PEOPLE v. MORALES

Respondent’s Reply Brief on the Merits

Cal.December 17, 2015

Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $22803Q)pREME COURT V. FILED JOSUE MORALES, DEC 17 2015 Defendant and Appellant. Frank A. McGuire Clerk Fourth Appellate District, Division Three, Case No.G051142 DePUly Orange County Superior Court, Case No. 13WF3934 The Honorable Christopher Evans, Judge REPLY BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General ~ JULIE L. GARLAND Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General CHARLES C, RAGLAND Supervising 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 Marvin.Mizell@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Introduction ........cceeesscescecessnseeesesecseceacesnsceseceeaecseeeseeeseeseressseseatestateseseeates 1 ALQUMENL 0... ecceeseeeeneceeneeeeeeesecsenectensesseecesaeeseesauessesesseecveeseseseessaecessateseesengs 2 I. Nothing in the language of section 1170.18(d) specifies that an excess custody credit regime should control over the express statutory provision for one year Of parole oo... eecescsceesnceeeeseeeeseeeeneeenseesesneeesreetseneesseeens 2 I. Morales’ arguments rely not on the statute’s plain language but on speculative assumptions and presumptions about voter expectations, whichis an issue better settled by the voter guide... eeeeeesseeserseeees 4 II. This court should set aside the trial court’s revised order applying credits while this appeal was pending........... 8 CONCIUSION oo... cece eeeeeeeseeeccesseeereneeaecesaeseeceeecessaueesaecesesesaeesseeeeeseseeagesssaeenes 9 TABLE OF AUTHORITIES Page CASES In re Chaudhary (2009) 172 Cal.App.4th 32.......jteeeseesessueesseenseresenecseessnensersnsnaneaneneenetns 3 People v. Alanis (2008) 158 Cal.App.4th 1467ccccscssssessecscnessssesessecsesssserseserseenee 8 People v. Espinoza (2014) 226 Cal.App.4th 635 ooo. ceccssscsessecseeseesceessssssasesserssesseesenses 5,6 People v. Mendez (1991) 234 Cal.App.3d 1773 ...ccceceseessesseeereeseeesessecesesesansssssensseeseessrerens 8 People v. Palacios (2007) 41 Cal4th 720...cceseesscssssersesscssessescneereeecseesenenseeesecssenees 3 People v. Perez (1979) 23 Cal.3d 545 oecesesscessscnseneeerseseeseesseseecesssesenssecsenssnsssreneeseesates 9 People v Tubbs (2014) 230 Cal.App.4th 578.0... cecececsscnesescetecessssesssssenssesseressaeenses 5, 6 STATUTES Penal Code § 1170.18, Subd. (d) i.cecessererereensenssseeeeeneessasessssessseneves 2, 3,5,8 § 2900.5 ..ccecccsccscescersseceseeceeceseeceaeeeeeeectesesesesssessueeesracsscsssuseseerscsaneeseeseneens 8 § 3000, SUB. (D) oo... eeeeseeeseesneenerecseecneeseessesuecasaucneesseserensassscseeeeeeeseesens 5 § 3000.1, subd. (a)(1). cc ceeeeeseeseesecerceretsessssasenssessesseesesersasseseseseeseeeeees 5 § 3000.1, SUD. (D)oiieee ceseerecseeenecessssessessscnensessucassaeecasseesesessneseneens 3 OTHER AUTHORITIES William Lansdowne,letter to Initiative Coordinator, Office of Attorney General, Dec. 17, 2013, available at https://oag.ca.gov/system/files/ initiatives/pdfs/13-0060%20%28 1 3-0060%20%28Neighborhood% 20and™%20School%20Funding%29%29pdf ......... ccc eee eee eee ee ee e 6 ii TABLE OF AUTHORITIES Page Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Resentencing of Previously Convicted Offenders.............cecsccessreeseseeeteeeees 7 ili INTRODUCTION The People’s opening brief demonstrated that Proposition 47’s text and its accompanying ballot materials, taken separately or together, convey a clear intent for a particular safeguard to operate in the case of those released early from confinement: the offender, though released from incarceration early, would be under parole supervision for a year unless the Superior Court judge who resentenced him found such supervision unnecessary for community safety. In contesting this view, Morales leans heavily on a debatable assumption that the voters knew about and expected the application, in the new Proposition 47 resentencing context, of various backgroundregimes, including that concerning excess custodycredits. Indeed, for Morales’ view to prevail, those assumptions would haveto be given moreforcethanthe statute’s textual provision that resentenced offenders “shall” be subject to a year of parole. Although Morales portrays his contention as one based on the Proposition’s