Filed 7/21/15 P. v. Hernandez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G051160
     Plaintiff and Respondent,
                                                                       (Super. Ct. Nos. 12CF1489, R-01735)
         v.
                                                                       OPINION
RAUL HERNANDEZ,

     Defendant and Appellant.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed
in part, reversed in part, and remanded with directions.
                   Christian C. Buckley, 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, Charles C. Ragland and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Raul Hernandez contends that under the voters’ recent enactment of
Proposition 47, “The Safe Neighborhoods and Schools Act” (codified as pertinent here in
Penal Code section 1170.18; all further undesignated statutory references are to this
code), the trial court should have granted his application to designate his felony drug
possession offense (Health & Saf. Code, § 11377) as a misdemeanor because he had
completed his two-year felony sentence (see § 1170.18, subd. (f)), rather than reducing
the conviction to a misdemeanor by recalling his sentence and resentencing him to
misdemeanor punishment that included a year on parole. (§ 1170.18, subds. (a), (b), (d).)
As we recently explained in People v. Morales (June 26, 2015, G051142) __ Cal.App. __
(Morales), a person who is still under postrelease community supervision (PRCS, a
parole analogue under county instead of state supervision; see § 3451) has not completed
his or her “sentence” within the meaning of Proposition 47. Consequently, because
Hernandez was still on PRCS at the time of his application, Proposition 47’s recall and
resentencing procedure applied (§ 1170.18, subds. (a), (b), (d)), rather than the
redesignation procedure that would have left him exempt from parole (id., subd. (f).) As
we explained in Morales, however, a defendant resentenced under Proposition 47 is
entitled to apply excess custody credits, if any, to reduce or eliminate any applicable
parole period upon resentencing. (Morales, supra.) We therefore affirm in part, reverse
in part, and remand with directions to the trial court to calculate and apply Hernandez’s
credits.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              On May 18, 2012, the district attorney filed a complaint charging
Hernandez with felony possession of methamphetamine (Health & Saf. Code, § 11377;
count 1), misdemeanor evading a peace officer (Veh. Code, § 2800.1, subd. (a); count 2),
and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code,
§ 11364.1, subd. (a); count 3). The complaint further alleged Hernandez had a prior

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strike conviction (§§ 667, subds. (d), ( e)(1) & 1170.12, subds. (b), (c)(l)), and had served
three prior prison terms (§ 667.5, subd. (b)). On June 28, 2012, Hernandez pleaded guilty
to all counts and admitted the strike prior and prison priors. As the factual basis for his
plea, Hernandez admitted that on May 16, 2012, he had a usable quantity of
methamphetamine and narcotics paraphernalia in his vehicle and when the police tried to
stop him for a Vehicle Code violation, he continued to drive with the intention of evading
the police.
              The court sentenced Hernandez to two years in state prison, consisting of
two years on count 1, and suspended jail sentences on counts 2 and 3. The court struck
the strike prior and the prison priors, and awarded Hernandez 88 days of presentence
custody credit consisting of 44 days each of actual credit and conduct credit. The court
imposed restitution and parole revocation fines of $240 each on count 1, and stayed the
latter fine. The court also ordered Hernandez to register for a narcotics offense under
Health and Safety Code section 11590. The sheriff immediately took Hernandez into
custody, and it is undisputed that through actual time served and conduct credits he
successfully completed his two-year prison sentence and was released on PRCS.
              On November 24, 2014, Hernandez filed an application in the trial court to
have his conviction for possession of methamphetamine designated as a misdemeanor
under section 1170.18, subdivision (f). At the hearing, defense counsel explained
Hernandez had completed his prison sentence, but acknowledged he remained on PRCS,
which prompted the prosecutor to argue Hernandez was entitled to Proposition 47 relief
under section 1170.18, subdivision (a), rather than subdivision (f). In other words,
subdivision (a) authorized the court to recall Hernandez’s sentence, reduce his felony
drug possession conviction to a misdemeanor, and resentence him for the misdemeanor
(id., subd. (b)). The trial court agreed and resentenced Hernandez to a one-year
misdemeanor jail term. The court awarded Hernandez a total of 183 days of actual credit
and 182 days of conduct credit, for a total of 365 days of credit, placed Hernandez on one

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year of parole under section 1170.18, subdivision (d), and rejected Hernandez’s argument
that the excess year he had served under his two-year felony sentence should be applied
to eliminate his new parole term. Hernandez now appeals.
                                             II
                                       DISCUSSION
              As noted at the outset, our holding in Morales controls this case, and we
therefore address only the three potentially distinguishing features here, namely:
(1) Hernandez’s claim that the trial court erred in ordering the misdemeanor reduction
under the recall and resentencing procedure when he had not sought that relief in the
alternative, but rather had filed only a redesignation application; (2) whether the court in
reducing his sentence to a misdemeanor was required also sua sponte to reduce his fines
to the minimum for misdemeanor offenses; and (3)whether the registration requirement
for felony methamphetamine possession must be stricken as unauthorized for a
misdemeanor. We address each of these claims in turn, and find merit only in the final
contention.
              Hernandez filed his redesignation application under section 1170.18,
subdivision (f), and did not seek in the alternative recall and resentencing under
subdivisions (a), (b), and (d). At oral argument, Hernandez noted that if we were to
conclude (as we have) that he was not eligible for redesignation under subdivision (f), he
does not want the judgment reversed and his felony conviction reinstated. Rather, he
contends the trial court erred in denying his oral motion for a continuance to delay the
court’s consideration and imposition of a one-year parole term on resentencing. He
argues that because he sought only redesignation, he was not prepared to address
resentencing and had not researched any basis for mitigation to reduce his parole term to
months or eliminate it altogether. The trial court observed, however, that “This is your
hearing” and when Hernandez offered nothing in mitigation, proceeded to resentence him
to a misdemeanor term followed by a year of parole supervision. (§ 1170.18, subd. (d).)

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              The trial court did not err in denying a continuance, which requires a
showing of good cause and is committed to the trial court’s sound discretion. (§ 1050;
People v. Doolin (2009) 45 Cal.4th 390, 450.) In arguing for a year of parole, the
prosecutor noted Hernandez’s record included a recent robbery conviction in 2009 and
several PRCS violations resulting in jail time. Defense counsel similarly would have
been generally familiar with Hernandez’s record, and had the opportunity to consult with
Hernandez in preparing the motion, but made no offer of proof below and on appeal
suggests nothing in mitigation to support a continuance. Absent an offer of proof or any
remote indication of potential mitigating factors, the trial court did not err in denying
Hernandez’s unfounded request for a continuance.
              Hernandez argues his fines must be reduced on appeal (see § 1260
[appellate court may correct the judgment]) because at the original sentencing hearing in
June 2012, the trial court imposed the minimum $240 felony restitution fine and
corresponding felony parole revocation fine in the same amount. Hernandez insists we
must strike the $240 fines because, in considering and granting his Proposition 47
redesignation application as a petition to recall and resentence him to a misdemeanor on
the possession offense, the trial court failed to reduce the restitution or revocation fines to
the $120 minimum for a misdemeanor. (§§ 1202.4, subd. (b)(1), 1202.45, subds. (a),
(b).) Hernandez did not argue his fines should be reduced. Because the fines were within
the statutory maximum of $1,000 for a misdemeanor (ibid.), Hernandez’s argument on
appeal that they were unauthorized is without merit. In calculating on remand
Hernandez’s excess credits, if any, the trial court may consider whether they may be
applied proportionally to reduce his fines. (Morena, supra.)
              Finally, Hernandez argues, the Attorney General concedes, and we agree
that the felony methamphetamine possession registration requirement the trial court
originally imposed (Health & Saf. Code, § 11590, subds. (a), (c)) must be stricken. No
registration requirement is authorized for a misdemeanor conviction. (Ibid.)

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                                             III
                                       DISPOSITION
               The matter is remanded to the trial court with instructions to recalculate
defendant’s parole period consistently with this opinion, and to apply any excess credits
against any applicable fines defendant owes. In all other respects the postjudgment order
is affirmed.



                                                   ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




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