PEOPLE v. MORALES

Respondent’s Petition for Review

Cal.July 28, 2015

‘In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. S_ SUPREME COURT v. EC JOSUE VARGAS MORALES, JUL*2 8 2015 | Defendant and Appellant. Frank A. McGu ire Clerk ‘Deputy Fourth Appellate District, Division Three, Case No. G051142 _ Orange County Superior Court, Case No. 13WF3934 The Honorable Christopher Evans, Judge PETITION FOR REVIEW KAMALA D. HARRIS . Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING . Deputy Solicitor General LISE 8. JACOBSON Deputy Attorney General MARVIN E. MIZELL Deputy Attorney General State Bar No. 190786 600 West Broadway, Suite 1800 San Diego, CA 92101 “P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-3040 Fax: (619) 645-2191 E-mail: Marvin.Mizell@doj.ca.gov Attorneysfor Plaintiffand Respondent — TABLE OF CONTENTS Page Issue Presented ...ccsccccccscseccccccssserscsecsescersuseseesscesrssnssssvecssssssssssessssssesesseessenseds 1 Reason for Granting REView...........cccccssscsnseseesssesseesseeenscsscesesadesneveneseessaeess 1 . Statement of the Case and Facts ........cecesessessereeeees Veneseneoeseetensesaevsanenaneees 2 ATZUMENE 00...ee eeereeeeeeefeseseanesssevsaaeeeesseesseseessavsnesneserennesseneerseeeesseesereeeeeeetees 3 Conclusion ...cccesssessssssssesseesecssecsesseeesseseusssecsucsucsuncsussucsecsassecsecsecueeaccuensensenss 9 _ TABLE OF AUTHORITIES — Page CASES Inre Ballard (1981) 115 CalApp.3d 647... cecessccsssersesserseccssessserssearsceensrusneereneessess3 In re Bush. oo -(2008) 161 Cal.App.4th 133 ...escsseeeceseceecacscacescessesscesserseesssenessneseesensoseees3 Inre Sosa . — (1980) 102 Cal-App.3d 1002.eesseeseeeeesceacegeceesesansensenaesanesseensseees2 People v. Brown (2014) 230 CalApp.4th 1502... cccscsecsceesssstcersessressesessereserseeneseee People v. Cardwell . - (2012) 203 Cal.App.4th 876 ........cscccsescccccssecesesessecesnsonsssnsenessreseeesveseaeee 8 " People v. Floyd (2003) 31 Cal.4th 179... eceecsesesteteeeressesrssetsetisenseeseeansnearseneasesesnssenaes3 People v. Hickman (2015) 237 Cal.App.4th OBA... scecsccccssssssssevssecesesenssnssesseesesssessesssneeestees 1,5 | People v. Park (2013) 56 Cal.4th 782essseseeseeseecesnessescessasessvasssasssesaeeassseeersesssosseeeessenseeees3 People v. Rubalcava . . (2000) 23 Cal.4th 322.0sescscscsceseseessenscnssersteseesetsessrsrsssesessessesente 8 People v. Superior Court (Cervantes) (2014) 225 Cal-App.4th 1007........aneseenssnesnanoescesssnseerenssceneseaeeeaeeecseneescoons 3 . People v. Yearwood | | (2013) 213 Cal.App.4th 161.0...esecessssseseeseesneseesessnsenesseenenssessesens6 Quarterman v. Kefauver . (1997) 55 Cal.App.4th 1366... sccsssssssessessensesnssssssssstsssssessesesseeresereseses3 Robert L. v. Superior Court | (2003) 30 Cal.4th 894 o...sccsssesecsssesecsssseccsssssssssosssssssssessssvsssssssssesssssssversssseed ii TABLE OF AUTHORITIES (continued) Page STATUTES Health & Safety Code — . § 11350, stbbd. (8) occeeeseeesescecseseeteeseeeeesseedeeresessavseensees sestestaceseteanenneens2 | Penal Code | | § 1170, subd. (a)(3) ...ceessssesscrsescrseessesssenssesesscsesevsssessesssseseeseesessssessereres3 § 1170.18 cecccssccececeseceensesssesesseeseesareaneancaasssensssersssusssesetencsnsensearessesens7 -§ 1170.18, subd. (8)...eeebeesaeesseereneess seaveasesecesesesaceustecsureasenssenes 2,4 § 1170.18, SUG. (D) 0...eeeeseceseesecensessesneseesscsenesoneneerarenesteneesseeseaseeags4 § 1170.18, Subd. (d) 00... escsessesseesrecsssecsesssesceecsnssecersssseseseeeenessons passim § 1170.18, subd. (M).......ceeeesseneeceeeeeees Veveeevseuecsesceseesssnenessuseeesees 2, 5,6 § 1170.126, subd. (€) 0.ecseseeseerseeseeesventessesseseesuecersensvenecsusenesessnenesses6 § 1170.126, SUbG. (Kk)... ccccccsssccssseecessersesessscessesecsnsonasessesssesaessseeeseseneeas 6 3 2900.5 oe eececeecessseessscsseessscsesersssecsecerssssasensensessssaseaeossevseoeevansseseetess 1,2 ~§ 2900.5, subds. (4) & (C).ccccscscccsssccssscssesteecetsersesaseeecssereeesssesensasensenens 3 CourtRULES | _ California Rules of Court. © . ~~ rule 8.500...dueeeseeeseceseescauseeseesaeestesseseesacsacsessesassseceuecsssensessstanssorsere TULe 8.500(D)(1)...esssecserserssessssecscsseessesneesecsseasecsesssesnsseneenssessensesesssessnrerseeel . ii - TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TOTHE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Pursuant to Rule 8.500 of the California Rules of Court, petitioner, the People ofthe State of California, respectfully requests this Court grant . review ofthe published decision of the Court ofAppeal, Fourth Appellate District, Division Three, in this matter. The panel’s opinion reversing the judgmentofthe Orange County Superior Court, filed June 26, 201 5,is attachedtothis Petition. | ISSUE PRESENTED Can excess custody credits be used to reduce or eliminate one-year Proposition 47 parole under Penal Code section 1170.18, subdivision (d)?! REASON FOR GRANTING REVIEW Review of this case is necessary to secure uniformity of decision and to settle an important question of law. (Cal. Rules of Court, rule : . 