Filed 5/27/16 P. v. Vasquez CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G051674
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 13NF2072)
         v.
                                                                       OPINION
JOSEPH VASQUEZ,

     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.
                   Jeanine G. Strong, 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
Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Joseph Anthony Vasquez appeals from the trial court’s Proposition 47
resentencing order. He argues that because he had completed his felony term of
imprisonment, the court lacked authority to impose misdemeanor parole upon
resentencing, or in the alternative that remand is required because the court failed to
ensure the new parole period did not exceed his remaining term of postrelease
community service (PRCS). He also contends he was entitled under governing law to
apply custody credits for excess time he served under his former felony sentence to
reduce his parole period and fines, and that the fines first should have been reduced to the
minimum amounts applicable to misdemeanor convictions. We conclude the court
correctly imposed parole, but erred: (a) in failing to ensure the parole period did not
result in a total term exceeding defendant’s original sentence, and (b) in declining to
apply his excess custody credits to reduce his parole and eligible fines. Because we must
reverse and remand for resentencing, defendant’s challenge to the restitution and parole
revocation fine amounts is moot.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              In September 2013, defendant pleaded guilty to theft with three prior
convictions (Pen. Code, §§ 666, subd. (a), 484, subd. (a), 488; all further undesignated
statutory references are to this code), second degree commercial burglary (§§ 459, 460,
subd. (b)), and possession of drug paraphernalia (Health & Saf. Code, 11364.1,
subd. (a)), and he admitted the prior convictions. The factual basis for defendant’s plea
included his statement that in April 2013 he willfully and unlawfully entered a Walmart
store with the intent to steal, completed the theft, and that he previously had been
convicted of theft offenses in December 2008, April 2009, and March 2011. He also
admitted he possessed narcotics paraphernalia.
              After dismissing the priors (§ 1385), the trial court sentenced defendant to
the low term of 16 months on the theft count, with a concurrent six-month term on the

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drug count, and stayed sentencing for the burglary under section 654. The court also
imposed a $280 restitution fine (§ 1202.4) and an additional $280 fine if defendant’s
parole were revoked (§ 1202.45).
              In March 2015, while on PRCS, defendant filed a petition under
Proposition 47 to have his felony theft and burglary convictions designated as
misdemeanors (§ 1170.18, subd. (f)). The trial court granted the petition, but over
defendant’s objection did so under subdivision (a), rather than (f), resulting in a one-year
parole term. The court also sentenced defendant to 365 days in jail, with credit for time
served of 183 actual days and 182 days for good conduct, but the court declined to apply
against his parole term any excess credit for the period defendant served in prison, nor his
time on PRCS.
                                             II
                                      DISCUSSION
              Defendant first argues he was not “currently serving a sentence” within the
meaning of section 1170.18, subdivision (a), when he filed his petition because he had
completed his prison term. He remained on PRCS at that time, but insists PRCS does not
qualify as part of his sentence for purposes of redesignating his offense. A person who
has “completed his or her sentence” for a felony offense that Proposition 47 reclassifies
as a misdemeanor may apply to have the conviction designated a misdemeanor under
section 1170.18, subdivision (f). Unlike the year of parole authorized under
subdivision (d) for defendants whose sentence is subject to recall and resentencing under
subdivision (a), subdivision (f) does not provide for a period of parole.
              We continue to adhere to the position this court first articulated in People v.
Morales (2015) 238 Cal.App.4th 42, review granted August 26, 2015, S228030
(Morales), that a defendant serving a term of PRCS is still serving a sentence under
section 1170.18, subdivision (a). That conclusion does not conflict with any Court of
Appeal decision and, in any event, we must decide this case. Accordingly, we affirm that

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the trial court here correctly imposed parole, after recalling defendant’s felony sentence
and imposing a misdemeanor sentence instead.
              We agree with defendant, however, that the trial court erred in failing to
apply excess custody credits he earned under his former felony sentence, and in failing to
ensure the parole term it imposed did not result in a total term exceeding defendant’s
original sentence.
              In Morales, this court held defendants are entitled to have their excess
custody credits counted toward their period of parole and eligible fines. A month later,
the Supreme Court granted review of Morales, as well as in People v. Hickman (2015)
237 Cal.App.4th 984, review granted August 26, 2015, S227964, a decision from the
Second District which reached the opposite conclusion from Morales on the credits issue.
The split reemerged after the Second District reaffirmed the holding of Hickman in
People v. McCoy (2015) 239 Cal.App.4th 431, review granted October 4, 2015, S229296,
and this court reaffirmed the holding of Morales in People v. Armogeda (2015)
240 Cal.App.4th 1039, review granted December 9, 2015, S230374 (Armogeda).
              In People v. Pinon (2015) 238 Cal.App.4th 1232 (Pinon), review granted
November 18, 2015, S229632, this court concluded that imposition of a parole period
longer than a defendant’s remaining PRCS term, and therefore longer than the total term
of the defendant’s original sentence, violated section 1170.18, subdivision (e), which
provides: “Under no circumstances may resentencing under this section result in the
imposition of a term longer than the original sentence.”
              Based on the foregoing, it is apparent the California Supreme Court will
speak to and resolve in a dispositive fashion the issues presented in this appeal. In the
meantime, we must decide this case, and we find sound the logic and conclusions reached
in Morales, Pinon, and Armogeda.




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                                             III
                                      DISPOSITION
              Consequently, we affirm the trial court’s decision to impose a period of
parole after recalling defendant’s sentence under Proposition 47 and resentencing him
under section 1170.18, subdivisions (a) and (d). But we reverse the sentence and remand
for resentencing because the court failed to apply to the parole period and eligible fines
the excess custody credits defendant earned under his felony sentence. In resentencing
defendant, the trial court must ensure any parole period it imposes does not result in a
total term exceeding defendant’s original sentence.




                                                   ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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