People v. Hickman

Filed 6/17/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B260928 (Super. Ct. No. 2007017002) Plaintiff and Respondent, (Ventura County)

v.

JONATHAN HOLLIS HICKMAN,

Defendant and Appellant.

Jonathan Hollis Hickman appeals a Proposition 47 resentencing order entered after he was convicted of possession of methamphetamine and previously 1 sentenced to two years state prison. (Pen. Code, § 1170.18.) The trial court resentenced appellant to one year county jail with credit for time served and ordered supervised parole for one year. (§ 1170.18, subd. (d).) Appellant contends that the trial court erred in ordering supervised parole because his presentence custody credits (423 days) exceed the one-year parole supervision period. We affirm. Proposition 47 provides that the trial court may, in its discretion, order one year of supervised parole without consideration of presentence custody credits.

1 All statutory references are to the Penal Code unless otherwise stated.

Procedural History In 2007 appellant pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) with three prison prior enhancements (§ 667.5, subd. (b)) and was granted probation. The trial court revoked probation on April 20, 2012 and sentenced appellant to two years state prison. Appellant was released on parole on November 24, 2014. On November 4, 2014, California voters enacted Proposition 47, "The Safe Neighborhoods and Schools Act," to maximize sentencing alternatives for nonserious, nonviolent crime. (Couzens & Bigelow, Proposition 47 "The Safe Neighborhoods and Schools Act" (February 2015), p. 6, at www.courts.ca. gov/documents/Prop-47-Information.pdf.) Proposition 47 makes certain drug possession offenses (Health & Saf. Code, §§ 11350, 11357, subd. (a), 11377) misdemeanors and provides that a drug offender previously convicted of a qualifying drug offense may petition to be resentenced under the new misdemeanor statute. (§ 1170.18, subd. (a).) Section 1170.18 subdivision (d) states in pertinent part: "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, unless the court in its discretion, as part of its resentencing order, releases the person from parole." (Italics added.) Appellant filed a Proposition 47 petition alleging that he had served a two- year prison sentence and was in county jail on a parole violation. The Ventura County District Attorney agreed that appellant was eligible for resentencing but argued that appellant should be placed on supervised parole pursuant to section 1170.18, subdivision (d). Defense counsel conceded that parole supervision was discretionary: "Mr. Hickman has been on parole in this case for the last four years and . . . parole doesn't appear to have been beneficial to either Mr. Hickman or probably society. . . . [T]his probably would be an appropriate case for the Court to exercise its discretion not to impose additional parole." Appellant also claimed that his excess