8.500(b)(1).) The Court of Appeal held that custody credits could be used pursuant to section 2900.5 to reduce parole undersection 1170.18, | subdivision (d). (Slip opn. at pp. 7-10.) In so doing, the court expressly disagreed with the opinion in People v. Hickman (2015) 237 Cal.App.4th 984, 188 Cal.Rptr.3d 417, where that court reached the opposite conclusion. (Slip opn.at pp. 9-10.) Thus, review ofthis case is necessary to secure uniformity of decision so thattrial courts know whether or not to apply © “credits to parole under section 1170.18 subdivision (d). This is also an important question of law because in most such cases, whether a defendant _ is supervised or not turns on whethercredits can be applied to the parole period under section 1170. 18, subdivision (d). | All future undesignated code referencesare to the Penal Code. STATEMENT OF THE CASE AND FACTS On December 22, 2013, appellant was found in possessionof a ~ useable quantity ofheroin and a syringe used for unlawfully injecting a controlled substance. (CT.17.) . On March20, 2014,appellant pleaded guilty, as relevanthere,to | possession ofa controlled substance, heroin. (Health & Saf. Code, § 11350, subd. (a).) (CT 1-2, 8; Slip opn. at p. 2.) On April 10, 2014,the trial court imposed a 16-month prison term. (CT 10-11; Slip opn.at p. 2.) | In August 2014, appellant was released from prison into postrelease | community supervision (PRCS) for a period ofthree years. (Slip opn.at p. 2.) In November 2014, after voters passed Proposition 47, appellant filed a petition for recall of sentence under section 1170.18, subdivision(a), to have his possession of heroin conviction reduced to a misdemeanor. The trial court resentenced appellant to 365 days in jail with time served and orderedhim to be placed on parole forone year pursuantto section 1170.18, subdivision (d). (CT 12-13, 24; Slip opn.at p. 2.) Appellant appealed, contending, among other things, that under - section 2900.5, his excess custody credits, known as Sosa’ credits, should be applied againsthis parole time. (Slip. opn. at pp. 2, 8.) The Court of Appeal agreed, relying on the general rule that excess custody time is: " credited against the parole period; the language of section 1170.18, subdivision (m), which states that the section is not intended to diminish or . abrogate any rights otherwise available; and the absence of any indication that the voters intended to changethe law regarding custody credits. (Slip opn.at pp. 8, 10.) ? Inre Sosa (1980) 102 Cal.App.3d 1002, 1006. ARGUMENT Generally, excess custody credits must be applied to shorten the parole period,and if the excess credits exceed the entire parole period, the prisoner is entitled to be discharged unconditionally. (§§ 1170, subd. . (a)(3), 2900.5, subds.(a), (c); Jn re Bush (2008) 161 Cal.App.4th 133, 144; In re Ballard(1981) 115 Cal.App.3d 647, 650.) Whetherthe voters intendedfor this generalrule to apply in Proposition 47 cases is ultimately a question of statutory construction. . Theinterpretation of a ballot initiative isgoverned by the samerules . that apply in construing a statute enacted by the Legislature. (People v. . Park (2013) 56 Cal.4th 782,796.) First, the languageofthestatute is given - its ordinary and plain meaning. (RobertL. v. Superior Court (2003) 30 Cal.4th 894, 901.) Second,the statutory language is construed in the context ofthe statute as a whole and within the overall! statutory scheme to ' effectuate the voters’ intent. (/bid.) Wherethe statutory languageis clear and unambiguous, there is no — need for statutory constructionorto resort to legislative materials or other outside sources. (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) On the other hand, where the language is ambiguous, a reviewing court will look to “other indicia of the voters’ intent, particularly the analyses and arguments contained in.the official ballot pamphlet.” (Robert L., at p. 900; People y.Floyd(2003) 31 Cal.4th 179, 187-188 [ballot _ pamphlet information is valuable aid in construing the intent of voters].) . Ultimately, the reviewing court’s duty is to interpret and apply the language ' of the initiative “so as to effectuate the electorate’s intent.” (Robert L., at p. 900.) The interpretation of a statute is a question of law that is reviewed — independently. (Peoplev. