Opinion
G051197
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. EVAN TAYLOR ARMOGEDA, Defendant and Appellant.
Steven J. Carroll, 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, Annie Featherman Fraser and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11WF0192) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Vickie L. Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Steven J. Carroll, 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, Annie Featherman Fraser and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Evan Taylor Armogeda contends the court erred when it resentenced him to a misdemeanor and imposed parole pursuant to Penal Code section 1170.18, subdivisions (a), (b), and (d). Alternatively, defendant contends his excess custody credits should be counted against his parole time and outstanding fines. He further contends his restitution fine and parole revocation fine must be reduced.
All statutory references are to the Penal Code unless otherwise stated.
We agree the court should have applied defendant's excess custody credits to reduce his eligible fines. In all other respects, we affirm the court's order.
FACTS
On January 31, 2011, defendant pleaded guilty to felony possession of heroin on January 22, 2011, in violation of Health and Safety Code section 11350, subdivision (a). The court sentenced him to two years in state prison. In 2013, he was released to postrelease community supervision (PRCS) for a period of around three years.
The court initially suspended execution of sentence pending defendant's successful completion of a Salvation Army program. The court subsequently imposed the two-year prison sentence after defendant admitted he had violated his probation.
In December 2014, while defendant was still serving PRCS, he petitioned under section 1170.18 for the reduction of his 2011 felony conviction to a misdemeanor conviction. Defendant alleged he had completed his sentence.
The record is sparse concerning defendant's supervision. Based on the comments of the court and defense counsel at the December 19, 2014 hearing on defendant's section 1170.18 petition, defendant had been "supervised by probation" for almost two years at the time of the hearing and the supervision was due to expire in about eight months. On appeal defendant does not dispute that he was serving PRCS at the time he filed his section 1170.18 petition.
At the hearing on defendant's section 1170.18 petition, the court found defendant was still serving his sentence because he was still being "supervised by probation." Accordingly, the court imposed a jail sentence of time served, and imposed one year of parole. The court gave defendant no custody credit against his parole period and fines. The court imposed a $200 state restitution fine and a $200 parole revocation fine.
DISCUSSION
Proposition 47 and Section 1170 .18
Proposition 47 reclassified certain drug- and theft-related offenses from felonies (or wobblers) to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1092.) The measure reduced "penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.) As part of Proposition 47, the electorate enacted section 1170.18. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)
Section 1170.18 applies to persons convicted of a reclassified offense prior to Proposition 47's effective date, and allows them to petition the court for reduction of the felony to a misdemeanor. The statute distinguishes between petitioners who are still serving a sentence and those who have completed a sentence.
A person "currently serving a sentence" for a felony conviction of a reclassified offense may petition for recall of the felony sentence under subdivision (a) of section 1170.18. Under subdivision (b), the court must recall the felony sentence of a petitioner eligible under subdivision (a), and resentence the petitioner to a misdemeanor unless the court determines that doing so would unreasonably endanger the public. Under subdivision (d), a person resentenced under subdivision (b) "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."
References to a statutory subdivision apply to section 1170.18 unless otherwise stated.
A person who has "completed his or her sentence" for a felony conviction of a reclassified offense may apply to have the conviction designated a misdemeanor under subdivision (f). Subdivision (f) does not provide for a period of parole.
Because Defendant was Still Serving a Sentence, the Court Properly Imposed Parole
Defendant contends the word "sentence," as used in subdivisions (a) and (f), means "prison term." He concludes he completed his "sentence" (within the meaning of subdivision (f)) before filing his section 1170.18 petition, even though he was still serving PRCS.
The word "sentence" — as used in subdivision (a) ("currently serving a sentence") and subdivision (f) ("completed his or her sentence") — is ambiguous. As defendant suggests, "sentence" might include only a defendant's prison term. On the other hand, "sentence" might encompass both the prison term and the corresponding period of parole or PRCS.
Because the word "sentence" in subdivisions (a) and (f) is ambiguous, we independently construe those subdivisions in light of (1) the statute as a whole, (2) the overall statutory scheme of which it is a part, and (3) the intent of the voters who enacted Proposition 47. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.)
Reviewing courts interpret statutes de novo (Burden v. Snowden (1992) 2 Cal.4th 556, 562), including statutes added to the Penal Code by the passage of a ballot initiative (People v. Park (2013) 56 Cal.4th 782, 796).
We first examine section 1170.18 as a whole. The statute uses the word "sentence" differently in subdivisions (a), (b), and (f) than in subdivision (d). In subdivisions (a), (b), and (f), "sentence" refers to a pre-Proposition 47 felony sentence. Subdivision (a) applies to a "person currently serving a sentence for a conviction . . . of a felony or felonies" (italics added), subdivision (b) provides for the recall of "the petitioner's felony sentence" (italics added), and subdivision (f) applies to a "person who has completed his or her sentence for a conviction . . . of a felony or felonies . . . ." (italics added). In contrast, subdivision (d) provides that a "resentenced" person "shall be subject to parole for one year following completion of his or her sentence . . . ." (italics added), thus referring to the new misdemeanor sentence to which the court has resentenced the person. Thus, the misdemeanor "sentence" in subdivision (d) includes only the jail term. But this does not answer the question of whether the determinate felony "sentence" in subdivisions (a) and (f) includes a prison term and a period of parole/PRCS. Rather, section 1170.18, viewed as a whole, reinforces the reality that the word "sentence" is ambiguous and can be used in different ways.