text, his argumentin fact consists of a highly speculative foray in the non-textual subject of voter expectations. Such speculation is unnecessary, because the subject of voter expectationsis definitively answeredby the official ballot materials, which leave no doubt that voters were assured the safeguard of parole for Proposition 47 beneficiaries. The court of appeal’s contrary decision should be reversed, and the case should be remandedfor reinstatement of the Superior Court’s original sentence, which included a yearofparole. ARGUMENT I. NOTHING IN THE LANGUAGEOFSECTION 1170.18(D) SPECIFIES THAT AN EXCESS CUSTODY CREDIT REGIME SHOULD CONTROL OVER THE EXPRESS STATUTORY PROVISION FOR ONE YEAR OF PAROLE Penal Code section 1170.18, subdivision (d), provides that a resentenced offender “shall be given credit for time served” and “shall be subject to parole for one year following completion ofhis or her sentence, unless the court, in its discretion . . . releases the person from parole.”! As the People’s Opening Brief explained (pp. 8-9), these two commandswill be fully met if the offender’s time-served is credited against any remaining incarceration and he serves a year of parole upon his release. In contrast, the commandthat an offender be “subject to parole for one year following completion of his or her sentence”will not be met if the application of excess custodycredits reduces the offender’s time on parole to nothing,as Morales contends should be the case for him. Morales arguesthat the statutory term “shall”? cannot have mandatory effect, because “the trial court can exercise discretion to withhold”parole underthe statute. (ABM 17; see § 1170.18, subd. (d) [offender “shall be subject to parole for one year... , unless the court, in its discretion,. . . releases the person from parole”].) But that does not contradict the People’s understanding of the word “shall.” Discretionary withholding of parole is provided for by the “unless” clause, which modifies the word “shall” with a negative condition: The offender “shall be subject to parole for one year. . , unless the court, in its discretion, . . . releases the person from parole. (§ 1170.18, subd. (d), emphasis added.) The fact that there is ' Unless otherwise indicated,all statutory citationsin this Reply Brief are to the Penal Code. Morales’ Answering Brief on the Merits is cited as “ABM,”and the Clerk’s Transcript is cited as “CT.” an exception where the “unless” clause applies (i.e., where the judge exercises her discretion not to impose parole) does nothing to undermine the mandatory force of “shall” where the exception does not apply. Morales also argues (ABM 17) that the term “shall” cannot have the force the People contend because subdivision (e) of the statute will sometimes result in an offender serving less than a year of parole, to prevent the new sentence from amounting to “a term longer than the original sentence.” But that, too, is an express exception to the scope of the statutory command. It says nothing to indicate that the commandshould not apply in other cases. “Under the maxim ofstatutory construction, expressio unis est exclusio alterius, if exemptionsare specified in a statute, we may not imply additional exemptions unlessthere is a clear legislative intent to the contrary.’ [Citations].” (People v. Palacios (2007) 41 Cal.4th 720, 732). Morales argues (ABM 19-20), based on In re Chaudhary (2009) 172 Cal.App.4th 32, that if the drafters of Proposition 47 had wantedto limit the application of excess custody credits then they would have used other language. Chaudhary rejected the application of excess custody credits to a defendant seeking early discharge ofhis lifetime parole. (Jn re Chaudhary, supra, 172 Cal.App.4th at p. 34.) The statute in question, section 3000.1, subdivision (b), provided for discharge when the offender “‘has been on parole continuously for ... five years... since release from confinement.’” (In re Chaudhary, supra, 172 Cal.App.4th at p. 37.) Chaudhary held that that language explicitly foreclosed any possibility that excess custody credits could operate to permit discharge soonerthan five years after release from confinement. But Chaudhary does nothing to advance Morales’ case. True, the language in Chaudhary was exceptionally clear. But the language