People v. Espinoza CA2/6

Filed 2/16/16 P. v. Espinoza CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B262094 (Super. Ct. No. CR40341) Plaintiff and Respondent, (Ventura County)

v.

JOSE SERRANO ESPINOZA,

Defendant and Appellant.

Jose Serrano Espinoza appeals the trial court's order resentencing him under Proposition 47 with credit for time served and placing him on one year of supervised parole. (Pen. Code,1 § 1170.18). Appellant contends the court erred in concluding that his excess custody credits do not apply against his term of parole. We affirm. FACTS AND PROCEDURAL HISTORY In 1997, appellant was convicted in a court trial of petty theft with prior convictions (§ 666) and second degree burglary (§ 459). The court also found true allegations that appellant had five prior strike convictions (§ 667, subds. (c), (e)(2), 1170.12, subds. (a), (c)(2)) and had served a prior prison term (§ 667.5, subd. (b)). Appellant was sentenced to a state prison term of 25 years to life.

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

In February 2013, appellant petitioned for resentencing as a second-strike offender under Proposition 36. The court granted the petition and sentenced appellant to seven years and four months in state prison, consisting of the upper term of six years for the burglary plus a consecutive term of one year and four months (one-third the midterm) on the section 666 count. Appellant was awarded 5,690 days of custody credit and released from custody with three years of postrelease community supervision (PRCS) (§ 3451). In November 2014, appellant petitioned for resentencing under Proposition 47 (§ 1170.18). The court granted the petition and reduced both of appellant's convictions to misdemeanors. Appellant was ordered to serve 180 days in county jail with credit for time served and was placed on one year of supervised parole in accordance with section 1170.18, subdivision (d). The court rejected appellant's claim that his excess custody credits should be applied against his term of parole. DISCUSSION Appellant contends the trial court erred in refusing to deduct his excess presentence custody credits from the one-year supervised misdemeanor parole term. He claims the result is contrary to section 2900.5 and violates equal protection principles. We rejected similar claims in People v. Hickman (2015) 237 Cal.App.4th 984 (review granted August 26, 2015, S227964) and People v. McCoy (2015) 239 Cal.App.4th 431 (review granted Oct. 14, 2015, S229296).2 Proposition 47 provides that the trial court, on resentencing, may order parole supervision "in addition to any resentence imposed by the court, and without consideration of any [custody] credit that the petitioner may have earned. . . ." (Couzens, Bigelow & Prickett, Sentencing California Crimes, § 25:6, pp. 25-62.) Appellant relies on In re Sosa (1980) 102 Cal.App.3d 1002 and section 2900.5, subdivision (a), for the general rule that excess custody credits apply against a term of parole.