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007; 1013.). . : Section 1170.18, subdivision(d), in relevantpart, states: A person whois resentenced pursuant to 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. (Italics added.) The plain language of section 1170.18, subdivision (d), establishes that a person whois resentenced underthis provision is not entitled to have excess custody time credited against the one year term of parole. A person whois resentenced to a misdemeanor under subdivision (b) must be given * credit for time served and must serve a one-year parole term if thetrial court, in its discretion, decides to impose parole. By using the word “and” > Section 1170.18, subdivisions (a) and (b), in relevantpart, state: . (a) A person currently serving a sentencefor a conviction, whetherbytrial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that addedthis section (“this act”)had this act been in effect at the time of the offense may petition for a recall of sentence before thetrial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 ofthe Health and Safety Code... as those sections have been amendedor added by this act. (b) Upon receiving a petition under subdivision (a), the court shall determine whetherthe petitioner satisfies the criteria in . subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanorpursuant to Section 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, [as] those sections have been amended or added bythis.act unless the court, in its discretion, . determines that resentencing the petitioner would pose an unreasonable risk of danger topublic safety... . the intent was to require that credits be given for time served and for there to be a one-year parole period. This intent was also shown by using the . word “shall” twice, once before the credit for time served and again in regard to the one-year parole period. In its opinion, however, the Court ofAppeal rejected this argument, stating the People did not give due consideration to the phrase “subjectto,” _ becausethestatute only states that a defendant “shall be subject to parole,” _ anot “that the defendantshall serve a period ofparole.” (Slip opn.at p.8.) While a defendantis only “subject to” parole because the trial court has discretion whether to imposeparole, that does not changethe fact that “shall” was used twice to indicate that credits would be given for time served and a one year of parole would be imposedifthe trial court, in its . discretion, decided to imposeit. Thus, underthe plain language of section 1170.18, subdivision (d), a person is not given credits against the one year ofparole. Accordingly, the Court of Appeal in People v. Hickman reached the correct result. (See People v, Hickman, supra, 188 Cal.Rptr.3d at pp. ~ 419-420.) | | In its contrary ruling that Proposition 47 unambiguously allowed custody credits to be applied to Proposition 47 parole, the Court of Appeal below relied on the general rule that excess custody time is credited against | / a parole period and on section 1170.18, subdivision (m), which provides, “Nothing in this section is intended to diminish or abrogate any rights or ‘ remedies otherwise availableto the petitioner or applicant.” (Slip opn.at p. . 8.) The Court ofAppeal noted it was required to “‘assume that voters had in mind existing law when they enacted Proposition’ 47.” (Slip. opn.at p. 8, quoting People v. Woodhead (1987) 43 Cal.3d 1002, 1012.) The court concluded, “[T]hereis no clear indication the voters intended to change the " law onthis front; to the contrary, they expressly retained all ‘otherwise available’ remedies.” (Slip. opn. at p. 8, quoting § 1170.18, subd. (m).) The Court of Appeal was mistaken as to section 1170.18, subdivision (m). The “otherwise available” language in section 1170.18, subdivision (m), harmonizes with section 1170.18, subdivision (d). While the latter _ subdivision clearly indicates that custody credits cannot be applied against Proposition 47 parole, the formersubdivision simply indicates that the provisionsofthe statute do not foreclose a defendantfrom seeking other remedies or rights not addressed by the statute. This interpretation of - subdivision (m) is consistent with the caselaw addressing identical . language in section 1170.126, subdivision (k), Proposition 36, the Three. Strikes Reform Act. For example, in People v. Brown (2014) 230 Cal.App.4th 1502, the court rejected the argumentthat the language of ‘section 1170.126, subdivision (k), meant“the Legislature intended to give a trial court the authority to exercise its discretion under section 1385 in - determining whether a defendantis eligible to be resentencedunder the _ Reform Act.” (Ud. at pp. 1512-1513.) The court noted “the plain and _ commonsense meaning”ofanother provision ofthe statute, section 1170.126, subdivision (e), “precludesa trial court from exercising its discretion in the furtherance ofjustice under section 1385 when ‘ determining whether an inmate hassatisfied the three criteria set out in that subdivision.” (Jd. at p. 1513.) Similarly, in People v. Yearwood (2013) 213 Cal.App.4th 161, the court held, “Section. 1170.126(k) protects prisoners from being forced to choose between filing a petition for.a recall of sentence and pursuing other legal remedies to which they might be " entitled (e.g., petition for habeas corpus). Section 1170.126(k) does not have any impact in determining if amended sections 667 and 1170.12 operate retroactively.” (Id at p. 178.) Hence, similarto section 1170.126, subdivision (k), section 1170.18, subdivision (m), does not unambiguously . allow custody credits to be appliedto parole under section 1170.18, | subdivision (d), as concluded by the Court of Appeal. _ To the extent that section 1170.18 is ambiguous with respect to whether excess custody credits may reduce the one-year parole term,the Voter Information Guide establishes that in voting for Proposition 47, there was no voter intent to decrease, or eliminate, the one-year period of parole by the use of custody credits. Specifically, the Voter Information Guide | told voters, “Offenders who are resentenced wouldbe required to be on state parole for one year, unless the judge chooses to removethat requirement.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), _ Resentencing of Previously Convicted Offenders, p. 36.) The voters were _alsotold, “(T]he resentencing of individuals currently serving sentences for felonies that are changed to misdemeanors would temporarily increase the state parole population by a couple thousandparolees overa three-year period. The costs associated with this increase in the parole population would temporarily offset a portion of the above prison savings.” (Voter _ Information Guide, Gen.Elec. (Nov.4, 2014), State Effects of Reduced Penalties, State Prison and Parole, pp. 36-37.) . Hence, in voting for Proposition 47, voters were told that when an ' offender was placed onparole, it would be for one year; that resentencing under the proposition would lead to a large increase inparolees; and that . costs for those parolees would increase. The voters were not told that credits would be used to offset, or eliminate, the mandated one year parole period. There would have been no reason for voters to expect and vote for -a large increase in parolees and the costs associated withthat increase,if in fact the vast majority of defendants would havetheir parole period ‘ eliminated by the use of custody credits. Thus, in voting for Proposition 47, there wasno voterintent to decrease,or eliminate, the one-year period ~ ofparole by the use ofcustody credits. Furthermore, to interpret section 1170.18, subdivision (d), to require that credits be used against the one-year parole period would all but render the one-year parole language surplusage. Namely,in everycase in which a defendant serves even the shortest possible prion term, he or she would be _ entitled to less (and possibly substantially less) than one year of parole. For example, even if a defendant had only served eight monthsin prison on a 16-month prison term and was on PRCS,that defendant, so long as he or she did not face a limit on credits, would beentitled to the full 16 months of time based on worktime credits. And even if that defendantis given the - full 365 daysin jail with time served, the defendant wouldstill have four monthsofexcess credits and thus, only serve eight months on parole, which is counter to the one-year parole period mandated in section 1170.18, subdivision (d). Construction of a statute that renders some words _ surplusage should be avoided. (People v. Cardwell (2012) 203 Cal.App.4th ’ 876, 882.) | Finally, interpreting section 1170.18, subdivision (d), to require that credits be used against the one-year parole would lead to the absurd result _ that people who had been sentenced to more time in prison would serve less time, or no time, on parole. Although it is true that by granting a petition * for recall of sentence, the defendant would have moved from being a felon to a misdemeanant, thefact that the defendant had moreprison time imposed upon them,for example, two years instead of 16 months, typically would mean that defendant was a worse criminal than a person who received 16 months. Such a defendant who received two years and was on ~PRCS would beentitled to enough actual and worktimecredits that even if the court imposed 365 days, this more culpable criminal would not have to serve any ofthe one-year parole period. That is an absurdresult, and an _ interpretation that would lead to such a result should be avoided. (Peoplev. . Rubaleava (2000) 23 Cal.4th 322, 328.) CONCLUSION For the reasonsset forth above, respondent respectfully requests this Court grant review in the presentcase. Dated: July 22, 2015 | . Respectfully submitted, KAMALA D, HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Deputy Solicitor General Lise 8. JACOBSON - Deputy Attorney General ~ MasonbgeE ‘Marvin E. MIZELL Deputy Attorney General . Attorneysfor Plaintiffand Responde nt -$D2015800333 a : 81107149.doc CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13-point Times New Romanfont and contains 2,536 words. _ Dated: July 22, 2015 KAMALAD. HARRIS ~ Attorney General of California MARVIN E. MIZELL Deputy Attorney General Attorneysfor Plaintiffand Respondent \ ~ ATTACHMENT CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G051142 V. . (Super. Ct. No. 13WF3934) JOSUE VARGAS MORALES, OPINION Defendant and Appellant. Appeal from a postjudgmentorder of the Superior Court