People v. Lamoureux ( 2020 )

Filed 11/5/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077361
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1101646)
PATTY ANN LAMOUREUX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside, John D.
Molloy, Judge. Affirmed as modified.
Michelle May Peterson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina, Lynne G. McGinnis, and Annie Featherman Fraser, Deputy
Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Patty Ann Lamoureux appeals a judgment of conviction
entered after the trial court vacated her felony murder conviction and
resentenced her under Penal Code section 1170.95, the resentencing
provision of Senate Bill No. 1437 (2017–2018 Reg. Sess.).1 Lamoureux was
released from custody for time served and, although she had excess custody
credits, the trial court exercised its discretion to place her on parole
supervision for the statutory maximum of three years. (§ 1170.95, subd. (g).)
On appeal, Lamoureux contends the trial court erred in declining to
apply her excess custody credits to offset, i.e., reduce or eliminate, her three-
year parole supervision period. Additionally, she claims the court failed to
articulate a rational method of computation when it imposed a $560
restitution fine (§ 1202.4, subd. (b)), erred by not applying her excess custody
credits to offset her restitution fine (former § 2900.5, subd. (a); Stats. 2011,
ch. 15, § 466, eff. Apr. 4, 2011), and miscalculated her presentence custody
credits.
In People v. Wilson (2020) 53 Cal.App.5th 42 (Wilson), our colleagues in
the First District, Division Three, concluded that a court is not required to
apply excess custody credits to offset the parole supervision period of a person
who is resentenced under Senate Bill No. 1437. As discussed more fully
below, we agree with the Wilson decision. Therefore, we conclude the trial
court in the present case did not err in declining to offset Lamoureux’s parole
supervision period by her excess custody credits.
As to Lamoureux’s remaining arguments, we conclude Lamoureux
forfeited her challenge to the restitution fine by failing to object in the trial
court and the issue of her entitlement to additional presentence custody
credits is moot. However, we conclude Lamoureux’s excess custody credits
must be applied to offset the restitution fine in its entirety.
1 All statutory references are to the Penal Code unless otherwise noted.
2
Therefore, we modify the judgment to reflect that Lamoureux’s $560
restitution fine is deemed satisfied in full by application of her excess custody
credits. In all other respects, the judgment is affirmed.
II
BACKGROUND
A
In 2013, a jury convicted Lamoureux of conspiracy to commit robbery
(§ 182) and felony murder (§ 187, subd. (a)). It found true special
circumstance allegations that: (1) the murder was perpetrated during the
commission of a robbery and a burglary (§ 190.2, subd. (a)(17)); and
(2) Lamoureux, though not the actual killer, had an intent to kill or acted
with reckless indifference to human life and was a major participant in the
predicate felony (id., subds. (c) & (d)). On April 19, 2013, the court sentenced
Lamoureux to prison for life without the possibility of parole.
This court affirmed Lamoureux’s murder and conspiracy convictions,
but concluded the evidence was insufficient to support the jury’s finding that
she had an intent to kill or acted with reckless indifference to human life.
(People v. Miller (Sept. 15, 2015, D067451) [nonpub. opn.], review den. Dec. 9,
2015.) Therefore, the court concluded Lamoureux was not eligible for a
prison sentence of life without the possibility of parole. (Ibid.) The court
affirmed the judgment, in part, reversed the judgment, in part, and
remanded the matter for resentencing. (Ibid.) On remand, the trial court
resentenced Lamoureux to a prison term of 25 years to life.
B
On January 11, 2019, after the enactment of Senate Bill No. 1437,
Lamoureux filed a petition to vacate her felony murder conviction and to
obtain resentencing. The People opposed the petition, asserting Senate Bill
3
No. 1437 is unconstitutional because it amends Proposition 7 (Prop. 7, as
approved by voters, Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Prop. 115,
as approved by voters, Primary Elec. (June 5, 1990)), violates the separation
of powers doctrine, and contravenes Marsy's Law (Prop. 9, as approved by
voters, Gen. Elec. (Nov. 4, 2008)). The trial court summarily dismissed the
petition after finding that section 1170.95—Senate Bill No. 1437’s
resentencing provision—amends Proposition 7.
On appeal, a divided panel of this court considered and rejected the
People’s constitutional challenges to Senate Bill No. 1437. (People v.
Lamoureux (2019) 42 Cal.App.5th 241; see People v. Superior Court (Gooden)
(2019) 42 Cal.App.5th 270 [companion case concluding Senate Bill No. 1437
is constitutional].) Because we concluded there is no constitutional infirmity
with Senate Bill No. 1437, we reversed the order summarily dismissing
Lamoureux’s resentencing petition.2 (Lamoureux, at p. 246.)
