People v. Arias CA4/2

Filed 9/2/16 P. v. Arias CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G051750

v. (Super. Ct. No. 14CF2054)

FELIPE ARIAS, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Vickie Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part, reversed in part, and remanded. Leonard J. Klaif, 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, A. Natasha Cortina and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

Felipe Arias appeals from the trial court’s postjudgment order granting his petition to recall his sentence and reduce his drug possession conviction to a misdemeanor. Arias argues the trial court imposed an improper misdemeanor sentence, erred by imposing parole, and was required to apply any excess custody credits to reduce his parole period. The Attorney General concedes the court imposed an improper misdemeanor sentence. After briefing was complete here, the California Supreme Court filed its opinion in People v. Morales (2016) 63 Cal.4th 399 (Morales). We ordered the parties to file supplemental letter briefs on the effect of Morales on this case. They have done so. We agree the trial court erred when sentencing Arias on the misdemeanor but conclude his other contentions are meritless. We affirm in part, reverse in part, and remand the matter to the trial court for further proceedings. FACTS In August 2014, Arias pleaded guilty to possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). As part of a negotiated plea deal, Arias agreed to serve 16 months in prison and the prosecution agreed to dismiss Arias’s prior conviction and prison term allegations. The trial court sentenced Arias to the low term of 16 months in prison. On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which became effective the following day. (See Pen. Code, § 1170.18, all further statutory references are to the Penal Code.) On January 29, 2015, Arias was released on postrelease community supervision (PRCS). The following month, Arias filed a petition to be resentenced pursuant to section 1170.18. At a hearing on the petition, Arias’s counsel requested the trial court grant the petition pursuant to section 1170.18, subdivision (f), and not section 1170.18,