of Orange County, | Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affimed in part and 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, Arlene A,Sevidal and Sean M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent, | * * * In 2014the voters passed Proposition 47, whichreclassified certain offenses from felonies to misdemeanors. Proposition 47 also enacted a procedure whereby a defendant whosuffered a felony conviction for oneof the reclassified offenses couldpetition to have the conviction redesignated a misdemeanor. If the defendantis still serving a sentence, the defendant can have the sentencerecalled and be given a misdemeanor sentence instead. Defendants who are resentenced are subject to one year of parole unless the court, in its discretion, waives the parole requirement. Here, in March 2014, defendant pleaded guilty to felony possession of a controlled substance. In April 2014, he was sentenced to 16 monthsin state prison. In August 2014, he was released to postrelease community supervision (PRCS) for a period of three years. In November 2014, defendantfiled a petition to have his sentence recalled and to have his felony conviction reclassified as a misdemeanor. The court recalled his _ sentence, imposed a jail sentence oftime served, and imposed one. yearofparole. | On appeal, defendant contends he wasnotstill serving a sentence and thus the court had noauthority to imposeparole, but could only redesignate the conviction from a felony to a misdemeanor. In the alternative, defendant contends his excess - custody credits should be counted against his parole time. We disagree with his first _ contention and conclude he wasstill serving his sentence when he petitionedto recall the felony conviction. However, we agree he wasentitled to credit his excess custody time against his parole. We also agree with defendant’s contention that heis entitled to have | excess custody days credited againsthis fines, and thus we remandfor a recalculation of his parole period and fines. DISCUSSION Defendant Was Subject to One Year ofParole: Proposition 47, “‘the Safe Neighborhoods and Schools Act’” was passed in November 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makescertain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punishedaseither felonies or misdemeanors). Proposition 47 (1) added Chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and(3) amended Penal Codesections 473, 476a, 496, and 666 and Health and Safety Codesections 1 1350, 11357, and 11377.” (id. at p. 1091.) | Penal Code section 1170.18 is a resentencing provision that provides two distinctremedies. , First, “A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that addedthis section (‘this act’) had this act beenin effect at the time of the offense maypetition for a recall of sentence before the trial court that entered the | judgment of conviction in his or her case to request resentencing in accordance with | Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added bythis act.” (§ 1170.18, subd.(a), italics added.) “A person whois resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completionofhis or her sentence, unless the court, in its All statutory referencesare to the Penal Code. discretion, as part of its resentencing order,releases the person from parole.” (/d., subd. (d).) Second, “A person who has completed his or her sentence for a conviction, - whether bytrial or plea, of a felony or felonies who would have been guilty ofa misdemeanor underthis act had this act been in effect at the time of the offense, may file an application before thetrial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” -(§ 1170.18, subd.(£),italics added.) The question presented by this appealis whether a person who has .completed a prison term but is on PRCSis still “serving a sentence,” such that the court may impose parole, or whether that person has “completed his or her sentence,” such that only redesignation of the conviction is available. | The People contend such a personis still serving a sentence,relying primarily on section 3000, subdivision (a){1), which states, “A sentence resultingin imprisonment in the state prison pursuantto Section 1168 or 1170 shall includea period of parole supervision or postrelease community supervision, unless waived, or as otherwise provided in this article.” (Italics added.) In contending otherwise, defendant relies primarily on the statute in question, section 1170.18, subdivision (d), which states, “A person whois resentenced pursuantto subdivision (b) shall be given creditfor time served and shall be subject to parole for one yearfollowing completion ofhis or her sentence ....” {ltalics added.) Defendant argues this language demonstratesthat parole is something that occurs after the sentence is complete andis thus not part of the sentence. | Atfirst blush, this may appear to create a contradiction. In fact, however, these uses of“sentence”are reconcilable. A person convicted of a felony and