People v. Superior Court of Riverside County , 208 Cal. Rptr. 3d 636 ( 2016 )

Filed 10/21/16 on remand from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner, E061292
v. (Super.Ct.No. CR57387)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
LEONARD JOSEPH RANGEL,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of prohibition/mandate. Edward
D. Webster, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Paul E. Zellerbach and Michael A. Hestrin, District Attorneys, Emily R. Hanks
and Donald W. Ostertag, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
1
Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public
Defender, for Real Party in Interest.
I.
INTRODUCTION
In this proceeding for extraordinary relief, the People challenge an order of the
Superior Court of Riverside County declining to place defendant and real party in interest
Leonard Joseph Rangel on community supervision (Pen. Code, § 3451, subd. (a))
following his release from prison. In our original published opinion filed on January 12,
2016 (and modified on Feb. 2 and 4, 2016), we agreed with the superior court’s decision
and denied the petition.
The California Supreme Court granted a petition for review filed by the People
and subsequently transferred the matter to this court with directions to vacate our prior
opinion and to reconsider the cause in light of People v. Morales (2016) 63 Cal. 4th 399.
We then invited the People and Rangel to file supplemental briefs addressing the impact,
if any, of People v. Morales on this case.
Our original decision in this case is hereby vacated. Having considered People v.
Morales and the supplemental briefs filed by the parties, we now grant the People’s
petition.
2
II.
PROCEDURAL HISTORY
In 1996, Rangel was convicted of being a felon in possession of a firearm (Pen.
Code,1 former § 12021, subd. (a)(1)) and of two misdemeanors. As a “third striker”
(former § 667, subds. (b) & (e)), he was sentenced to an indeterminate term of 25 years to
life in state prison.
In 2012, the electorate adopted Proposition 36, known as the Three Strikes Reform
Act of 2012. Proposition 36 amended section 667 to provide prospectively that many of
those defendants who have two prior strikes but whose current conviction is not for a
“serious and/or violent felony” are subject only to a doubled base term sentence (§ 667,
subd. (e)(1)) rather than the minimum sentence of 25 years to life term reserved for more
serious current violators. (§ 667, subd. (e)(2)(A)(ii).) At the same time, the electorate
added section 1170.126 as a retroactive mechanism by which inmates sentenced as “third
strikers” under the old law could petition to have their sentences recalled and be
resentenced under the new provisions, if they would have been subject only to the lesser
term had they been sentenced under the new law and met specified other requirements.
1 All additional undesignated statutory references are to the Penal Code.
3
Rangel filed a request under Proposition 36 on November 13, 2012, which the
superior court granted on April 9, 2014. Rangel was resentenced to the upper term of
three years for the weapons offense, doubled to six years, plus three additional one-year
prior prison term enhancements (§ 667.5, subd. (b)), for a total of nine years in state
prison. The People did not challenge the order granting Rangel’s petition.
Due to the nature of his current conviction, Rangel would normally have been
subject upon release from prison to a period of community supervision under section
3451, part of the Postrelease Community Supervision Act of 2011 (PCSA). That act
provides that except for more serious offenders, as described, inmates released from
prison on or after October 1, 2011, are subject to a new program of community
supervision for a period not to exceed three years. (§ 3451, subd. (a).) Serious offenders
remain subject to the existing system of parole. (§§ 3000.08, subd. (a), 3451, subd. (b).)
The superior court in this case offered Rangel the choice to participate in the
community supervision program. The court explained to Rangel the benefits of
postrelease supervision, including the possibility of referrals to counseling and substance
abuse assistance as well as job-finding assistance. It also pointed out that if Rangel did
not comply with the conditions of his supervision, he could be returned to custody.
Rangel declined the offer, and the superior court did not order him to participate in
community supervision.
4
The petition before this court followed.2
III.
ANALYSIS
In their petition, the People contend the superior court erred by not ordering
Rangel to serve a period of community supervision under section 3451. Rangel does not
dispute that community supervision is mandatory and that prisoners who are resentenced
under Proposition 36 are subject to such a period of community supervision. (§ 3451,
subd. (a).) Instead, Rangel contends he and other prisoners who are resentenced under
2 Rangel requested that we take judicial notice of a 2015 unpublished opinion
issued by this court on a similar issue. We deny the request.
