People v. Lateano CA2/6

Filed 2/25/16 P. v. Lateano CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265542 (Super. Ct. No. 2012036860) Plaintiff and Respondent, (Ventura County)

v.

DOMINIC LATEANO,

Defendant and Appellant.

Dominic Lateano appeals the trial court's order resentencing him under Proposition 47, the Safe Neighborhoods and Schools Act ("the Act"), and placing him on supervised parole. (Pen. Code, § 1170.18, subd. (d).)1 He contends he is not subject to parole under Proposition 47 because he was not "currently serving a sentence" within the meaning of section 1170.18, subdivision (a) while he was on postrelease community supervision (PRCS). In the alternative, he asks for credit against the parole period for time he served on PRCS. We affirm. BACKGROUND In November 2012, Lateano was convicted upon plea of guilty to petty theft with three or more priors. (§ 666, subd. (a).) He completed his prison term in November 2013 and was placed on PRCS. (§ 3451, subd. (a).) He repeatedly violated the conditions of his PRCS. From August 2014 to March 2015, he was allowed to participate

1 All statutory references are to the Penal Code.

in re-entry drug court, but the trial court terminated his participation and returned him to PRCS when he absconded. Lateano filed a petition for resentencing under Proposition 47 in November 2014. He did not appear for the initial hearing on the Proposition 47 petition or for a continued hearing. Lateano did not submit to drug testing or report to the probation department as required by the terms of his PRCS. On May 21, 2015, the trial court found Lateano violated the terms of PRCS. It sentenced him to 53 days time served. The court also entertained and granted Lateano's motion to reduce his felony conviction to a misdemeanor pursuant to Proposition 47. The court placed Lateano on supervised parole pursuant to section 1170.18, subdivision (d) (Proposition 47 parole). The trial court denied Lateano's request to deduct excess custody credits from the parole period. DISCUSSION Proposition 47 Parole Lateano contends he is not subject to Proposition 47 parole because he "completed" his sentence in 2013 when he was released from prison and placed on PRCS. We disagree. In 2014, the voters enacted Proposition 47, which reclassifies certain crimes from felonies to misdemeanors. A person who is "currently serving a sentence" for a felony offense that would be a misdemeanor under the Act may petition for a recall of sentence and resentencing under the Act. (§ 1170.18, subd. (a).) Upon resentencing, he or she "shall be given credit for time served and shall be subject to parole for one year following completion of his or her sentence, unless the court . . . releases the person from parole." (Id., subd. (d).) On the other hand, a person "who has completed his or her sentence" for a felony offense that would have been a misdemeanor under the Act may petition to have the offense reclassified as a misdemeanor and is not subject to Proposition 47 parole. (§ 1170.18, subd. (f).) Lateano did not complete his sentence when he was released from prison. His "sentence" included his unfinished PRCS term. (§ 3000, subd. (a)(1).) Section 3000,