People v. Rose CA4/3

Filed 3/3/16 P. v. Rose CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051293

v. (Super. Ct. No. 08HF0098)

PHILLIP ARTHUR ROSE, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Christopher Evans, Commissioner. Reversed and remanded with directions. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

Per Proposition 47, the trial court placed appellant Phillip Arthur Rose on one year of parole after reducing his felony drug conviction to a misdemeanor. Appellant does not contest the imposition of parole in and of itself, but he does assert the court erred in failing to apply his excess custody credits toward his parole period and eligible fines. We agree. We thus reverse the court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKROUND In 2008, appellant pleaded guilty to felony drug possession and possessing drug paraphernalia, a misdemeanor. (Health & Saf. Code, §§ 11350, 11364.) He also admitted having suffered eight prior strike convictions and served four prior prison terms. (Pen. Code, §§ 667, subds. (d)-(e)(2), 1170.12, subds. (b)-(c)(2), 667.5, subd. (b).)1 As part of the plea agreement, the trial court struck seven of the strikes and two of the prison priors and sentenced appellant to eight years in prison. On January 9, 2015, appellant filed a petition for resentencing under section 1170.18, which was added to the Penal Code pursuant to Proposition 47. Although the prosecution did not object to resentencing, it did ask that appellant be placed on parole. Appellant objected to the imposition of parole given he had already accumulated eight years’ worth of custody credit on his underlying sentence. However, after reducing appellant’s felony conviction to a misdemeanor and resentencing him to 365 days in jail, the court placed him on parole for one year. In so doing, the court applied appellant’s custody credits toward his misdemeanor sentence but not toward the term of his parole. DISCUSSION Appellant argues the trial court erred by failing to reduce the length of his parole by his excess custody credits, i.e., the difference between the amount of custody credit he had on his original sentence and the term he received on resentencing. Appellant’s claim is well taken.