Although, generally, unpublished opinions may not be cited by the parties or
considered by this court (Cal. Rules of Court, rule 8.1115(a)), Rangel contends we may
consider the 2015 opinion under an exception for unpublished opinions that are “relevant
to a criminal or disciplinary action because it states reasons for a decision affecting the
same defendant or respondent in another such action.” (Cal. Rules of Court,
rule 8.1115(b)(2).) According to Rangel, the exception applies here because the superior
court was the respondent in both the 2015 case and in the instant matter.
The California Supreme Court rejected a similar argument made by the People in a
criminal appeal—that the People could cite an unrelated unpublished opinion where the
People were the respondent on appeal. “The terms ‘defendant’ and ‘respondent’ in
California Rules of Court, [former] rule 977(b)(2) [current rule 8.1115(b)(2)], relate to
the previously mentioned ‘criminal or disciplinary action,’ not an appellate designation.
Thus, the reference to the ‘same defendant’ means the defendant in a criminal action,
and, particularly important here, the reference to the same ‘respondent’ means the
respondent in the ‘disciplinary action or proceeding,’ not a respondent on appeal. Thus,
this exception applies only when the unpublished opinion is related to the same criminal
or disciplinary action; it does not permit citing every unpublished criminal opinion in
every other criminal case.” (People v. Russo (2001) 25 Cal. 4th 1124, 1133-1134, fn. 1.)
5
Proposition 36, and who are subject to postrelease community supervision, are similarly
situated with prisoners who are released on parole.
Prisoners who are sentenced pursuant to section 2900.5 are entitled to apply
excess presentence custody credits to reduce or eliminate a period of parole. (§ 2900.5,
subds. (a), (c).) Therefore, as a matter of constitutional equal protection (U.S. Const.,
14th Amend., § 1; Cal. Const., art. I, § 7, subd. (a)), Rangel argues he should likewise be
permitted to apply his excess postsentence custody credits toward his period of
community supervision. Because Rangel’s excess postsentence custody credits exceed
the maximum period of three years for community supervision (§§ 3451, subd. (a), 3455,
subd. (e), 3456, subd. (a)(1)), he contends the trial court correctly declined to order him
to participate in community supervision.3 Applying the reasoning from People v.
Morales, we must disagree with Rangel.
A. People v. Morales.
In People v. Morales, supra, 63 Cal. 4th 399, the defendant successfully petitioned
the superior court to reduce his conviction for possessing heroin from a felony to a
misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act.
3 In addition, in his supplemental brief, counsel for Rangel asserts that Rangel
was released from prison almost two and a half years ago, has not reoffended, and has
successfully reintegrated himself back into society. These facts are not in the record
before this court and, consequently, we may not consider them. (Haworth v. Superior
Court (2010) 50 Cal. 4th 372, 379, fn. 2; Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal. 4th 434, 444, fn. 3.)
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(§ 1170.18.) The superior court resentenced Morales to a jail sentence of time served
and, over Morales’ objection, imposed a one-year period of parole. (§ 1170.18,
subd. (d).) Morales appealed arguing, inter alia, that his excess credits for time in
custody should be used to reduce his one-year parole period. The Court of Appeal
agreed. (People v. Morales, at pp. 403-404.)
The Supreme Court reversed. The court began by explaining how the Court of
Appeal’s conclusion conflicted with the plain language of section 1170.18,
subdivision (d), which provides in part: “A person who is resentenced pursuant to
subdivision (b) 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.” “On its face, this language
seems to require the one-year parole period subject to the court’s discretion to order
otherwise. It states that the person shall receive credit for time served and shall be
subject to parole.” (People v. Morales, supra, 63 Cal.4th at p. 405.) As the court noted,
all persons resentenced to a misdemeanor under Proposition 47 will have been serving a
felony sentence and many of them will have excess credits for time served. (People v.
