Opinion
F072434
10-04-2017
THE PEOPLE, Plaintiff and Respondent, v. TRACY McMILLAN, Defendant and Appellant.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10800489)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In 2011, appellant Tracy McMillan was convicted of, inter alia, second degree commercial burglary in violation of Penal Code sections 459/460, subdivision (b) and sentenced to an aggregate term of six years in state prison. After Proposition 47 passed, McMillan filed a petition requesting her conviction be reduced to a misdemeanor and that she be resentenced. (See § 1170.18.) The trial court granted the petition, reduced the conviction to a misdemeanor, and imposed a one-year period of parole. The trial court also awarded McMillan 1,700 days custody credits. McMillan contends the trial court erred when it imposed a one-year parole term under section 1170.18, subdivisions (a) and (d). She argues in the alternative that the trial court should have applied her excess custody credits towards her one-year parole period. We disagree and affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
On February 5, 2015, McMillan petitioned the trial court for resentencing under section 1170.18. The petition was heard September 14, 2015, at which time the trial court granted the petition and reduced the felony commercial burglary to a misdemeanor shoplifting conviction. The following exchange then took place between the trial court, McMillan, the probation officer, and the district attorney:
"PROBATION OFFICER: [McMillan's] on parole in this matter.
"[McMILLAN]; I'm currently on ACP[]. I'm still technically in custody, but I'm in a drug program. I've been there for 16 months.
"[DISTRICT ATTORNEY]: Your Honor, we'd ask she be granted a one-year [term] of parole, so she can remain in that program.
"[McMILLAN]: Well, my program is - it's a 15-month program, and I'm only there, still, because of my ACP.
"THE COURT: How much time do you have left in the program?
"[McMILLAN]: I'm already done, but I had two more months in the program for ACP, for the rest of my sentence.
"THE COURT: The court will order that you remain on parole for one year, and that you can ask to have it modified upon completion of your program."
Although not clarified in the record, it appears ACP refers to an Alternative Custody Program.
DISCUSSION
I. DID THE TRIAL COURT IMPROPERLY IMPOSE A PERIOD OF PAROLE FOLLOWING PROPOSITION 47 RESENTENCING?
McMillan contends the trial court erred when it imposed a one-year period of parole as she was not serving a "sentence" for purposes of section 1170.18. Respondent contends McMillan forfeited this argument as it was not raised below. While we agree with McMillan that the question of whether a sentence is unauthorized may be challenged for the first time on appeal (People v. Scott (1994) 9 Cal.4th 331, 354), we disagree that the trial court erred in imposing the parole term.
Proposition 47
In November 2014, the voters approved Proposition 47, the Safe Neighborhoods and Schools Act. "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).)
Proposition 47 created a new resentencing provision: section 1170.18. "Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (Rivera, supra, 233 Cal.App.4th at p. 1092.) A person who is resentenced after a petition under subdivision (a) of section 1170.18 is given credit for time served and is subject to parole for one year, unless the court releases the person from parole. (§ 1170.18, subd. (d).)
"Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.' (§ 1170.18, subds. (f); see id., subds. (g)-(h).)" (Rivera, supra, 233 Cal.App.4th at p. 1093.) Unlike the provisions for a defendant currently serving a sentence, "[n]o hearing is required unless requested by the applicant (§ 1170.18, subd. (h)), and if the application satisfies the criteria in subdivision (f), the court 'shall' designate the felony offense as a misdemeanor (§ 1170.18, subd. (g)). There is no provision for any period of parole accompanying the redesignation of the offense as a misdemeanor under subdivision (f), nor does subdivision (f) confer discretion on the court to deny the application based on current dangerousness." (People v. Lewis (2016) 4 Cal.App.5th 1085, 1092 (Lewis).)
Whether Section 1170 .18, Subdivisions (a) and (d) or Subdivision (f) Applies
McMillan contends section 1170.18, subdivision (f), and not subdivisions (a) and (d) applied in her case. The crux of McMillan's argument is that she was not in custody for the offense at the time of the September 14, 2015 hearing, and because a period of parole or postrelease community supervision (PRCS) does not constitute a sentence, she was not "currently serving a sentence" and should not have received the one-year period of parole. We disagree.
In Lewis , the court held the provisions of subdivision (f) of section 1170.18 apply only "to those persons who have completed their entire sentence, including any period of postrelease supervision, whether through parole or through PRCS." (Lewis, supra, 4 Cal.App.5th at p. 1096.) In reaching this conclusion, the Lewis court relied on section 3000, subdivision (a)(1) and People v. Nuckles (2013) 56 Cal.4th 601. Section 3000, subdivision (a)(1) provides in part: "A sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease community supervision." At sentencing, the court must "inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period." (§ 1170, subd. (c).) In Nuckles, the Supreme Court recognized that parole constitutes part of the punishment for the crime. (Nuckles, supra, 56 Cal.4th at p. 608.) "Thus, a prison sentence 'contemplates a period of parole, which in that respect is related to the sentence.' [Citation.]" (Id. at p. 609.) The Lewis court reasoned it would be absurd to release felons who had just commenced a period of parole or PRCS from any postrelease supervision, without regard to their current dangerousness. (Lewis, supra, at pp. 1095-1096.)
