People v. Neuman CA2/6

Filed 9/22/15 P. v. Neuman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B263111 (Super. Ct. No. 2009020448) Plaintiff and Respondent, (Ventura County)

v.

CHARLES NEUMAN,

Defendant and Appellant.

Charles Neuman appeals a Proposition 47 resentencing order entered after he was previously sentenced to four years state prison for possession of 1 methamphetamine. (Pen. Code, § 1170.18, subds. (b) & (d).) The trial court reduced the felony conviction to a misdemeanor, resentenced appellant to one year county jail with credit for time served, and ordered one year supervised parole. (§ 1170.18, subd. (d).) Appellant contends that the trial court lacked the authority to order supervised parole because he completed his prison sentence within the meaning of section 1170.18, subdivision (f). Appellant further claims that the trial court erred in not deducting his custody credits (2,312 days) from the supervised parole term. We affirm.

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

Procedural History In 2009 appellant pled guilty to possession of a controlled substance (Health & Safety Code, § 11377, subd. (a)) and admitted serving six prior prison terms (§ 667.5, subd. (b)). The trial court imposed a four year prison sentence, suspended execution of sentence, and granted probation. Appellant violated probation and was sentenced to prison on March 29, 2010. On November 30, 2011, appellant was released from prison and placed on postrelease community supervision (PRCS) pursuant to the Postrelease Community Supervision Act of 2011. (§§ 3450; 3000.08, subd. (b).) On January 30, 2015, appellant filed a Proposition 47 petition to designate the conviction as a misdemeanor pursuant to section 1170.18, subdivisions (f) and (g). Appellant claimed that he had completed his prison sentence and was not subject to court-ordered parole supervision. The trial court found that appellant was still serving the felony sentence, reduced the conviction to a misdemeanor, and resentenced appellant. Appellant was ordered to serve 365 days county jail with credit for time served, awarded 2,312 days presentence credit to be applied to appellant's fines and fees (§ 2900.5, subd. (a)), and placed on one year supervised parole. (§1170.18, subd. (d).) Proposition 47 Supervised Parole On November 4, 2014, California voters enacted Proposition 47, "The Safe Neighborhoods and Schools Act," to maximize sentencing alternatives for nonserious, nonviolent crimes. (See Couzens & Bigelow, Proposition 47 "The Safe Neighborhoods and Schools Act" (February 2015), p. 6, at www.courts.ca.gov/docu- ments/Prop-47-Information.pdf.) Proposition 47 makes certain drug possession offenses (Health & Saf. Code, § 11350, 11357, subd. (a), 11377) misdemeanors and provides that a defendant "currently serving a sentence" for a qualifying drug offense may file a petition to have his/her sentence recalled. ( § 1170.18, subd. (a).) If the defendant does not pose an unreasonable risk of danger to public safety (§ 1170.18, subd. (b)) and is resentenced, defendant is entitled to credit for time served and is subject to one year supervised parole. (§ 1170.18, subd. (d).) In those cases where the defendant has