People v. Padilla CA2/6

Filed 4/26/16 P. v. Padilla CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B264642 (Super. Ct. No. 2012009946) Plaintiff and Respondent, (Ventura County)

v.

ANTONIO PADILLA,

Defendant and Appellant.

Antonio Padilla appeals an order recalling his felony sentence, resentencing him to a misdemeanor sentence, and placing him on supervised misdemeanor parole for one year, pursuant to Penal Code section 1170.18, subdivisions (a)-(d).1 We affirm. FACTUAL AND PROCEDURAL HISTORY On May 9, 2012, Padilla pleaded guilty to possession of a controlled substance, methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He also admitted suffering a 1997 serious felony strike conviction for assault with a deadly weapon, and serving four prior prison terms. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) The trial court dismissed the felony strike conviction pursuant to section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, as well as three of the four prior prison term findings. It then sentenced Padilla to serve two years four months in prison, consisting of 16 months for the drug possession conviction and one year

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

for the prior prison term finding. The court imposed a $240 restitution fine, a $240 parole revocation restitution fine (stayed), a $40 court security assessment, a $200 laboratory fee, a $600 drug program fee, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Health & Saf. Code, §§ 11372.5, 11372.7, subd. (a); Gov. Code, § 70373.) It awarded Padilla 112 days of presentence custody credit. On July 30, 2013, the California Department of Corrections released Padilla from prison into the postrelease community supervision program ("PRCS") for a period not to exceed three years. (§ 3450 et seq. ["Postrelease Community Supervision Act of 2011"].) During the PRCS period, Padilla frequently violated ("over ten times") the terms of his community supervision program. On April 7, 2015, Padilla filed a petition to have his sentence recalled and to have his felony conviction reclassified as a misdemeanor, pursuant to section 1170.18. Padilla asserted that he had completed his sentence and was not subject to any misdemeanor parole period according to section 1170.18, subdivision (f). Alternatively, he contended that he was entitled to have any excess custody credits applied against his term of parole as held by In re Sosa (1980) 102 Cal.App.3d 1002, 1005-1006. Following a hearing, the trial court redesignated Padilla's conviction as a misdemeanor and ordered him to serve one year in county jail with credit for time served. The court also terminated Padilla's PRCS status, and placed him on one-year supervised misdemeanor parole effective April 13, 2015, as authorized by section 1170.18, subdivision (d). The court applied Padilla's excess custody credit to his outstanding fines and fees, but not to his misdemeanor parole term. Padilla appeals and contends that: 1) the trial court erred by not resentencing him pursuant to section 1170.18, subdivision (f), and 2) he is entitled to credit against his one-year misdemeanor parole term for time served in custody and on PRCS, pursuant to section 2900.5, subdivision (c) and In re Sosa, supra, 102 Cal.App.3d 1002, 1005-1006. DISCUSSION Padilla argues that the trial court erred when it treated his petition for resentencing as one filed pursuant to section 1170.18, subdivision (a), rather than subdivision (f), because he had completed his sentence when he was released from prison on