Lewis was decided after briefing in this case was completed, but it was brought to this court's attention in a supplemental points and authorities letter filed by respondent on November 7, 2016. --------
We find the reasoning of Lewis persuasive. Accordingly, we find no error on the part of the trial court in imposing a one-year parole term.
II. DID THE TRIAL COURT ERR WHEN IT DID NOT APPLY EXCESS CUSTODY CREDITS TOWARD THE ONE-YEAR PAROLE PERIOD?
McMillan also argues, assuming arguendo, the trial court's actions in imposing the parole term was permissible, it was required to credit her with the "'extra' days of custody credit and potentially post-release or parole time completed." By this, McMillan means the number of days by which her time served in prison exceeded her misdemeanor sentence, against the one-year period of parole imposed under section 1170.18, subdivision (d), which would have resulted in no period of parole. We disagree.
McMillan relies on section 2900.5, which provides that: (1) "[i]n all felony and misdemeanor convictions," the defendant is entitled to credit for time served; and (2) such credit can be applied toward "any period of imprisonment" and "any period of ... parole." (§ 2900.5, subds. (a) and (c); see also In re Sosa (1980) 102 Cal.App.3d 1002 [under section 2900.5, presentence custody credits in excess of a prisoner's term of imprisonment reduce the prisoner's time on parole]; In re Ballard (1981) 115 Cal.App.3d 647, 650 ["section 2900.5 credits may be applied against either or both of the period of incarceration and the parole period"].)
During the pendency of this appeal, the California Supreme Court issued People v. Morales (2016) 63 Cal.4th 399 (Morales), holding that excess credit for time served does not reduce the one-year parole period described in section 1170.18, subdivision (d). In Morales, the defendant pleaded guilty to felony possession of a controlled substance. After the passage of Proposition 47, he petitioned the trial court to have the felony "designated as a misdemeanor or, in the alternative, to reduce the felony conviction to a misdemeanor and resentence him. The court recalled his sentence, reduced the conviction to a misdemeanor, and imposed a jail sentence of time served. Rejecting defendant's argument that his record did not warrant parole, it also imposed one year of parole." (Morales, supra, at p. 403.)
On appeal, the defendant argued that trial court was required to apply his excess custody credits toward the one-year parole period set forth in section 1170.18, subdivision (d). The Court of Appeal agreed, concluding section 2900.5 required the trial court to apply any excess custody credits toward the one-year period of parole. The Supreme Court reversed, concluding that although section 2900.5 ordinarily requires excess custody credits to be applied toward any period of parole "in the ... situation of original sentencing," the statute does not apply to resentencing conducted under Proposition 47. (Morales, supra, 63 Cal.4th at p. 405.) The Court explained that "[o]n its face," section 1170.18, subdivision (d) requires persons who are resentenced under Proposition 47 to serve a "one-year parole period subject to the court's discretion to order otherwise. [The statute] states that the person shall receive credit for time served and shall be subject to parole." (Morales, supra, at p. 405, original italics.) The Court further explained that if, as the Court of Appeal had concluded, section 2900.5 was deemed to apply to Proposition 47 resentencing, "parole [would] be reduced or eliminated in many of the cases that section 1170.18 governs. Persons receiving a misdemeanor sentence under section 1170.18 will have been serving a felony sentence and, therefore, will often have substantial excess credit for time served. In those cases, if excess credits can reduce or eliminate the period of parole, the court's discretion will be curtailed or eliminated. Thus, the Court of Appeal's conclusion would undermine the trial court's discretion in many cases." (Morales, supra, at p. 405.)
The Supreme Court also noted that even if it "assume[d]" section 1170.18, subdivision (d)'s "seemingly mandatory ... language [wa]s ambiguous," the ballot material concerning Proposition 47 specifically informed the voters that "[o]ffenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement.' [Citation.]" (Morales, supra, 63 Cal.4th at pp. 406-407.) In the Court's view, this "easy to understand and entirely unambiguous" sentence had "promised voters that offenders would be on parole for one year unless the judge deemed it not necessary. Any reasonable voter would have understood the sentence to mean exactly what it said." (Id. at p. 407.)
In light of the Supreme Court's holding in Morales, we affirm the trial court's decision to impose the one-year parole term.
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.