We turn to the interpretative aid of the overall statutory scheme governing determinate felony sentences. Section 3000 expressly applies to such sentences, i.e., sentences "resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 . . . ." (§ 3000, subd. (a)(1).) Section 3000, subdivision (a)(1) mandates that a determinate felony sentence "shall include" a period of parole supervision or PRCS. Section 1170, subdivision (c) recognizes this expansive scope of a determinate felony sentence, providing in relevant part: "The court shall state the reasons for its sentence choice [of the low, middle, or upper prison term] on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000." (Italics added; see In re Sosa (1980) 102 Cal.App.3d 1002, 1105 [§ 1170 is part of "a comprehensive scheme to provide 'uniformity of sentences' for like offenses"].) These statutes are clear: a determinate felony sentence includes a prison term and a period of parole/PRCS.
We presume that the voters who enacted Proposition 47, and the proposition's drafters, were aware that the law defines a determinate felony sentence to include a prison term and a period of parole/PRCS. (People v. Weidert (1985) 39 Cal.3d 836, 844 [enacting body deemed to be aware of existing law and judicial construction in effect when initiative legislation is enacted]; Horwich v. Superior Court (1999) 21 Cal.4th 272, 283 [electorate and drafters of initiative statute deemed to be aware of existing law].) Accordingly, we presume the voters and the drafters intended subdivisions (a) and (f)'s felony "sentence" to include a prison term and a period of parole/PRCS.
Proposition 47 was enacted by the voters on November 4, 2014, and went into effect the next day. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 1170, subdivision (c) was last amended in 2008. (Stats. 2008, ch. 179, § 180, superseded by Stats. 2008, ch. 416, § 1.) Section 3000 was last amended effective September 2014. (Stats. 2014, ch. 442, § 11.) In October 2014, we stated in Williams v. Superior Court (2014) 230 Cal.App.4th 636, 650, that the "sentence of a felon sent to prison must generally 'include a period of parole supervision or [PRCS].'"
We conclude the word "sentence," as used in subdivisions (a) and (f), includes a prison term and a corresponding period of parole or PRCS.
Defendant relies on People v. Nuckles (2013) 56 Cal.4th 601 (Nuckles), which concerned section 32's definition of an "accessory" as a person who, "'after a felony has been committed, . . . aids a principal in such felony, with the intent that said principal may . . . escape from . . . punishment . . . .'" (id. at p. 605). Our Supreme Court concluded that parole is part of the punishment (id. at p. 608), and thus a "person who intentionally aids a parolee in absconding from parole supervision qualifies as an accessory" (id. at p. 605). In reaching that conclusion, our Supreme Court distinguished "sentencing" from "parole": "Although parole constitutes a distinct phase from the underlying prison sentence, a period of parole following a prison term has generally been acknowledged as a form of punishment." (Id. at p. 609.)
Thus, Nuckles uses the phrase "underlying prison sentence" synonymously with "prison term." (Nuckles, supra, 56 Cal.4th at p. 609.) In this way, Nuckles (like § 1170.18 viewed as a whole) simply reinforces the notion that the word "sentence" is ambiguous and can be used in different ways. Moreover, Nuckles actually supports our holding: Relying on section 3000, subdivision (a)(1), Nuckles stated that "parole is a mandatory component of any prison sentence." (Nuckles, at p. 609.)
In his reply brief, defendant argues section 1170, subdivision (a)(3) supports his position. In fairness to respondent parties, we do not address arguments raised in an appellant's reply brief. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.)
Because defendant was still serving PRCS when he filed his petition, he was serving his sentence within the meaning of subdivision (a), and was thus subject to subdivision (d)'s one-year parole requirement. Under Subdivision (d) and the Ex Post Facto Clause, Defendant's Excess Custody Credits Should Be Credited Against his Restitution Fines, but not his Parole Term
Defendant contends that, even if he is subject to the parole requirement, the court erred by failing to apply his excess custody credits against his parole term and fines. He relies, inter alia, on section 2900.5, which mandates that a defendant's excess custody credits be applied to reduce his or her parole term and eligible fines.
