Filed 12/28/15 P. v. Aguilera 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051195

         v.                                                            (Super. Ct. No. 14NF0597)

ARTHUR GALVAN AGUILERA,                                                OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Vickie Hix,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for
Plaintiff and Respondent.
                                          *                  *                  *
              In April 2014, Arthur Galvan Aguilera pleaded guilty to a January 2014
complaint for felony possession of methamphetamine (former Health & Saf. Code,
§ 11377, subd. (a)) and misdemeanor possession of instruments for using the drug (id.,
§ 11364.1, subd. (a)), and he admitted allegations he suffered two prior strike convictions
for serious or violent crimes (Pen. Code, §§ 667, subds. (d), (e)(2)(A); 1170.12,
subds. (b), (c)(2)(A); all further statutory references are to this code) and that he failed to
remain out of custody for five years after serving two prior prison terms (§ 667.5,
subd. (b)). At sentencing, the trial court struck the strike and prison prior allegations, and
sentenced defendant to the low term of 16 months in prison, with 286 days of custody
credits.
              Approximately eight months later, in December 2014, defendant petitioned
the court to reduce under Proposition 47 his felony conviction to a misdemeanor, which
the court granted (§ 1170.18, subd. (a)), and sentenced defendant to 496 days in jail, with
credit for 496 days. The trial court also imposed a one-year parole term, and defendant’s
sole contention on appeal is that he earned an unspecified number of custody credits
beyond 496 days, which he argues the trial court should have applied as excess credits to
“delete any parole period.”
              During the pendency of this appeal, this court and Division Six of the
Second District Court of Appeal have filed opinions disagreeing whether such credits
apply to reduce any parole period imposed under Proposition 47, and the Supreme Court
has granted review in each case. (Compare People v. Armogeda (2015) 240 Cal.App.4th
1039, review granted Dec. 9, 2015, S230374, and People v. Morales (2015)
238 Cal.App.4th 42, review granted Aug. 26, 2015, S228030, with People v. McCoy
(2015) 239 Cal.App.4th 431, review granted Oct. 14, 2015, S229296 and People v.
Hickman (2015) 237 Cal.App.4th 984, review granted Aug. 26, 2015, S227964.)
              The Supreme Court will resolve the matter, but in the meantime we must
decide defendant’s case and it remains this court’s unanimous view that such credits are

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available. We note that in relying on its own precedent in the very different context of
resentencing third strike offenders under Proposition 36 (People v. Espinosa (2014)
226 Cal.App.4th 635), Division Six of the Second District has glossed over differences
the electorate specified in Proposition 47 for resentencing “‘low-level’” drug and petty
theft offenders (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1311). In particular,
unlike in Proposition 36’s resentencing mechanism (§ 1170.126), the electorate in
Proposition 47 expressly directed both that resentenced defendants “shall be given credit
for time served” (§ 1170.18, subd. (d)) and they are entitled to “any rights or remedies
otherwise available” (§ 1170.18, subd. (m)). In our view, under this express language the
excess custody credits for time served that are usually available under existing law
(§ 2900.5) are available to defendants resentenced under Proposition 47.
              We therefore reverse the trial court’s sentencing order and remand for the
court to calculate and apply any excess custody credits to reduce or eliminate defendant’s
parole period.




                                                 ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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