Morales, at p. 405.) “In those cases, if excess credits can reduce or eliminate the period
of parole, the court’s discretion will be curtailed or eliminated. Thus, the Court of
Appeal’s conclusion would undermine the trial court’s discretion in many cases.” (Ibid.)
The defendant and the Court of Appeal relied on the long-standing rule, enshrined
in section 2900.5, subdivision (a), “that, in the ordinary situation of original sentencing,
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excess presentence credits can reduce any period of parole.” (People v. Morales, supra,
63 Cal.4th at p. 405, citing In re Sosa (1980) 102 Cal. App. 3d 1002.) Although
sections 2900.5 and 1170.18 have “comparable” language indicating a defendant shall
receive credit for time served, the Supreme Court noted section 2900.5 says “far more”
than section 1170.18. (People v. Morales, at p. 405.) “Section 2900.5, subdivision (a),
provides: ‘If the total number of days in custody exceeds the number of days of the term
of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have
been served.’ (Italics added.) To eliminate any possible ambiguity, subdivision (c) of
section 2900.5 provides: ‘For the purposes of this section, “term of imprisonment”
includes any period of imprisonment imposed as a condition of probation or otherwise
ordered by a court in imposing or suspending the imposition of any sentence, and also
includes any term of imprisonment, including any period of imprisonment prior to release
on parole and any period of imprisonment and parole, prior to discharge, whether
established or fixed by statute, by any court, or by any duly authorized administrative
agency.’ (Italics added.)” (People v. Morales, at p. 405.)
“As can be seen, section 2900.5 states two things relevant here: (1) the person is
entitled to credit for time served, and (2) the credit can reduce or eliminate the period of
parole. Section 1170.18, subdivision (d), states the first of these but not the second.
Instead, it states the person is to receive credit for time served and is subject to parole.”
(People v. Morales, supra, 63 Cal.4th at p. 406.) The Supreme Court also noted the
purpose behind the enactment of section 2900.5 was “‘to eliminate the unequal treatment
8
suffered by indigent defendants who, because of their inability to post bail, served a
longer overall confinement than their wealthier counterparts.’” (People v. Morales, at
p. 405, quoting In re Rojas (1979) 23 Cal. 3d 152, 156.)
The Supreme Court next rejected the Court of Appeal’s conclusion that the voters
are presumed to have had existing law in mind when they enacted Proposition 47 and,
therefore, “that the voters intended to make the law in this regard identical to section
2900.5.” (People v. Morales, supra, 63 Cal.4th at p. 406.) “[G]iven the assumption, the
conclusion is far from clear. If we assume the voters had in mind existing law, we may
also assume they had in mind that the statute concerning presentence credit in ordinary
cases (i.e., § 2900.5) states both that the person is entitled to credit for time served and
that the credit can reduce or eliminate any period of parole. We may also assume the
voters knew that the purpose behind that statute was to equalize the treatment of those
who could and those who could not post bail. Because the proposition the voters were
considering expressed the first part but not the second part of section 2900.5’s rule, and
the purpose behind that rule is irrelevant to resentencing under Proposition 47, no reason
appears to assume the voters believed the proposition would include what it did not state,
namely that credit for time served could reduce the period of parole.” (Ibid., second and
third italics added.)
In addition, the Supreme Court noted the voters’ intent, as reflected in the ballot
materials for Proposition 47, demonstrated the voters did not intend that persons
resentenced under section 1170.18 could use excess custody credits to reduce or
9
eliminate the one-year parole period. “[I]f we can assume voters had in mind existing
law, and further assume the seemingly mandatory statutory language [of section 1170.18,
subdivision (d)] is ambiguous, we can also make the more realistic assumption that the
voters, or at least some of them, read and were guided by the ballot materials concerning
the proposition.” (People v. Morales, supra, 63 Cal.4th at p. 406.) “The arguments
contained in the official ballot pamphlet for Proposition 47 say nothing relevant to this
issue, but the analysis does. The Legislative Analyst’s analysis of Proposition 47 is four
pages long. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by
Legis. Analyst, pp. 34-37.) Included is a discrete single paragraph captioned, in bold
print, ‘Resentencing of Previously Convicted Offenders.’ (Id. at p. 36.) This paragraph
explains in simple language that certain offenders currently serving felony sentences for
the reduced crimes may have their sentences reduced to misdemeanor sentences. It says
nothing about credit for time served. But the last sentence of this paragraph states the
following: ‘Offenders who are resentenced would be required to be on state parole for
one year, unless the judge chooses to remove that requirement.’ (Ibid.)” (People v.
