People v. Krueger CA2/6

Filed 4/27/16 P. v. Krueger CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267229 (Super. Ct. No. 2013025776) Plaintiff and Respondent, (Ventura County)

v.

THERON KRUEGER,

Defendant and Appellant.

Theron Krueger appeals an order recalling his felony sentence for petty theft with three or more priors, resentencing him to a misdemeanor sentence, and placing him on supervised misdemeanor parole for one year. (Pen. Code, §§ 666, subd. (a), 1170.18 ["Proposition 47"].)1 We affirm. FACTUAL AND PROCEDURAL HISTORY On February 4, 2014, Krueger pleaded guilty to felony petty theft with three or more priors. (§ 666, subd. (a).) Krueger also admitted suffering a prior serious felony strike conviction in 2003 for robbery, and serving two prior prison terms. (§§ 211, 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) At sentencing, the trial court dismissed the strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, as well as the prior prison term findings. (§ 1385, subd. (a).) The

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

court then sentenced Krueger to a midterm two years imprisonment, imposed various fines and fees, and awarded him 233 days of presentence custody credit. On October 11, 2014, the California Department of Corrections released Krueger 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"].) On November 6, 2014, Krueger filed a petition to have his sentence recalled and to have his felony conviction reclassified as a misdemeanor, pursuant to Proposition 47 and section 1170.18. Following a hearing on July 30, 2015, the trial court redesignated Krueger's conviction as a misdemeanor violation of section 459.5, subdivision (a), and ordered him to serve 180 days in county jail with credit for time served. The court also ordered Krueger's PRCS successfully terminated and placed him on one-year supervised misdemeanor parole effective July 30, 2015, as authorized by section 1170.18, subdivision (d). The court denied Krueger's request to apply his excess custody credits against his term of parole as held by In re Sosa (1980) 102 Cal.App.3d 1002, 1005-1006. Krueger 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 for time served (excess custody credit or time served on PRCS) against his one- year misdemeanor parole term. DISCUSSION I. Krueger 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 October 11, 2014. In other words, Krueger asserts that PRCS is not part of his former felony sentence for purposes of resentencing pursuant to section 1170.18. On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which became effective the following day. (People v.