People v. Diaz CA2/6

Filed 12/15/15 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B264244 (Super. Ct. No. 2010001002) Plaintiff and Respondent, (Ventura County)

v.

DAVID RICHARD DIAZ,

Defendant and Appellant.

David Richard Diaz appeals from an order recalling his felony sentence, resentencing him to a misdemeanor, and placing him on misdemeanor parole for one year. The order was entered pursuant to Penal Code section 1170.18, enacted by Proposition 47.1 Appellant contends that he is entitled to have the one-year period of misdemeanor parole reduced by his "excess custody credits" and prior periods of parole on the felony commitment offense. We affirm. Factual and Procedural Background

In April 2010 appellant pleaded guilty to felony receiving stolen property. (§ 496, subd. (a).) He was sentenced to prison for two years and given credit for time served of 173 days. He was informed that, after his release from prison, he could be placed on parole for up to three years. In December 2010 appellant was released on parole. In March 2011 he absconded from parole supervision and was returned to custody for one year. In July 2012 he 1 All statutory references are to the Penal Code.

absconded a second time and was returned to custody for 100 days. In September 2012 he absconded a third time and remained at large until his arrest in February 2015. In March 2015 appellant filed an application to have his felony conviction designated a misdemeanor pursuant to subdivision (f) of section 1170.18. Appellant alleged that he had completed his felony sentence. The prosecutor contended that appellant was still serving his felony sentence but was eligible for resentencing to a misdemeanor pursuant to subdivisions (a) and (b) of section 1170.18. The prosecutor requested that appellant be resentenced to 364 days on the misdemeanor, that he be given credit for time served of 364 days, and that he be placed on misdemeanor parole for one year pursuant to subdivision (d) of section 1170.18. Defense counsel protested that the court could not impose a period of misdemeanor parole because appellant had "completed the whole sentence." Counsel asserted that his client was entitled to 364 days of actual custody credit and 364 days of conduct credit. The trial court resentenced appellant to a misdemeanor and placed him on parole for one year. The trial court stated, "The fact that he has absconded from parole for two and a half years makes that an appropriate use of discretion." Proposition 47 "On November 4, 2014, the voters enacted Proposition 47, 'the Safe Neighborhoods and Schools Act' . . . , which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Before the passage of Proposition 47, receiving stolen property was punishable either as a felony or a misdemeanor. Proposition 47 amended section 496, subdivision (a) to make the offense punishable only as a misdemeanor if the value of the stolen property does not exceed $950 and the defendant has not previously been convicted of specified serious felonies. Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section 1170.18 permits persons who are "currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . [to] petition for a recall of sentence . . . [and] to request resentencing" under Proposition 47. If the petitioner satisfies the criteria in subdivision (a), subdivision (b) provides that "the