People v. Erro CA4/3

Filed 4/5/16 P. v. Erro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G051430

v. (Super. Ct. No. 14HF0928)

ANDREW JULIAN ERRO, 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. James M. Crawford, 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, Charles C. Ragland and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Andrew Julian Erro appeals from a Proposition 47 resentencing order. He contends the court should not have imposed parole, or should have imposed a shorter parole period. He also asserts the court should have: applied his excess custody credits to his parole period and eligible fines; reduced his restitution and parole revocation fines; and stricken his controlled substance offender registration requirement. We conclude the court correctly imposed parole and defendant forfeited his restitution and parole revocation fines claim. However, we agree the court was required to ensure the parole period did not exceed his original sentence, and to apply his excess custody credits to the parole period and any eligible fines. Finally, the controlled substance offender registration requirement has been vacated so that issue is moot. FACTS AND PROCEDURAL HISTORY In May 2014, defendant pled guilty to felony possession of methamphetamine (count 1), and misdemeanor possession of controlled substance paraphernalia (count 2), and admitted various prior conviction allegations. The court sentenced him to 16 months in prison on count 1, suspended imposition of sentence on count 2, awarded him 146 days custody credit, and ordered him to pay a certain mandatory fines and to register as a controlled substance offender. In January 2015, defendant filed an application to recall his sentence under Penal Code section 1170.18, subdivision (a) (all subsequent undesignated statutory references are to this code) or, in the alternative, to redesignate his felony conviction on count 1 as a misdemeanor under section 1170.18, subdivision (f). The court denied relief under subdivision (f) on the grounds defendant was then on post-release community supervision (PRCS) and thus was still serving his original sentence. But the court granted relief under subdivision (a), reduced defendant’s felony conviction on count 1 to a misdemeanor, resentenced him to 365 days in county jail, awarded him 365 days credit for time served and, over his objection, placed him on one year of parole under section 1170.18, subdivision (d).