People v. Ming CA2/6

Filed 2/2/16 P. v. Ming CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B263610 (Super. Ct. No. 2012013475) Plaintiff and Respondent, (Ventura County)

v.

JASON WILLIAM MING,

Defendant and Appellant.

Appellant Jason William Ming 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 the trial court erred by resentencing him as a misdemeanant under subdivision (b) rather than designating his conviction as a misdemeanor under subdivision (f) and, in the alternative, that he is entitled to have the one-year period of misdemeanor parole and his fines and fees reduced by his “excess custody credits” on the felony commitment offense. We affirm and order correction of a minute order.

1 All statutory references are to the Penal Code.

FACTS AND PROCEDURAL BACKGROUND Appellant pled guilty to petty theft with a prior (§ 666, subd. (b)) and admitted both a strike and a prison prior allegation (§§ 667, subds. (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1), 667.5, subd. (b)). He was sentenced to prison for two years and eight months followed by a three-year parole term.2 After being released from custody and placed on parole, appellant applied to have his felony conviction designated a misdemeanor pursuant to subdivision (f) of section 1170.18. The trial court found that appellant was ineligible under subdivision (f) because he was on parole and therefore still serving his sentence. Instead, the trial court resentenced appellant as a misdemeanant under subdivision (b). It “reduc[ed] the charge . . . , which is presently a 666(b), to a 484 by virtue of the provisions of Proposition 47” and “order[ed] [appellant] to serve 180 days on that sentence,” which appellant had already satisfied. Appellant argued that to the extent the 783 days he had served in prison for his felony conviction exceeded the 180-day misdemeanor term to which he was resentenced, these “excess custody credits” should be deducted from any misdemeanor parole term. The trial court disagreed, imposing the full one year of misdemeanor parole under subdivision (d). In addition, it stated that “any excess fines and fee balances in this case are deemed satisfied by his extra credits.” DISCUSSION Completion of Appellant’s Sentence Appellant contends that because he had been released on parole when he applied for Proposition 47 relief, he had “completed his . . . sentence” (§ 1170.18, subd. (f)) and was not subject to misdemeanor parole. We disagree. A felony sentence “include[s] a period of parole supervision or postrelease community supervision.” (§ 3000, subd. (a)(1), italics added.) At sentencing the trial court must inform the