People v. Reyes CA2/6

Filed 3/21/16 P. v. Reyes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265038 (Super. Ct. No. 2010039576) Plaintiff and Respondent, (Ventura County)

v.

ANTHONY ROBERT REYES,

Defendant and Appellant.

Anthony Robert Reyes appeals from an order recalling his felony sentence, resentencing him to a misdemeanor, 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, in violation of subdivision (e) of section 1170.18, the trial court resentenced him to a term longer than his original sentence. We affirm. Factual and Procedural Background

In March 2011 appellant pleaded guilty to felony receiving stolen property. (§ 496, subd. (a).) He admitted one prior prison term enhancement.

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

(§ 667.5, subd. (b).) He was sentenced to prison for three years: two years for receiving stolen property plus one year for the prior prison term enhancement. The trial court suspended execution of the sentence and placed appellant on formal probation for 36 months on condition that he serve 260 days in county jail. In July 2011 appellant admitted probation violations. The trial court terminated probation and ordered into effect the previously suspended three-year prison sentence. In September 2012 appellant was released from prison on postrelease community supervision (PRCS) for a period not exceeding three years. In April 2015 appellant filed a petition to recall his sentence and resentence him to a misdemeanor pursuant to subdivisions (a) and (b) of section 1170.18. The trial court granted the petition and resentenced him to 364 days in county jail. The court terminated PRCS, gave appellant credit for time served of 364 days, and placed him 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 was 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. Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section 1170.18 permits persons who are "currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . [to] petition for a recall of sentence . . . [and] to request resentencing" under Proposition 47. If the petitioner satisfies the criteria in