People v. Mangrobang CA4/2 ( 2015 )

Filed 10/7/15 P. v. Mangrobang 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent, E061223
v. (Super.Ct.No. SWF1203401)
EFREN ESTRADA MANGROBANG, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed as modified.
Sheila Quinlan, 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, and Arlene A. Sevidal and
Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, Efren Estrada Mangrobang, is serving eight years in
prison as a second striker after a jury convicted him of charges stemming from a traffic
stop during which deputies found drugs, stolen credit cards, and a handgun magazine in
his car. Defendant asks this court to (1) credit him with 51 additional days of presentence
custody credits and (2) reduce to misdemeanors his drug possession and receiving stolen
property convictions under Proposition 47, because his conviction was not yet final when
Proposition 47 was enacted.
We modify the judgment to reflect the correct number of presentence custody
credits but otherwise affirm.
FACTS AND PROCEDURE
1. Counts 1 through 5
On January 10, 2012, a Riverside County deputy sheriff pulled defendant over in
his vehicle for having expired license tags. Because defendant exhibited symptoms of
nervousness, sweating, and slow-reacting pupils, the deputy arrested him and had him
provide a urine sample for drug testing. The sample came back positive for
methamphetamine. A search of defendant’s vehicle turned up a high capacity nine-
millimeter handgun magazine, a small amount of methamphetamine, a glass smoking
pipe, and some credit cards that were traced back to a theft from 2011.
2
2. Count 6
On November 9, 2012, a sheriff’s deputy arrested defendant and a search showed
he had two baggies of methamphetamine in his right front pants pocket. The
methamphetamine was tested and found to weigh 0.42 grams.
On July 12, 2013, the People filed an amended information charging defendant
with being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a); count 1),1
receiving stolen property (Pen. Code, § 496, subd. (a); count 2), possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3), misdemeanor
being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd.
(a); count 4), misdemeanor possession of drug paraphernalia (Health & Saf. Code,
§ 11364.1; count 5), and possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a); count 6). The People also alleged defendant had a prior strike
conviction. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
On July 17, 2013, the jury convicted defendant on all six counts. On that day,
defendant admitted the prior strike conviction.
On October 25, 2013, the court sentenced defendant to eight years as follows: the
midterm of two years on count 1, doubled for the strike prior, plus consecutive 16-month
terms (eight months, doubled for the strike prior) for counts 2, 3, and 6, plus stayed
sentences on counts 4 and 5.
This appeal followed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
3
DISCUSSION
1. Correction of Presentence Credits
Defendant argues, the People concede, and this court agrees, that the minute order
of October 25, 2013, and the abstract of judgment should be corrected to reflect the
correct number of actual custody and conduct credit days. The court erroneously
calculated defendant’s actual custody credits at 205 days and his conduct credits at 205
days, for a total of 410 days. A calculation error in custody credits is considered to be
clerical in nature, which can be corrected when it comes to the court’s attention. (People
v. Jack (1989) 213 Cal. App. 3d 913, 916-917.)
The correct numbers are 231 days of custody credits plus 230 days of section 4019
conduct credits, for a total of 461 days. Under section 4019, subdivision (f), “a term of
four days will be deemed to have been served for every two days spent in actual
custody.” The actual days are based on the following dates of custody—January 10 to
13, 2012 (four days actual), January 18 and 19, 2012 (two days actual), November 9,
2012 to January 2, 2013 (55 days actual), and May 9, 2013 to October 25, 2013 (170 days
actual).
2. Proposition 47 Resentencing
Defendant contends Proposition 47 requires this court to reduce his two drug
possession offenses (counts 3 & 6) and his receiving stolen property offense (count 2) to
misdemeanors and remand for resentencing. The People respond that Proposition 47
4
does not apply retroactively, so defendant must file a petition in the superior court for
recall of his sentence under section 1170.18.