givena — prison term receives a period ofparole or PRCS as a matter of course. Accordingly, section 3000, which refers to individuals sentencedto state prison — i.e., felons — 4 includes parole or PRCSasa part of the sentence. By contrast, misdemeanoroffenders do not receive aperiod of parole or PRCSas a matter of course followingajail term, and thus areference to a misdemeanor sentence would notinclude a parole or PRCSperiod. | Accordingly, section 1170.18, subdivision (d), refers to the unique parole period added by Proposition 47 as occurring after the misdemeanor sentence has been completed. This follows from the plain language of subdivision (d), which applies on its face only to a person whois resentenced to a misdemeanor pursuantto the statute. . | To interpret section 1170.18, subdivision (a), therefore, we must simply consider which sentence is being referred to — the felony sentence toberecalled or the new misdemeanorsentence. Subdivision (a) permits the resentencing of “[a] person currently serving a sentence for a.conviction, whether bytrial or plea, ofafelony.” (Italics added.) Sincethis refers to the felony sentence, it includes PRCS. And since | defendant wasstill serving PRCS whenhe filed his petition under section 1170.18, he wasStill serving his sentence and thus subjectto the parole requirement. Defendantalsorelies onsection 1170, whichis part of the same chapteras section 1170.18. Section 1170, subdivision (a)(3), addresses determinate sentencing and provides for the accounting of custodycredits using the following language: “In any case in which the amountofpreimprisonmentcredit under Section 2900.5 or any other, | provision of law is equalto or exceeds any sentence imposed pursuant to this chapter, the | entire sentence shall be deemed to have been served andthe defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or sheshall serve a period of parole andorder the defendant to report to the parole office closest to the defendant’s last legal residence, unless the in-custody credits equal _ the total sentence, including both confinementtime and the period ofparole,” (Italics added.) Defendantarguesthis language “contemplates a ‘sentence’ as being the period of confinement not inclusive of [parole or PRCS] and a ‘total sentence’ as being the period of confinement and [PRCS] that follows the term in custody under the applicable law.” _ 5 However, defendant’s argument omits a modifier. Section 1170 refers to the prison term as not merely the “sentence” but the “entire sentence.” It then refers to the prison term plus parole period as the “total sentence.” In using the terms “entire sentence” and “total sentence,” there is no indication the Legislature meantto create distinct technical definitions. Rather, this simply showsthat the word “sentence” can be used in different ways and mustbe interpreted in context. The context makesplain that the “entire sentence,” as used in the statute, refers to the period of incarceration, and that the “total sentence”refers to the period including both timein custody andeither parole or PRCS. Additionally, section 1170, subdivision (c), goes onto state, “The court shall also inform the defendantthat as part ofthe sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.” (Italics added.) To the extent that section 1 170provides any clear guidance on what the word“sentence” means in isolation, therefore,it suggests “sentence” includes a parole period consistent with section 3000. . | | Defendantalso relies on People v. Nuckles (2013) 56 Cal.4th 601 (Nuckles). The issue presented in Nuckles is whether someone who helped a parolee abscond from parole was an accessory under section 32, which defines an accessory as someone who“after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledgethat said principal has committed such felony or has been charged with such felony or convicted thereof... .” (Huckles, at p. 605.) The court concluded that parole is part of the punishment, and thus the defendant was an accessory. (id. at p. 608.) In reaching that conclusion,the court discussed parole in these terms: ““‘[T]he general objectives of sentencing include protecting society, ' punishing offenders, deterring future crimes, and treating with uniformity those “committing the same typesof offenses [citations], whereas the objective of paroleis, through the provision of supervision and counseling,to assist in the parolee’s transition 6 from imprisonment to discharge and reintegration into society.’ [Citation.] [{] Although parole constitutes a distinct phase from the underlying prison sentence,a period ofparole following a prison term has generally been acknowledged as a form of punishment.” (Jd. at pp. 608-609.) | Nuckles was not addressing the issue before us. Andit merely reinforces the notion that the word “sentence” can be used in different ways and must beinterpreted in context. As we have noted above, the context of section 1 170.18 is that its reference to a felony sentence includes PRCS,andits reference to a misdemeanor sentence does not. Because defendantwasstill serving a felony sentence at the time he filed his petition in this case, he was subject to one year of parole after completing his misdemeanor 2 sentence. Defendant's Excess Custody Credits Apply to His Parole Period and Fines Next, defendant contendsthatifhe is subject to the parole requirement, his excess custody credits should reduce his parole period. Weagree. 