People v. Arnold CA2/6 ( 2016 )

Filed 6/6/16 P. v. Arnold 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B268183
(Super. Ct. No. 2013034174)
Plaintiff and Respondent, (Ventura County)
v.
JON CARL ARNOLD,
Defendant and Appellant.
Jon Carl Arnold appeals an order denying him credit against his
supervised one-year misdemeanor parole, imposed pursuant to Penal Code section
1170.18, subdivisions (d).1 We affirm.
FACTUAL AND PROCEDURAL HISTORY
On May 16, 2014, Arnold pleaded guilty to possession of a controlled
substance, heroin. (Health & Saf. Code, § 11350, subd. (a).) He also admitted
suffering a 1982 serious felony strike conviction for burglary, and serving five prior
prison terms. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) The
trial court dismissed the felony strike conviction pursuant to section 1385,
subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. It
then sentenced Arnold to four years in prison. The court also imposed a $50
1
All further statutory references are to the Penal Code unless stated otherwise.
laboratory analysis fee, a $150 drug program fee, a $300 restitution fine, a $300
parole revocation restitution fine (suspended), a $40 court security assessment, and a
$30 criminal conviction assessment. (Health & Saf. Code, §§ 11372.5, subd. (a),
11372.7, subd. (a); §§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code,
§ 70373.) The court awarded Arnold 153 days of presentence custody credit.
On November 5, 2014, Arnold filed a petition to have his sentence
recalled and to have his felony conviction reclassified as a misdemeanor, pursuant to
section 1170.18. On December 8, 2014, the trial court redesignated Arnold's
conviction as a misdemeanor and ordered him to serve 365 days in county jail with
credit for time served. The court also placed Arnold on one-year supervised
misdemeanor parole as authorized by section 1170.18, subdivision (d).
On May 1, 2015, the trial court found that Arnold had violated the
terms of his parole. The court then ordered him to serve 130 days in county jail. On
September 13, 2015, Arnold was arrested pursuant to a warrant. At a hearing held
the following day, he contended that he was entitled to have any excess custody
credits applied against his term of parole as held by In re Sosa (1980) 102
Cal.App.3d 1002, 1005-1006. The court denied Arnold's motion.
Arnold appeals and contends that he is entitled to credit against his one-
year misdemeanor parole term for time served in custody pursuant to section 2900.5,
subdivision (c) and In re Sosa, supra, 102 Cal.App.3d 1002, 1005-1006.
DISCUSSION
On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act, which became effective the following day. (People
v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 added section 1170.18
to the Penal Code. Subdivision (a) of section 1170.18 permits a person who is
"currently serving a sentence for a conviction . . . of a felony or felonies who would
have been guilty of a misdemeanor under [Proposition 47] . . . [to] petition for a
recall of sentence . . . [and] to request resentencing." If the person satisfies the
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criteria in subdivision (a), subdivision (b) provides that "the petitioner's felony
sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless
the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety." Subdivision (d) provides, "A person
who is resentenced . . . 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, in
its discretion, as part of its resentencing order, releases the person from parole."
The trial court did not err by denying application of Arnold's excess
credits against his one-year misdemeanor parole period. In re Sosa, supra, 102
Cal.App.3d 1002, 1005-1006, generally holds that presentence custody credits in
excess of a prisoner's term of imprisonment reduce his time on parole. Section
1170.18, subdivision (d) expressly states, however, that supervised parole shall be
imposed unless the court in its discretion determines otherwise. Thus, Arnold is
entitled to credit against his new misdemeanor sentence, but not his one-year period
of misdemeanor parole. (People v. Espinoza (2014) 226 Cal.App.4th 635, 638
[PRCS is not a "term of imprisonment" within the meaning of section 2900.5,
subdivision (c) and Sosa]; Couzens et al., Sentencing California Crimes (The Rutter
Group 2015) § 25:6, p. 25-62 [Proposition 47 provides that the trial court on
resentencing may order parole supervision "in addition to any resentence imposed by
the court, and without consideration of any [custody] credit that the petitioner may
have earned"].)
In prior decisions, we have considered and rejected a similar
contention. (People v. McCoy (2015) 239 Cal.App.4th 431, review granted Oct. 14,
2015, No. S229296; People v. Hickman (2015) 237 Cal.App.4th 984, review granted
Aug. 26, 2015, No. S227964.) We see no reason to depart from the reasoning and
conclusions set forth in these opinions, although we recognize there is a contrary
view. (People v. Armogeda (2015) 240 Cal.App.4th 1039, review granted Dec. 9,
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2015, No. S230374; People v. Morales (2015) 238 Cal.App.4th 42, review granted
Aug. 26, 2015, No. S228030.)
The resentencing order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Jeffrey G. Bennett, 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, Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
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