People v. Duenes CA2/6

Filed 5/21/15 P. v. Duenes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B260749

Plaintiff and Respondent, (Super. Ct. No. 2012011126)

v. (Ventura County)

JAIME DUENES,

Defendant and Appellant.

Jaime Duenes appeals from the judgment entered upon resentencing pursuant to the Safe Neighborhoods and School Act (the Act), enacted by Proposition 47. Appellant was convicted of a felony drug offense and sentenced to state prison. Pursuant to the Act, the trial court recalled the felony sentence and resentenced him to a misdemeanor. At the time of resentencing, appellant had been released from prison and was on postrelease community supervision (PRCS) for a period not exceeding three years. Appellant argues that the trial court erroneously continued him on PRCS for the remaining balance of the three-year period. We agree. The court should have placed him on misdemeanor parole for one year. Accordingly, we reverse. Background In March 2012 a felony complaint was filed charging appellant with one count of possession of methamphetamine (Health & Saf. Code, § 1377, subd. (a)), at that

time an alternate felony-misdemeanor, and one count of being under the influence of a controlled substance (Id., § 11550, subd. (a)), a misdemeanor. The complaint alleged one prior separate prison term (Pen. Code, § 667.5, subd. (b))1 and one prior serious or violent felony conviction ("strike") within the meaning of California's "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Pursuant to a plea bargain, appellant pleaded guilty to felony possession of methamphetamine and admitted both the prior prison term and the strike. The misdemeanor charge was dismissed. Before pleading guilty, appellant initialed the following preprinted provisions in a Felony Disposition Statement: "I could be sentenced to the state prison for a maximum possible term of 7 years. [¶] After I have served my prison term, I may be subject to a maximum period of parole or post-release community supervision of 3 years." In open court the prosecutor informed appellant "that the Court has offered to sentence you to no more than 32 months in prison followed by a three-year parole period." The trial court dismissed the strike, suspended the imposition of sentence, and placed appellant on formal probation for 36 months on condition that he serve 365 days in county jail. Probation was later revoked, and he was sentenced to prison for two years, four months. In October 2013 appellant was released from prison to PRCS for a period not exceeding three years. In November 2014 he filed a petition for recall of his sentence and for resentencing pursuant to the Act. The trial court granted the petition and resentenced appellant to a misdemeanor. The court ordered appellant to serve 365 days in county jail. Because he was entitled to credit for time served of 365 days, the court ordered that "the jail sentence is deemed served." The prosecutor conceded that "the only post-sentence supervision available . . . is one year of misdemeanor parole." The court disagreed. It ordered that appellant shall "remain[] on PRCS for the balance of the original [three-year] term following [his] release from prison." The court noted that, pursuant to subdivision (d) of section 1170.18, it has discretion to release a 1 All further statutory references are to the Penal Code unless otherwise stated. 2