2 . . . a. Defendantalso contends, in the alternative, that the court abusedits discretion in imposing parole. However, that argument seemsto be based on the faulty - premise that defendant’s PRCSwasset to expirein lessthan one year, such that the one. year of parole would have made defendant’s period of supervision longer. Arguably, that would be improper under section 1170.18, subdivision (e), which states, “Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.” However, the People filed a request for judicial notice, which wegrant, demonstrating that defendant wasreleased on PRCSin August 2014, which wasset to expire in August 2017, which is longer than the oneyearofparole the court imposed. Defendantalso contends the court improperly considered previously stricken strikes, but nothing in the record supports that assertion, In addition, defendant ‘filed a request for judicial notice of the online docket for defendant’s underlying offense as well as the plea form defendant executed. We deny defendant’s request for judicial notice as the attached material to the request is not necessary or helpfulin resolving this appeal. As a generalrule, excess custody credits (referred to as Sosa credits) reduce parole. (Jn 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”].) Andas defendantalso notes, section 1170. 18, subdivision (m), states, “Nothing in this sectionis intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.” The People contend, however, that applying custody credits to the period of parole is not consistent with the statutory language of section 1170.18, subdivision (d), ) which states, “A person who is resentenced pursuant to 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... .” (italics added.) The People contendthat use of the words “and shall”indicates the voters” intent that the defendant serve a parole period notwithstanding any credits. However, the People fail to give due consideration to the phrase “subject to.” The statute does notstate that the defendant shall serve a period ofparole, only that the defendantshail be subj ect to parole. And-as noted above, a person subject to parole is entitled to credit excess custody time against the parole period. “We must assumethat ‘the voters had in mind existing law when they enacted Proposition”47. (Peoplev. Woodhead (1987) 43 Cal.3d 1002, 1012.) Thereis no clear indication the voters intended to change the law on this front; to the contrary, they expressly retained all“otherwise available” remedies. (§ 1170.18, subd. (m).) . The People also contendthis interpretation wouldlead to the absurdresult that the worst offenders — i.e., those who had been given the longest sentences — would have the least supervision. But “[w]Jemust exercise caution using the ‘absurd result’ rule; otherwise, the judiciary risks acting as a ‘““super-Legislature”’ by rewriting statutes to | find an unexpressedlegislative intent.” (California School Employees Assn. v. Governing In re Sosa (1980) 102 Cal.App.3d 1002, 1006. 8 Bd. ofSouth Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 588.) And-we do notfind this result to be so absurd as to warrant a departure from a straightforward interpretation of the languageofsection 1170.18. The result we reachis _ not so unusual: all felons are intended to be subject to postrelease supervision as a general rule (§ 3000), yet if they have excess custody credits they are entitled to reduceor even eliminate their parole (§ 2900.5, subds. (a), (c)). Permitting that sameresult here is evenmoretolerable than usual because those subject to resentencing have by definition committed a minor offense and do not “pose an unreasonable risk of danger to public safety” under section 1170.18, subdivision (b). | Asthis opinion was being finalized, the Court of Appeal, Second Appellate District, Division Six filed People v. Hickman (June 17, 2015, B260928)___—s Cal.App.4th _(Hickman), whichreached the opposite result and concluded Sosa credits do not | apply to parole imposed pursuantto section 1170.18. ‘Hickmanrelied on two authorities. | First, it analogized the issue to People v. Espinoza (2014) 226 Cal.App.4th 635.