here is clear, too: Section 1170.18, subdivision (d), requires a resentenced offender to be “subject to parole for one yearfollowing completion ofhis or her sentence” (emphasis added). The statutory text thus indicates that parole begins when incarceration has ended—which,indeed,is the commonsense understanding of what parole means. The requirementthat the year ofparole be “following completion of [the offender’s] sentence” also disproves Morales’ claim (ABM 11) that he was effectively “subject to parole” while still incarcerated. (See also ABM 23 [implying view that a person may ““be’ on parole” even while incarcerated].) For parole to be both “following completion”of the sentence, and while the offender serves his sentence,is nonsensical. The People’s interpretation resolves these problems. It gives meaning to the statute’s two explicit exceptions, without supplementing them through implied additional exceptions. And as the statute commands, any parole begins“following the completion” of the offender’s sentence—i.e., whenheis no longer in custody. The court of appeal’s interpretation, which contradicts this straightforward reading of the text, should be reversed. II. MORALES’ ARGUMENTS RELY NOT ON THE STATUTE’S PLAIN LANGUAGEBUT ON SPECULATIVE ASSUMPTIONS AND PRESUMPTIONS ABOUT VOTER EXPECTATIONS, WHICH IS AN ISSUE BETTER SETTLED BY THE VOTER GUIDE Although Morales claims (ABM 18)that the People are “‘insert[ing] 999 wordsinto a statute underthe guise of interpretation,’” the People, as explained above,rely on the statute’s express words. In contrast, Morales seeks to supplement those express provisions with a host of extratextual “presum[ptions]” (ABM 12, 13, 14, 23), with guesses about whether the drafters were aware of various intermediate appellate court precedents _ (ABM14), and with Morales’ judgment about whatit is “doubtful that the drafters would have” done (ABM 21) versus what he thinks the drafters “could have” done differently (ABM 14). Morales’ guesses are debatable on their own terms. Even if a voter knew of the concept that Sosa credits may apply to a felony offender’s original sentence, why would that voter have reason to believe that such credits would apply to resentenced offenders—particularly when the initiative’s text (reinforced by the ballot materials, as discussed below) seems to guarantee oneyear ofparole? Because Proposition 47 parole and felony parole are significantly different, the effect of such creditsis different as well. The length of felony parole varies by the seriousness of the offense, ranging from three yearsto life. (§ 3000, subd.(b); § 3000.1, subd.(a)(1).) For such offenders, it is rare indeed for Sosa credits to completely eliminate parole. For a Proposition 47 offender whois resentenced under section 1170.18, subdivision (d), in contrast, parole only lasts one year, and caseslike Morales’, where the parole period will be completely vitiated should credits apply, will be frequent. As a result, voters’ experience or knowledgeofthe preexisting felony parole regime would not have led them to expect the result that Morales claims should apply here: the complete vitiation of parole safeguards even wherethe judge deems parole necessary. The tenuousness of Morales’ assumptions is exemplified by his assertion (ABM 14)that the drafters of Proposition 47 were aware of and chosethe initiative’s language based on the court of appeal decisions in People v, Espinoza (2014) 226 Cal.App.4th 635, 638-639, and People v. Tubbs (2014) 230 Cal.App.4th 578, 585. Those cases held that Post Release Community Supervision (PRCS)is not subject to excess custody credits. Morales maintainsthat the drafters of Proposition 47, knowing of those opinions, consciously chose parole over PRCSprecisely so that custody credits would apply. (ABM 14.) But this Court may take judicial notice of the fact that Proposition 47’s sponsors submitted the initiative’s text and requested title and summary on December17, 2013.” The Espinoza opinion wasnotoriginally filed until May 27, 2014, and Tubbs wasnotoriginally filed until October 10, 2014. (People v. Espinoza, supra, 226 Cal.App.4th at p. 635; People v. Tubbs, supra, 230 Cal.App.4th atp. 578.) The text of Proposition 47 thus could not have been drafted in reaction to Espinoza and Tiubbs.