Morales, at pp. 406-407.)
As the court noted: “This last sentence is easy to understand and entirely
unambiguous. It promised voters that offenders would be on parole for one year unless
the judge deemed it not necessary. Any reasonable voter would have understood the
sentence to mean exactly what it said. The initiative’s drafters may have included the
parole provision to increase the initiative’s chances of being enacted. Some voters who
10
were concerned about simply releasing persons who had committed what had been
felonies might have been reassured by this promise, a reassurance that might have
persuaded them to vote for the proposition. We have no reason to believe any voter
intended to curtail or eliminate the court’s discretion to impose parole whenever excess
credits exists, and much reason to believe the opposite.” (People v. Morales, supra,
63 Cal.4th at p. 407.)
Pertinent for our purposes, the Supreme Court also addressed an argument made
by amici curiae—that equal protection of the laws requires persons resentenced under
Proposition 47 to be treated the same as persons originally sentenced under
section 2900.5. (People v. Morales, supra, 63 Cal.4th at p. 408.) “The concept of equal
protection under the laws means that persons similarly situated regarding the legitimate
purpose of the law should receive like treatment.” (Ibid., citing Cooley v. Superior Court
(2002) 29 Cal. 4th 228, 253.)
The Supreme Court found the two groups were not similarly situated and,
therefore, could be treated differently for purposes of using excess credits to reduce or
eliminate a period of parole. “The purpose behind section 2900.5—to equalize treatment
of those who can and those who cannot post bail—is irrelevant here. Accordingly,
persons resentenced under Proposition 47 are not situated similarly to those sentenced
under section 2900.5. Persons resentenced under Proposition 47 were serving a proper
sentence for a crime society had deemed a felony (or a wobbler) when they committed it.
Proposition 47 did not have to change that sentence at all. Sentencing changes
11
ameliorating punishment need not be given retroactive effect. ‘The Legislature properly
may specify that such statutes are prospective only, to assure that penal laws will
maintain their desired deterrent effect by carrying out the original prescribed punishment
as written.”’ [Citations.] ‘The voters have the same prerogative.’ [Citation.] [¶] Here,
the voters have given Proposition 47 some retroactive effect. Some persons originally
sentenced as felons can receive the benefit of a favorable resentencing. But the voters
imposed a price for that benefit—parole for one year unless the court orders otherwise.
Equal protection of the laws does not mean a person can claim the benefits of an
ameliorative change in the law but refuse to accept the price. The voters could rationally
conclude that those who receive the benefit of a new misdemeanor sentence should at
least be placed on parole when released on the reduced sentence. [Citation.]” (People v.
Morales, supra, 63 Cal.4th at pp. 408-409.)
B. Application of People v. Morales to Rangel’s Case.
We conclude People v. Morales mandates the conclusion that persons who are
subject to community supervision pursuant to section 3450 et sequitur after serving their
sentence are not entitled to use excess postsentence custody credits to reduce or eliminate
the period of community supervision.
The plain language of section 3451 does not support Rangel’s assertion that he is
entitled to apply excess custody credits to a period of community supervision. Whereas
section 2900.5 provides expressly that prisoners released on parole are entitled to have
excess presentence custody credits applied toward a period of parole (§ 2900.5,
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subds. (a), (c); People v. Morales, supra, 63 Cal.4th at pp. 405-406), section 3451 is
completely silent on the question of excess custody credits. In relevant part, section 3451
provides: “Notwithstanding any other law and except for persons serving a prison term
for any crime described in subdivision (b), [i.e., more serious offenders who are subject
to normal parole (§ 3000.08, subd. (a)),] all persons released from prison on and after
October 1, 2011, or, whose sentence has been deemed served pursuant to Section 2900.5
after serving a prison term for a felony shall, upon release from prison and for a period
not exceeding three years immediately following release, be subject to community
supervision provided by the probation department of the county to which the person is
being released . . . .” (§ 3451, subd. (a), italics added.)
