People v. Osuna CA2/6

Filed 12/715 P. v. Osuna CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B261444 (Super. Ct. No. 2008049610) Plaintiff and Respondent, (Ventura County)

v.

MARK OSUNA,

Defendant and Appellant.

Mark Osuna appeals a Proposition 47 resentencing order. Previously, he was convicted of possession of heroin and was sentenced to two years state prison. He 1 was paroled from prison in 2010. (Pen. Code, § 1170.18, subd. (d).) The trial court recalled the sentence and resentenced appellant to a misdemeanor one year county jail with credit for time served plus one year supervised parole. (§ 1170.18, subd. (d).) The trial court also revoked the state prison parole and sentenced appellant to 140 days jail for absconding after the Proposition 47 petition was filed. We reverse the state prison parole revocation because that parole was terminated by operation of law when the trial court recalled the prison sentence and resentenced appellant. As modified, the judgment is affirmed.

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

Procedural History In 2008 appellant pled guilty to possession of heroin (Health & Saf., Code, § 11350, subd. (a)) and admitted a prison prior enhancement (§ 667.5, subd. (b)). The trial court suspended imposition of sentence and granted Proposition 36 drug probation (§ 1210.1) which was terminated in 2009. On September 17, 2009, the trial court revoked probation and sentenced appellant to two years state prison. Appellant was paroled on August 11, 2010. Between that date and November 9, 2014, appellant violated parole 19 times. Ten of the parole violations were for absconding. 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 & Prickett, Sentencing California Crimes (The Rutter Group 2015) § 25.1, pp. 25-1 to 25-2.) Proposition 47 makes certain drug possession offenses (Health & Saf. Code, §§ 11350; 11357, subd. (a); 11377) misdemeanors and provides that defendants previously sentenced to state prison on a qualifying drug offense may petition to be resentenced. (§ 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.) On November 10, 2014, appellant filed a Proposition 47 petition for resentencing. (§ 1170.18, subd. (a).) Before the trial court ruled on the petition, the California Department of Corrections and Rehabilitation (CDCR) filed a petition to revoke appellant's parole. On December 17, 2014, the trial court granted the Proposition 47 petition, recalled the state prison sentence, and sentenced appellant to 365 days county jail with credit for time served. The trial court imposed a one-year supervised parole term (§ 1170.18, subd. (d)) and ruled that the presentence custody credits (720 days) do not reduce the parole term. Appellant argued that it was "a new grant of parole" and that it