People v. Garibay CA4/3

Filed 3/21/16 P. v. Garibay 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G051431

v. (Super. Ct. No. 14WF0431)

RODRIGO BRENES GARIBAY, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Christopher Evans, Commissioner. Affirmed in part, reversed in part, and remanded with directions. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Rodrigo Brenes Garibay appeals an order granting his petition for resentencing under Proposition 47. Although he approves of the trial court’s reduction of his felony conviction to a misdemeanor, he contends the court erred in subjecting him to a period of parole. We disagree. However, we do agree with appellant that his excess custody credits should be counted toward his parole period and eligible fines. Therefore, we affirm in part, reverse in part and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On April 28, 2014, appellant pleaded guilty to the felony charge of receiving stolen property. (Pen. Code, § 496, subd. (a).)1 He also admitted having suffered a prior strike conviction and served two prior prison terms. (§§ 667, subds. (d)- (e)(2), 1170.12, subds. (b)-(c)(2), 667.5, subd. (b).) As part of the plea agreement, the trial court struck the prior strike and prison terms, dismissed a misdemeanor charge of possessing burglary tools and sentenced appellant to 16 months in prison with credit for time served. On October 9, 2014, appellant was released from prison and placed on postrelease community supervision (PRCS). Two months later, he violated the terms of his release, and a hearing on that matter was set for January 20, 2015. That same day, appellant petitioned for resentencing under Proposition 47. At the hearing, the prosecutor did not object to resentencing, but he did request appellant be placed on parole due to his lengthy criminal record. Appellant opposed further supervision given he had already served his underlying prison sentence. However, the court found he was in need of continued supervision. Therefore, 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 his parole term.