° Asthis example shows, Morales’ assumptions about the background knowledge of Proposition 47’s drafters and voters are highly questionable. Such assumptions should not in any sense be mistaken for an argument based on plain statutory language. (Indeed, Morales elsewhere backs away from his claimedreliance on clear language: the very fact of a split of authority in court of appeal decisions, he argues, indicates that the language is not clear. (ABM 22.)) In fact, Morales’ argumentsall ask this Court to go beyondthe statutory text in determining the voters’ intent. If thatis to be done, however, then the best resource for determining whatvoters actually believed they were enacting is the Voter Information Guide. Reliance on the Voter Information Guide removesthe need for speculation about what information voters did or did not have: the Guide’s text was 2 (See William Lansdowne,letter to Initiative Coordinator, Office of Attorney General, Dec. 17, 2013, available at https://oag.ca.gov/system/ files/initiatives/pdfs/13-0060%20%28 13-0060%20%28Neighborhood% 20and%20School%20Funding%29%29.pdf [submitting proposedinitiative, with initiative text attached].) > The fact that Espinoza postdates Proposition 47’s drafting and submission also disproves Morales’ assumption that Proposition 47’s drafters intentionally chose not to include a statementthat the year of parole would apply “notwithstanding any other law.” (ABM 21.) Morales claims that the initiative’s drafters would have read the Espinoza opinion’s interpretation of Proposition 36 as indicating that inclusion of such a “notwithstanding” clause is the way to makeclear that custody credits do not apply. (ABM 21.) Since the Espinoza opinion did not exist when Proposition 47 was being drafted, Morales’ argument is wrong. literally mailed to voters’ homesandin their hands when they were making up their minds. The parties agree that the Voter Information Guide informedvoters that “[o]ffenders who are resentenced would be required to be onstate parole for one year, unless the judge chooses to remove that requirement.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Resentencing of Previously Convicted Offenders, p. 36.) This explanationis flatly incompatible with Morales’ reading of the Proposition’s text, since a resentenced offender whose parole is shortened (or eliminated) by excess credits will not “be on state parole for one year.” Morales argues that Proposition 47’s provision for parole would not have been of concern to the voters, because voters “would likely have understoodthat the main intent of Prop[osition] 47 [was] the reduction of law enforcement spending on low grade offenders.” (ABM 24.) But Morales may not pick and choose elements of the Proposition’s overall scheme. The Proposition enacted a trade-off, in which offenders would be resentenced and subject to parole unless the judge deemed parole unnecessary. Requiring offenders to serve a year of parole does not _ significantly harm the cost-savings goals of Proposition 47, given how muchless expensive parole is than prison. Any cost concerns would have been amply dealt with by voters’ expectation that judges would exercise their discretion wisely, withholding parole (andits attendant costs)in the cases of offenders whodid not need it. For offenders who the judge thought did require parole, voters would understand as a matter of common sense that parole would serve valuable functions of reintegrating offenders and safeguarding the community. (See People’s OpeningBrief on the Merits 14). Morales’ case underscores why voters would want those functions fulfilled for a resentenced offender: Given Morales’ prior conviction for robbery (see CT 19), the judge here—like the voters as a general matter—deemedit unwise to release him from custody with no further control or supervisionatall. In proposing that the one-year parole mandate should be frequently without effect, Morales essentially asks this Court to concludethat the ballot materials were not only unclear but affirmatively misleading. The fact that parole is specifically provided for in the statute and mentionedin the Voter Information Guide showsthat the special functions of parole were intended to be served. That intention should be given effect. Ill. THISCOURT SHOULD SET