People v. Lateano CA2/6 ( 2016 )

Filed 2/25/16 P. v. Lateano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B265542
(Super. Ct. No. 2012036860)
Plaintiff and Respondent, (Ventura County)
v.
DOMINIC LATEANO,
Defendant and Appellant.
Dominic Lateano appeals the trial court's order resentencing him under
Proposition 47, the Safe Neighborhoods and Schools Act ("the Act"), and placing him on
supervised parole. (Pen. Code, § 1170.18, subd. (d).)1 He contends he is not subject to
parole under Proposition 47 because he was not "currently serving a sentence" within the
meaning of section 1170.18, subdivision (a) while he was on postrelease community
supervision (PRCS). In the alternative, he asks for credit against the parole period for
time he served on PRCS. We affirm.
BACKGROUND
In November 2012, Lateano was convicted upon plea of guilty to petty theft
with three or more priors. (§ 666, subd. (a).) He completed his prison term in November
2013 and was placed on PRCS. (§ 3451, subd. (a).) He repeatedly violated the
conditions of his PRCS. From August 2014 to March 2015, he was allowed to participate
1
All statutory references are to the Penal Code.
in re-entry drug court, but the trial court terminated his participation and returned him to
PRCS when he absconded.
Lateano filed a petition for resentencing under Proposition 47 in November
2014. He did not appear for the initial hearing on the Proposition 47 petition or for a
continued hearing. Lateano did not submit to drug testing or report to the probation
department as required by the terms of his PRCS.
On May 21, 2015, the trial court found Lateano violated the terms of PRCS.
It sentenced him to 53 days time served. The court also entertained and granted
Lateano's motion to reduce his felony conviction to a misdemeanor pursuant to
Proposition 47. The court placed Lateano on supervised parole pursuant to section
1170.18, subdivision (d) (Proposition 47 parole). The trial court denied Lateano's request
to deduct excess custody credits from the parole period.
DISCUSSION
Proposition 47 Parole
Lateano contends he is not subject to Proposition 47 parole because he
"completed" his sentence in 2013 when he was released from prison and placed on
PRCS. We disagree.
In 2014, the voters enacted Proposition 47, which reclassifies certain crimes
from felonies to misdemeanors. A person who is "currently serving a sentence" for a
felony offense that would be a misdemeanor under the Act may petition for a recall of
sentence and resentencing under the Act. (§ 1170.18, subd. (a).) Upon resentencing, he
or she "shall be given credit for time served and shall be subject to parole for one year
following completion of his or her sentence, unless the court . . . releases the person from
parole." (Id., subd. (d).) On the other hand, a person "who has completed his or her
sentence" for a felony offense that would have been a misdemeanor under the Act may
petition to have the offense reclassified as a misdemeanor and is not subject to
Proposition 47 parole. (§ 1170.18, subd. (f).)
Lateano did not complete his sentence when he was released from prison.
His "sentence" included his unfinished PRCS term. (§ 3000, subd. (a)(1).) Section 3000,
2
subdivision (a)(1) provides: "A sentence resulting in imprisonment in the state prison
pursuant to Section 1168 or 1170 shall include a period of parole supervision or [PRCS],
unless waived, or as otherwise provided in this article." A felon on PRCS is still serving
his or her felony sentence. (People v. Nuckles (2013) 56 Cal.4th 601, 609.)
Lateano argues that "sentence" as used in the Act cannot include a period of
PRCS or parole because section 1170.18, subdivision (d) provides for "parole for one
year following completion of his or her sentence." But subdivision (d) does not refer to
the felony sentence. It refers to the new misdemeanor sentence. Felony sentences
include a period of parole or PRCS. (§ 3000, subd. (a)(1).) Lateano was "currently
serving" his felony sentence when he petitioned for relief under Proposition 47 and he is
subject to Proposition 47 parole.
Lateano argues that even if he is subject to Proposition 47 parole, his period
of parole should be reduced for the time he was on PRCS. If he were correct, he would
not be subject to any further supervision. Lateano cites no authority in support of his
contention and we reject it.2
In the opinion of sentencing experts, "the intent of the initiative is to
authorize the one-year period of parole supervision in addition to any resentence imposed
by the court, and without consideration of any credit that the petitioner may have earned."
(Couzens & Bigelow, Prop. 47: The Safe Neighborhoods and Schools Act (Aug. 2015)
p. 64.)
Section 15 of the Act provides that its language is to be "broadly construed
to accomplish its purposes." One of those purposes is to provide adequate supervision to
ensure successful reintegration. The Voter Information Guide assured voters that
"[o]ffenders who are resentenced would be required to be on state parole for one year,
unless the judge chooses to remove that requirement." (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014), Prop. 47, Analysis by Legislative Analyst, p. 36.) Lateano is not
2
Lateano argued in the trial court that he is entitled to excess custody credits (In re Sosa
(1980) 102 Cal.App.3d 1002, 1005-1006), but he does not raise that issue in his appellate
brief.
3
ready to successfully reintegrate without supervision. His performance on PRCS was
"abysmal," as the probation department described it. He placed himself under a new
sentencing scheme when he petitioned for relief under Proposition 47. He is subject to its
one-year parole period regardless of prior time on PRCS.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
4
Ryan Wright, Judge
Superior Court County of Ventura
______________________________
Richard Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
5