be placed on parole when released”
following the completion of that sentence. (Ibid.)
      We also reject Wilson’s argument that there is no rational reason for
the purported disparate treatment between defendants resentenced under
section 1170.95 and those sentenced under section 1170(a)(3). “If the
classification does not involve a suspect class, legislation is presumed to be
valid under the equal protection clause if the statutory classification is
rationally related to a legitimate state interest. [Citations.]” (Mora, supra,
214 Cal.App.4th at p. 1483.) The Legislature could rationally conclude that a
defendant who was resentenced under section 1170.95 should be subject to a
period of parole, at the discretion of the trial court, notwithstanding the
existence of excess custody credits.




                                       13
      Accordingly, we conclude Wilson was not denied equal protection of the
law when the trial court refused to apply excess custody credits to eliminate
the period of parole imposed at the resentencing under section 1170.95.
                                DISPOSITION
      The August 19, 2019 judgment is affirmed.




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                                 _________________________
                                 Petrou, J.


WE CONCUR:


_________________________
Fujisaki, Acting P.J.


_________________________
Jackson, J.




A158305/People v. Wilson


                            15
Trial Court:        San Francisco County Superior Court

Trial Judge:        Hon. John K. Stewart

Counsel:            Office of Attorney General, Xavier Becerra, Attorney
               General, Lance E. Winters, Chief Assistant Attorney General,
               Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K.
               Schalit, Supervising Deputy Attorney General, Rene A. Chacon,
               Deputy Attorney General, for Plaintiffs and Appellants.


                    First District Appellant Project, I. Richard Braucher, for
               Defendant and Appellant.




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