ASIDE THE TRIAL COURT’S REVISED ORDER APPLYING CREDITS WHILE THIS APPEAL WAS PENDING Morales arguesthat the trial court’s July 25, 2015, order that awarded him excess custody credits under section 2900.5 on his parole under section 1170.18, subdivision (d), cannot be challenged because the People did not appeal the issue. (ABM 30-31.) Morales further asserts that respondent’s challenge fails substantively because the asserted credit error made thetrial court’s original resentencing order unauthorized andvoid, givingthetrial court jurisdiction to correct the error later even though the case was on appeal. (ABM 31-32.) For the reasons we have explained,the trial court’s original order on November 18, 2014, which did not award section 2900.5 excess custody credits toward parole, was correct, and thus, not unauthorized. The filing of Morales’ notice of appeal divested thetrial court ofjurisdiction until such time as this appealis finally decided andthe remittitur issues. (Peoplev. Alanis (2008) 158 Cal.App.4th 1467, 1472.) The action by thetrial court on July 25, 2015, was thus null and void for lack ofjurisdiction. (/d. at p. 1473.) Asa result, that order may beset aside at any time, whether or not there was an objection or appeal. (People v. Mendez (1991) 234 Cal.App.3d 1773, 1781.) In any case, when this Court reverses the Court of Appeal’s decision with respect to the application of credits, the matter will be remandedto the trial court. As in People v. Perez (1979) 23 Cal.3d 545, 554, that in itself will require the Superior Court to reconsiderits sentencing order. (See ibid. [“on remandthetrial court will be freeto re- determine the matterin light of our holding”].)" CONCLUSION The Court of Appeal’s judgment should be reversed. Dated: December 16, 2015 Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General CHARLES C. RAGLAND Supervising Deputy Attorney General Marun & Meg MARVIN E. MIZELL Deputy Attorney General Attorneysfor Plaintiffand Respondent $D2015802248 812223 12.docx * Morales agrees with the People that, in any event, a person resentenced under Proposition 47 should “not earn ‘pre-sentence’ credits for time spent in custody following sentencing and awaiting resentencing (i.e., prison custody).” (ABM 27 fn.5.) As the People have observed. there would be value in the Court reiterating that limitation if custody credits are held to apply to Proposition 47 parole. (See People’s Opening Brief on the Merits, pp. 16-18.) CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 2,553 words. KAMALAD. HARRIS Attorney General of California MARVIN E. MIZELL Deputy Attorney General Attorneysfor Plaintiffand Respondent Dated: December 16, 2015 DECLARATIONOF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Morales No.: $228030 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. | am 18 years ofage or older and nota party to this matter. I am familiar with the businesspractice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On December16, 2015, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereofenclosed in a sealed envelope with postage thereonfully prepaid, 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, addressedas follows: Christian C. Buckley Clerk of the Court Buckley & Buckley Central Justice Center 9921 Carmel Mountain Rd. #355 Orange County Superior Court San Diego, CA 92129 700 Civic Center Drive West Attorney for Appellant Santa Ana, CA 92701 (2 Copies) Fourth Appellate District The Honorable Tony J. Rackauckas Division Three District Attorney Court of Appeal of the State of California Orange CountyDistrict Attorney's Office P.O. Box 22055 401 Civic Center Drive West Santa Ana, CA 92702 Santa Ana, CA 92701 and, furthermore J declare, in compliance with California Rules of Court, rules 2.251(i)(1)(A)- (D) and 8.71 (A(1)(A)-(D), | electronically served a copy of the above document on December 16, 2015, to Appellate Defenders, Inc.'s electronic service address eservice-criminal@adi- sandiego.com and to Appellant's attorney's (Christian C. Buckley) electronic service address ccbuckley75@gmail.com by5:00 p.m. onthe close ofbusiness day. ] declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on December 16, 2015, at San Diego, California. \ € C. Pasquali @Vesguale Declarant Sign¢jture SD201 5802248 81222028.doc