People v. Fernandez CA2/6

Filed 3/3/16 P. v. Fernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B264984 (Super. Ct. No. 2011045339) Plaintiff and Respondent, (Ventura County)

v.

ANDRES FERNANDEZ,

Defendant and Appellant.

Andres Fernandez appeals the trial court's order resentencing him 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 refusing to apply his excess custody credits against his term of parole. We affirm. FACTS AND PROCEDURAL HISTORY In January 2012, appellant pled guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Imposition of sentence was

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

suspended and he was placed on 36 months formal probation with terms and conditions. In June 2013, following appellant's fifth violation of probation, the court revoked probation, sentenced him to two years in state prison, and awarded 672 days presentence custody credit. In July 2013, appellant was released from custody and placed on post- release community supervision (PRCS). His PRCS status was revoked in September 2014, and again in April 2015. He was ordered each time to serve 120 days in county jail and was awarded presentence custody credit. On April 20, 2015, appellant applied to have his drug possession charge reduced to a misdemeanor under Proposition 47 (§ 1170.18, subd. (a)). The court granted the application, terminated appellant's PRCS status, and ordered him to serve 364 days in county jail with credit for time served. The court also placed appellant on one year of misdemeanor parole pursuant to subdivision (d) of section 1170.18. 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 "violates the will of the voters" who enacted Proposition 47 and is contrary to section 1170, subdivision (a)(3), and section 2900.5, subdivision (a). We rejected similar claims in People v. Hickman (2015) 237 Cal.App.4th 984 (review granted Aug. 26, 2015, S227964) and People v. McCoy (2015) 239 Cal.App.4th 431 (review granted Oct. 14, 2015, S229296).2 In