People v. Dumas CA2/6

Filed 12/715 P. v. Dumas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B263349 (Super. Ct. No. 2012008306) Plaintiff and Respondent, (Ventura County)

v.

SHANE DOUGLAS DUMAS,

Defendant and Appellant.

Shane Douglas Dumas was subject to post release community supervision (PRCS) following a felony conviction for possession of a controlled substance (Health & Saf. Code, § 11377), when he applied to have his felony conviction designated a misdemeanor. (Pen. Code, § 1170.18.)1 The trial court found that appellant was "currently serving a sentence" for a qualifying felony within the meaning of section 1170.18, subdivision (a). It recalled the felony sentence and resentenced appellant to a misdemeanor under subdivision (b) of the statute. The trial court further ordered that appellant "remain[] on PRCS for the balance of the original term following [appellant's] release from prison." Appellant contends the trial court erred, both when it applied subdivision (a) of the statute and when it continued his PRCS term. Respondent agrees the trial

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

court erred with respect to the continuation of PRCS, but contends the resentencing order was otherwise correct. We agree with respondent. Appellant was properly resentenced under section 1170.18, subdivisions (a) and (b) because he had not completed PRCS and was therefore "currently serving a sentence" for a qualifying felony. The trial court erred, however, in continuing appellant on PRCS after resentencing because that is not one of the options available to the trial court under section 1170.18, subdivision (d). The matter is remanded to permit the trial court to exercise its discretion under subdivision (d) of section 1170.18. In all other respects, the resentencing order is affirmed. Facts and Procedural History In December 2012, appellant was convicted by guilty plea of possession of a controlled substance, a felony. (Health & Saf. Code, § 11377.) He was sentenced, as a second strike offender, to 32 months in state prison. In October 2013, appellant was released from prison on Post Release Community Supervision (PRCS) for a period not to exceed three years. He immediately violated the terms of his PRCS release by failing to report to his probation officer. Appellant was arrested and, on December 5, 2013, signed a PRCS waiver and agreed to serve 60 days in jail. A few weeks later, appellant reported to the probation office for the first time and tested positive for methamphetamine. He was placed on a waiting list for drug treatment. Appellant stopped reporting and did not follow through on treatment. Another warrant was issued for his arrest. Appellant was arrested in April 2014 on that outstanding warrant and a new offense. He signed another PRCS waiver and agreed to serve 120 days in custody. In late May, appellant was granted an early release from custody to enter residential drug treatment. He remained in treatment for less than two months before leaving the program without permission. About a month later, in September 2014, appellant was again arrested for violating his PRCS conditions and for additional drug possession offenses. The probation agency moved to revoke appellant's PRCS. Appellant filed an application to