In People v. Morales (2016) 63 Cal.4th 399, 403 (Morales), our Supreme Court held that "credit for time served does not reduce the [subdivision (d)] parole period." The high court interpreted subdivision (d) to require a one-year parole period subject to the court's discretion to order otherwise. (Morales, at pp. 403-404.) The court based its holding, inter alia, on subdivision (d)'s plain language (Morales, at p. 406); the Legislative Analyst's statement in the voter materials on Proposition 47 that resentenced offenders "'would be required to be on state parole for one year'" (Morales, at pp. 406-407); the court's conclusion that "the purpose behind [section 2900.5] is irrelevant to resentencing under Proposition 47" (Morales, at p. 406); and the court's reasoning that a contrary interpretation of subdivision (d) "would undermine the trial court's discretion in many cases" (Morales, at p. 405).
In Morales, the Attorney General's petition for review was "limited to the question of whether excess custody credits can reduce the period of parole" and "did not challenge the holding that excess custody credits can also reduce any fines." (Morales, supra, 63 Cal.4th at p. 404.)
Although the legislative purpose of section 2900.5 is irrelevant to the mandatory (subject to the court's discretion) parole term imposed by Proposition 47 (Morales, supra, 63 Cal.4th at p. 406), that purpose remains relevant to fines imposed upon defendants, many of whom may have languished in presentence custody due to indigency. More importantly, subdivision (d) mandates that a "person who is resentenced pursuant to subdivision (b) shall be given credit for time served . . . ." Because excess custody time cannot be credited against the parole period, the only type of excess custody credit available to resentenced persons is a credit against punitive assessments.
Section 2900.5, subdivision (a) "does not apply to nonpunitive assessments." (3 Witkin & Epstein, Cal. Criminal Law (2016 supp.) Punishment § 464, p. 151.) For example, a court security fee (§ 1465.8) or criminal conviction assessment (Gov. Code, § 70373) is nonpunitive. (People v. Alford (2007) 42 Cal.4th 749, 759 [court security fee]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1493 [criminal conviction assessment].) Section 2900.5 is inapplicable to them.
In July 2013, the Legislature amended section 2900.5, subdivision (a), to eliminate restitution fines from the fines to which excess custody credits may be applied. (Stats. 2013, ch. 59, § 7.) "[T]his amendment was intended to make section 2900.5 consistent with section 1205, which provides that a restitution fine may not be satisfied by the time a defendant is in custody. [Citation.] The bill analysis for Senate Bill No. 514 states: 'This bill clarifies that [a] term of imprisonment cannot satisfy a restitution fine.'" (People v. Morris (2015) 242 Cal.App.4th 94, 100, fn. omitted.)
In People v. Morris, supra, 242 Cal.App.4th 94, the appellate court held that, because the defendant had committed his offense in January 2013, "the ex post facto clause applies to [his] restitution fine, and therefore the restitution fine is governed by the statutes in effect at the time of his offense." (Id. at p. 102.) Here, too, because defendant committed his crime in January 2011, his excess custody days are applicable to reduce his restitution fines under the version of section 2900.5 in effect at the time of his offense.
In sum, the court did not err by failing to apply defendant's excess custody credits to reduce his parole period. But, the court should have applied his excess custody credits to reduce his eligible fines.
The Court Properly Set the Amount of Defendant's Restitution Fine and Parole Revocation Fine
Defendant contends his restitution fine and parole revocation fine should be reduced to the applicable misdemeanor fines. Defendant committed his offense in January 2011 and was assessed $200 for each fine. He asserts each such fine should be $100 for a misdemeanor committed in 2011.
Generally, a court must impose a restitution fine on a person convicted of a crime. (§ 1202.4, subd. (b).) Although the court has discretion in setting the amount of the restitution fine, "commensurate with the seriousness of the offense," the restitution fine for a misdemeanor conviction must not be less than $120 starting on January 1, 2012, $140 starting on January 1, 2013, or $150 starting on January 1, 2014, and not more than $1,000. (§ 1202.4, subd. (b)(1).) If the convicted person's sentence includes parole, the court must impose an additional parole revocation fine in the same amount as the restitution fine. (§ 1202.45, subd. (a).) Thus, the fines imposed by the court in December 2014 were lawful under current law, since they did not exceed $1,000 each.
Even if defendant's current fines should be governed by the law in effect when defendant committed his January 2011 offense (an issue we do not decide), former section 1202.4, subdivision (b)(1), as in effect in January 2011, provided that the restitution fine for a misdemeanor must not be less than $100, and not more than $1,000. (Stats. 1996, ch. 629.) Section 1202.45, subdivision (a) read the same in January 2011 as it does now. (Unchanged by Stats. 2011, ch. 358, § 1.) Thus, the fines imposed by the court in December 2014 were lawful under former law, since they did not exceed $1,000 each.
Because the fines were lawful under current law and the law in effect in January 2011, defendant's failure to object below to the court's exercise of its discretion in setting the amount of the fines has forfeited the contention on appeal. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [when fines imposed by court are permitted by law, the defendant's failure to object below forfeits challenge on appeal].)
DISPOSITION
The matter is remanded to the trial court with instructions to apply defendant's excess custody credits against his eligible fines consistently with this opinion. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.