On its face, section 3451 unambiguously provides that persons such as Rangel are
subject to a mandatory period of community supervision, and nothing in that statute
provides for application of excess postsentence custody credits toward that period. And
as a pure matter of statutory interpretation, use of the language “[n]otwithstanding any
other law” would appear to foreclose Rangel’s argument that section 3451 should be
applied the same way as section 2900.5. (See, e.g., In re Greg F. (2012) 55 Cal. 4th 393,
406 [“When the Legislature intends for a statute to prevail over all contrary law, it
typically signals this intent by using phrases like ‘notwithstanding any other law’ or
‘notwithstanding other provisions of law.’”].)
Even if we were to conclude the language of section 3451 is ambiguous on the
question of credit for time served, the available legislative history does not support
13
Rangel’s claim either. The legislative history of the Criminal Justice Realignment Act of
2011, which enacted the PCSA (Stats. 2011, ch. 15, § 479), and the legislative history of
subsequent amendments to section 3451 simply do not address the question of excess
custody credits and, therefore, neither support nor refute Rangel’s claim. To the extent
the intent of the voters who adopted Proposition 36 is relevant to our analysis, it is
ambiguous at best on the questions posed here. In contrast to the ballot pamphlet for
Proposition 47, that was silent on the question of custody credits but expressly promised
a mandatory period of parole for resentenced offenders (People v. Morales, supra, 63
Cal.4th at pp. 406-407), the arguments in favor of and the official legislative analyst’s
analysis of Proposition 36 were completely silent on the question of credit for time served
and on the question of postrelease supervision. Indeed, as Rangel points out in his
supplemental brief, the failure of the drafters of Proposition 36 to expressly condition
resentencing on a period of postrelease supervision was one of the main points used in
the arguments against the adoption of Proposition 36. (Voter Information Guide, Gen.
Elec. (Nov. 6, 2012) rebuttal to argument in favor of Prop. 36, p. 52 [“Some of these
dangerous criminals will be released WITHOUT STATE PAROLE OR ANY LAW
ENFORCEMENT SUPERVISION”]; id., argument against Prop. 36, p. 53 [“Worse yet,
some of these criminals will be released from prison WITHOUT PAROLE OR ANY
SUPERVISION!”].) Although the opponents of the initiative told the voters that at least
some prisoners resentenced under section 1170.126 would pay no “price” for their
resentencing (see People v. Morales, at 409), we must assume the voters who adopted
14
Proposition 36 were aware of the existing PCSA, which mandates community
supervision and is completely silent on the question of custody credits. (People v.
Morales, at p. 406.)
Addressing Rangel’s equal protection claim, we conclude persons subject to
community supervision are not similarly situated with parolees and, therefore, Rangel is
not entitled to apply excess custody credits toward his period of community supervision.
As the Supreme Court stated in People v. Morales, “[t]he concept of equal treatment
under the laws means that persons similarly situated regarding the legitimate purpose of
the law should receive like treatment.” (People v. Morales, supra, 63 Cal.4th at p. 408,
citing Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.)
In a number of respects, community supervision is similar to parole. Community
supervision and parole serve precisely the same purpose—to facilitate the successful
reintegration into society of persons released from prison, while protecting the public
through active supervision of the former inmate. (Pen. Code, §§ 3000, subd. (a)(1)
[parole], 3450, subd. (b)(5) [community supervision].) Indeed, the express purpose of the
PCSA was simply to shift the responsibility for supervising certain released inmates from
the state to local jurisdictions. (Pen. Code, §§ 3450, subd. (b)(5), 3451, subds. (a), (c)(1),
3457.) Both programs of supervision are limited to three years for most offenders. (Pen.
