People v. Winner CA3

Filed 6/14/16 P. v. Winner CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C079939

Plaintiff and Respondent, (Super. Ct. Nos. CM035413, CM041745) v.

STACY ALAN WINNER,

Defendant and Appellant.

Defendant Stacy Alan Winner’s Penal Code section 1170.181 petition for resentencing on his conviction for possession of a controlled substance was granted by the trial court, which designated the crime a misdemeanor and imposed the same consecutive eight-month term as originally imposed for the offense, to be served in county jail rather than state prison.

1 Undesignated statutory references are to the Penal Code.

1

Defendant appeals from the court’s order, contending that he will earn fewer credits against his sentence in county jail rather than state prison, which impermissibly gives him a longer term than originally imposed. Finding that the ability to earn credits is not a part of the term imposed for a crime, we affirm the trial court’s order. BACKGROUND We dispense with the facts of defendant’s crimes as they are unnecessary to the resolution this appeal. Defendant pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)) and five prior prison terms (§ 667.5, subd. (b)) in case No. CM035413. The trial court granted defendant’s motion to strike the strike prior, suspended imposition of sentence, and placed defendant on 48 months’ formal probation. Defendant later pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. CM041745 and admitted violating his probation in case No. CM035413. The trial court sentenced defendant to seven years eight months in state prison for the two cases. Part of this sentence was a consecutive eight-month term for the possession count. In November 2014, defendant filed a section 1170.18 petition for resentencing on the possession conviction in case No. CM035413. The trial court granted the petition, reducing the possession conviction to a misdemeanor, and resentencing defendant to a consecutive eight-month county jail term on that count. DISCUSSION The passage of Proposition 47 which added section 1170.18, which provides for any defendant “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . .”