People v. Rodriguez CA2/6

Filed 2/25/16 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265167 (Super. Ct. No. 2013003058) Plaintiff and Respondent, (Ventura County)

v.

ANDREW LUIS RODRIGUEZ,

Defendant and Appellant.

Andrew Luis Rodriguez appeals from an order recalling his felony sentence, resentencing him to misdemeanors, 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, i.e., the number of days by which his time served in prison exceeds his misdemeanor sentence. He also contends that the period of misdemeanor parole must be reduced by the number of days that he was released from prison on Post Release Community Supervision (PRCS). We affirm. Factual and Procedural Background

In March 2013 appellant pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and felony receiving stolen property. (§ 496, subd. (a).) In May 2013 he was sentenced to prison for two years, eight months. The trial court

1 Unless otherwise stated, all statutory references are to the Penal Code.

suspended execution of the sentence and placed appellant on formal probation for 36 months on condition that he serve 184 days in county jail. In August 2013 appellant admitted probation violations. Probation was revoked, and the trial court ordered into effect the previously suspended prison sentence of two years, eight months. Appellant received credits totaling 328 days for time served. In July 2014 appellant was released from prison on PRCS. In April 2015 his probation officer filed a petition for revocation of PRCS. The officer alleged, "The offender is before the Court for his 5th violation [of PRCS] since his release from state prison on 7- 04-14." The fifth violation consisted of the following acts: (1) appellant had failed to report to the probation officer as directed, (2) he had failed to appear for a psychological assessment to assist in treatment planning, and (3) he had admitted using methamphetamine two days earlier. The court found appellant in violation of PRCS and ordered him to serve 90 days in county jail. Appellant filed a petition for recall of his sentence and for resentencing to misdemeanors pursuant to subdivisions (a) and (b) of section 1170.18. On April 21, 2015, the court granted the petition and reduced both felony offenses to misdemeanors. It ordered appellant to serve 364 days in jail for possession of methamphetamine and 240 days, consecutively, for receiving stolen property. Appellant received credit for time served and was placed on misdemeanor parole for one year pursuant to subdivision (d) of section 1170.18. 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 and possession of methamphetamine were punishable either as a felony or a misdemeanor. Proposition 47 amended section 496, subdivision (a) to make receiving stolen property 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. It amended section 11377, subdivision (a) to make