Code, §§ 3000, subd. (b)(2)(A) [parole], 3451, subd. (a) [community supervision], 3455,
subd. (e) [same], 3456, subd. (a)(1) [same].) Parolees and persons on community
supervision are subject to various conditions of their release and may have their release
15
revoked for failure to comply with those conditions. (See, e.g., Pen. Code, § 3004,
subd. (a) [parole] and Cal. Code Regs., tit. 15, § 2512 [same]; Pen. Code, §§ 3453
[community supervision] and 3465 [same].) Although persons subject to community
supervision may not be returned to prison for violating the terms of postrelease
supervision (Pen. Code, § 3458), former inmates under both parole and community
supervision may be returned to custody for violating the conditions of release. (Pen.
Code, §§ 3057, subd. (a) [parole], 3455, subd. (a)(1), (a)(2) [community supervision].)
Finally, several statutes apply equally to both sets of offenders and treat them as
equivalent. (E.g., Pen. Code, § 3015, subd. (d) [authorizing participation in a “reentry
court” program by both groups].)
Despite the similarities between community supervision and parole, for purposes
of applying excess custody credits to postrelease supervision, persons subject to the
former are not situated similarly to persons subject to the latter. Perhaps the central
theme of People v. Morales is that the ability to apply excess presentence custody credits
to a period of parole under section 2900.5 is tied inextricably to the core purpose of that
statute—to eliminate unequal treatment suffered by indigent defendants who cannot
afford to post bail pending trial and, consequently, serve a longer period of confinement
than more wealthy defendants who can afford bail. (People v. Morales, supra, 63 Cal.4th
at p. 405.) When it distinguished between persons subject to original sentencing under
section 2900.5 and persons resentenced under Proposition 47, the Supreme Court
repeatedly concluded the purpose behind section 2900.5 was inapplicable in the context
16
of resentencing under Proposition 47. (People v. Morales, at pp. 406-408.) Indeed,
absence of the concern behind section 2900.5 in the context of Proposition 47,
resentencing was the main reason the Supreme Court concluded defendants resentenced
under Proposition 47 were not similarly situated with persons sentenced under
section 2900.5. (People v. Morales, at p. 408.)
We must reach the same conclusion here. Like persons who are resentenced under
Proposition 47, prisoners who are resentenced under Proposition 36 were serving a
“proper sentence.” (People v. Morales, supra, 63 Cal.4th at p. 408.) At the time they
were originally sentenced under the former three strikes law, those prisoners who could
not afford to post bail would have already received credit toward their sentence for the
time they spent in presentence custody. (People v. Thomas (1999) 21 Cal. 4th 1122,
1125-1130 [holding three strikes defendants are entitled to presentence custody credits
under §§ 2900.5 and 4019].) In other words, as in the context of Proposition 47, the
legislative purpose behind section 2900.5—to eliminate unequal treatment between
indigent defendants who cannot afford bail and wealthy defendants who can—is
irrelevant at the time of resentencing under Proposition 36. (People v. Morales, at
p. 408.)
Therefore, although persons originally sentenced under section 2900.5 who are
released on parole and persons subject to postrelease community supervision under
section 3451 should be treated similarly for some purposes (see People v. Jones (2014)
231 Cal. App. 4th 1257, 1267, fn. 8 [validity of conditions of supervision]), for purposes
17
of applying excess custody credits to a period of postrelease supervision, we conclude
prisoners who are resentenced under Proposition 36 are not situated similarly with
persons originally sentenced under section 2900.5 and, consequently, they may be treated
differently. (People v. Morales, supra, 63 Cal.4th at pp. 408-409.)
Because we conclude Rangel was not entitled as a matter of equal protection to
apply excess postsentence custody credits to reduce or eliminate his mandatory period of
community supervision, we further conclude the superior court erred by not ordering him
to serve such a period.
IV.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue, directing the
Superior Court of Riverside County to enter an order placing Rangel on community
supervision pursuant to section 3450 et sequitur.
Petitioner is hereby directed to prepare and have the peremptory writ of mandate
issued, copies served, and the original filed with the clerk of this court, together with
proof of service on all parties.
CERTIFIED FOR PUBLICATION
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
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