In the November 4, 2014, general election, the voters passed Proposition 47, the
Safe Neighborhoods and Schools Act. (Pen. Code, § 1170.18.) For defendants who have
already been convicted and sentenced, as has defendant, Proposition 47 establishes a
procedure for resentencing based on a determination of dangerousness. It also reduces
crimes for some offenses to misdemeanors. As relevant here, drug possession under
Health and Safety Code section 11377 is now a misdemeanor (Health & Saf. Code,
§ 11377, subd. (a)), as is receiving stolen property if the value of the property is $950 or
less (Pen. Code, § 496, subd. (a)).
Retroactivity is the key issue. No part of the Penal Code is retroactive unless
expressly so declared. (§ 3; People v. Brown (2012) 54 Cal. 4th 314, 319.) The
Proposition 47 initiative is silent about its application to cases that are not yet final on
appeal, such as defendant’s.
In In re Estrada (1965) 63 Cal. 2d 740, the court established the principle that a
reduction in punishment yields an “inevitabl[e]” intrinsic inference of retroactive
application to all cases not yet final on appeal, absent some form of saving clause from
which a court can find an intent of prospective application. (Id. at pp. 744-745, 747-748.)
However, the Estrada principle applies only where there is a reduction of a particular
punishment for a particular crime. (People v. Brown, supra, 54 Cal.4th at pp. 324-325.)
The reduction in punishment for a broad number of crimes (see § 1170.18, subds. (a), (b))
5
in Proposition 47 has collective application to a class of different crimes and defendants,
and accordingly does not satisfy the restated Estrada-Brown criteria for applying an
inevitable intrinsic inference of an intent for retroactive application to defendants with
cases not yet final on appeal.
In People v. Yearwood (2013) 213 Cal. App. 4th 161, 173-174, the court applied
Estrada to hold that Proposition 36, enacted in November 2012, was not retroactive and
did not apply to defendants sentenced before the effective date of the law. The California
Supreme Court is currently reviewing the issue of the retroactivity of Proposition 36
based on Yearwood.2
The Yearwood court reasoned that the petition procedure available for persons
currently serving a sentence for a crime affected by Proposition 36 acts as a “savings
clause” under Estrada, from which a court can find the intent for prospective, rather than
retroactive, application. Proposition 47 contains a similarly worded petition procedure
for persons “currently serving a sentence for a [felony] conviction . . . who would have
been guilty of a misdemeanor under the act that added this section . . . had this act been in
effect at the time of the offense may petition for a recall of sentence . . .” (§ 1170.18,
subd. (a)). Because of this similarity in language and in the overall petition procedure for
those currently serving a sentence that would be imposed differently post-Proposition 36
2See, e.g., People v. Conley (2013) 215 Cal. App. 4th 1482, review granted
August 14, 2013, S211275.
6
or 47, we believe our Supreme Court will ultimately resolve the retroactivity issue
similarly for both propositions.
Given the evolving state of the law, we therefore follow the reasoning in
Yearwood and Estrada and hold that Proposition 47 is not retroactive and does not permit
defendant to receive automatic resentencing. Instead, we conclude that he must pursue
his statutory remedy to petition the trial court for recall of sentence, resentencing, and a
determination of dangerousness. (§ 1170.18; People v. Yearwood, supra, 213
Cal.App.4th at pp. 170, 177.) This is in keeping with recently published appellate
decisions, including People v. DeHoyos (2015) 238 Cal. App. 4th 363 (the amendments
enacted in Proposition 47 were not intended to apply automatically to people currently
serving sentences for listed offenses; rather, to be considered for resentencing, the
defendant would have to utilize the procedure specified in § 1170.18) and People v.
Shabazz (2015) 237 Cal. App. 4th 303 (appellate court could not order the reduction of the
defendant’s felony drug possession and receiving stolen property convictions to
misdemeanors because the voters had not expressed the intent to permit such reduction
without the filing of an application in the trial court).
DISPOSITION
The judgment is modified as follows: (1) defendant shall receive presentence
credit of 461 days, consisting of 231 days of actual presentence custody credits and 230
days of presentence conduct credits. As modified, the judgment is affirmed.
7
The superior court clerk is directed to prepare a minute order and amended
abstract of judgment to reflect the modifications and to forward a copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
8