(Espinoza), which wasdecided by the same panel. Theiissue in Espinoza was whether Sosa credits reduce a period of PRCS,and the court concluded they do not. The | Espinoza court reasonedthat section 2900.5, the statutory basis for Sosa credits, applies credits onlyto “any period of imprisonment and parole,” stating nothing about PRCS.It then noted that section 3451, subdivision (a), whichintroduced PRCS,states that “Notwithstanding any other law,” most felons(excluding so-called superstrikers) will be subject to PRCS. (Espinoza, at pp. 638-639.) The Espinoza court relied heavily on the phrase “[notwithstanding any Other law’”to conclude the Legislature did not intend for Sosa credits to apply to PRCS. (/d. at p. 639.) | | ‘Espinozais inapt. Section 1170.18 does not have any phrase similar to ~ “FnJotwithstanding any other law.” To the contrary, it expressly preserves “any rights or remedies otherwise available to the petitioner or applicant.” (/d., subd. (m).) Moreover, section 2900.5 does not provide for the application of credits to PRCS, but it expressly requires the application ofcredits to parole. (§ 2900.5, subd.(c).) The second authority Hickman relied on is a treatise. (See Couzens & Bigelow,the Safe Neighborhoods and School Act (rev. Feb. 13, 2015) p. 56; (Couzens & Bigelow).) Hickman quotes Couzens& Bigelow for the proposition that parole supervision under ~ section 1170.18 is “in addition to any resentence imposed by the court, and without consideration of any [custody] credit that the petitioner may have earned.. ..” (Hickman, | supra, _Cal.App.4th._[p. 51) But this quote omits the words that comerightbefore. | it, which are, “Jt appears that the intent of the initiative is to authorize the one-year period of parole supervision in additionto . . ” (Couzens & Bigelow, supra,at p. 56, first set of italics added.) In the full context of the quote, therefore, it is clear that the treatise authors do not take a strong stand on the issue. Moreover, the only authorities the | treatise authors cite are Espinoza, supra, 226 Cal.App.4th 635and People v. Tubbs (2014) 230 Cal.App.4th 578, which addressed the same issue as Espinoza and simply relied on Espinoza to reach the same conclusion (Tubs, at p. 585). For the reasons stated above, wefind those authorities inapplicable. Accordingly, because we find the analysis in Hickman unpersuasive, werespectfully disagree with its holding. Defendant’s final contentionis that excess custody credits should reduce fines imposed on defendant, and we agree. Section 2900.5, subdivision (a), permits excess custody credits to be “credited to anyfine, including, but not limited to, base fines, _on a proportional basis, that may be imposed,at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence.” Section "1170.18 says nothing aboutfies, and thus credit against applicable fines isa remedy 10 otherwise available.” (See People v. Robinson (2012) 209 Cal.App.4th 401, 406-407 feredits apply only against punitive fines].) DISPOSITION The matter is remandedto thetrial court with instructionsto recalculate defendant’s parole period consistentlywith this opinion, and to apply any excess credits against any applicable fines defendant owes. In all other respects the postjudgmentorder is affirmed. IKOLA,J. WE CONCUR: _ O’LEARY,P. J. ARONSON,J. 4 . Defendantalso contends-the court should have reduced his $280 restitution fine and his $280 PRCSrevocation fine, which were the minimum fines for a felony, to $140, which was the minimumfine for a misdemeanor. (§ 1202.4, subd. (b)(1).) However, the maximum fine was$1,000, even for a misdemeanor (/bid.), and thus the | fines were not an unauthorized sentence. Defendantfailed to object below andhasthus forfeited the issue. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 (“The appropriate amountofrestitution is precisely the sort of factual determination that can. and should be broughtto thetrial court’s attention if the defendant believes the awardis excessive. Here, because defendantdid not object to the amountofrestitutionin the trial court, he forfeited our consideration of the issue on appeal”’].) Hi DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Josue Vargas Morales — No.: S I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. 1 am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 23, 2015, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the _ Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186- 5266, addressed asfollows: Alan Carlson The Honorable Tony J. Rackauckas Court Executive Officer/Clerk of the Court Orange County Superior Court Deliver to Hon. Christopher Evans, Judge 700 Civic Center Drive West Santa Ana, CA 92701 District Attorney Orange County District Attorney's Office 401 Civic Center Drive West Santa Ana, CA 92701 Christian C. Buckley Buckley & Buckley 9921 Carmel Mountain Rd, #355 San Diego, CA 92129 Attorneyfor Appellant, 2 Copies Mr. Kevin J. Lane, Clerk/Administrator. California Court ofAppeal Fourth Appellate District, Division Three 601 W.Santa Ana Blvd. Santa Ana, CA 92701 | Appellate Defenders, Inc555 West BeechStreet, Ste. 300San Diego, CA 92101 I declare underpenalty of perjury underthe laws ofthe State of California the foregoing.is true and correct and that this declaration was executed on July 23, 2015, att San2... California. C. Pasquali Declarant $D2015800333 81107153.doc fp