People v. Hernandez CA4/3

Filed 7/21/15 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, G051160 Plaintiff and Respondent, (Super. Ct. Nos. 12CF1489, R-01735) v. OPINION RAUL HERNANDEZ,

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, 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, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Raul Hernandez contends that under the voters’ recent enactment of Proposition 47, “The Safe Neighborhoods and Schools Act” (codified as pertinent here in Penal Code section 1170.18; all further undesignated statutory references are to this code), the trial court should have granted his application to designate his felony drug possession offense (Health & Saf. Code, § 11377) as a misdemeanor because he had completed his two-year felony sentence (see § 1170.18, subd. (f)), rather than reducing the conviction to a misdemeanor by recalling his sentence and resentencing him to misdemeanor punishment that included a year on parole. (§ 1170.18, subds. (a), (b), (d).) As we recently explained in People v. Morales (June 26, 2015, G051142) __ Cal.App. __ (Morales), a person who is still under postrelease community supervision (PRCS, a parole analogue under county instead of state supervision; see § 3451) has not completed his or her “sentence” within the meaning of Proposition 47. Consequently, because Hernandez was still on PRCS at the time of his application, Proposition 47’s recall and resentencing procedure applied (§ 1170.18, subds. (a), (b), (d)), rather than the redesignation procedure that would have left him exempt from parole (id., subd. (f).) As we explained in Morales, however, a defendant resentenced under Proposition 47 is entitled to apply excess custody credits, if any, to reduce or eliminate any applicable parole period upon resentencing. (Morales, supra.) We therefore affirm in part, reverse in part, and remand with directions to the trial court to calculate and apply Hernandez’s credits. I FACTUAL AND PROCEDURAL BACKGROUND On May 18, 2012, the district attorney filed a complaint charging Hernandez with felony possession of methamphetamine (Health & Saf. Code, § 11377; count 1), misdemeanor evading a peace officer (Veh. Code, § 2800.1, subd. (a); count 2), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1, subd. (a); count 3). The complaint further alleged Hernandez had a prior