Lamoureux was released on bail on January 27, 2020, and the court
granted her petition on February 26, 2020. The court vacated the felony
murder conviction and resentenced Lamoureux to the upper term of six years
for her conspiracy conviction. It found Lamoureux was entitled to 3,590
credits for time served, consisting of 648 presentence actual time credits,
2 Following our decision, numerous other Courts of Appeal concluded
Senate Bill No. 1437 is constitutional. (People v. Lippert (2020) 53
Cal.App.5th 304; People v. Nash (2020) 52 Cal.App.5th 1041; People v.
Superior Court of Butte County (2020) 51 Cal.App.5th 896; People v. Lopez
(2020) 51 Cal.App.5th 589; People v. Alaybue (2020) 51 Cal.App.5th 207;
People v. Johns (2020) 50 Cal.App.5th 46; People v. Prado (2020) 49
Cal.App.5th 480; People v. Smith (2020) 49 Cal.App.5th 85, review granted
July 22, 2020, S262835; People v. Bucio (2020) 48 Cal.App.5th 300; People v.
Solis (2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th 740;
but see Lippert, at p. 314 (dis. opn. of Ramirez, J.); Nash, at p. 1084 (con. &
dis. opn. of Poochigian, J.).)
4
2,474 postsentence actual time credits, and 468 postsentence conduct credits.
It determined the custody credits exceeded the new custodial sentence and
therefore found the new custodial sentence satisfied. However, it placed
Lamoureux on parole supervision for three years under section 1170.95,
subdivision (g). Over Lamoureux’s objection, the court declined to apply her
excess custody credits to offset the parole supervision period.
III
DISCUSSION
A
Parole Supervision
1
The Legislature enacted Senate Bill No. 1437, effective January 1,
2019, for the expressed purpose of “amend[ing] the felony murder rule and
the natural and probable consequences doctrine, as it relates to murder, to
ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats.
2018, ch. 1015, § 1, subd. (f).) To effectuate this goal, Senate Bill No. 1437
amended sections 188 and 189, the statutory provisions pertaining to malice
and the degrees of murder, respectively. (Id., §§ 2–3.)
Senate Bill No. 1437 also added section 1170.95, which permits persons
with murder convictions to petition their sentencing courts to vacate their
murder convictions and to be resentenced on any remaining counts.
(§ 1170.95, subds. (a), (e).) A person is entitled to vacatur of his or her
murder conviction and resentencing if the following conditions are met: (1) a
charging document was filed against the person that allowed the prosecution
to proceed under a theory of felony murder or murder under the natural and
5
probable consequences doctrine; (2) the person was convicted of first or
second degree murder following a trial or an accepted plea; and (3) the person
could “not be convicted of first or second degree murder because of changes to
[s]ection[s] 188 or 189” made by Senate Bill No. 1437. (Id., subd. (a).)
At issue here is a portion of Senate Bill No. 1437’s resentencing
provision concerning parole supervision for resentenced defendants—
section 1170.95, subdivision (g). Section 1170.95, subdivision (g) states: “A
person who is resentenced pursuant to [section 1170.95] shall be given credit
for time served. The judge may order the petitioner to be subject to parole
supervision for up to three years following the completion of the sentence.”
Lamoureux contends a person who is resentenced under Senate Bill
No. 1437 is entitled, pursuant to section 1170.95, subdivision (g), to have his
or her excess custody credits applied against any period of parole supervision
the court imposes. She asserts she had 1,400 excess custody credits—enough
to fully offset her three-year parole supervision period (which she calculates
as 1,095 days). Because the excess custody credits exceeded the parole
supervision period, Lamoureux claims the trial court erred in placing her on
parole supervision.3
The proper construction of section 1170.95, subdivision (g) presents an
issue of statutory interpretation subject to our de novo review. (Christensen
v. Lightbourne (2019) 7 Cal.5th 761, 771.) “[W]e begin by looking to the
statutory language. If the language is clear in context, our work is at an end.
3 The parties dispute whether Lamoureux was entitled to additional
custody credits. (See post Part. III.C.) However, Lamoureux assumes for
purposes of discussion the trial court’s determination of her custody credits
was correct and calculates her excess custody credits as follows: custody
credits as determined by the trial court (3,590) minus the new six-year
custodial sentence imposed at resentencing (2,190 days) equals excess
custody credits (1,400).
6
If it is not clear, we may consider other aids, including the statute's
legislative history.” (National Lawyers Guild, San Francisco Bay Area
Chapter v. City of Hayward (2020) 9 Cal.5th 488, 498.)
2
In People v. Morales (2016) 63 Cal.4th 399 (Morales), the Supreme
Court considered whether excess custody credits automatically apply to
reduce or eliminate a person’s parole period when the person is resentenced
under Proposition 47 (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4,
2014)). In answering this question, the Supreme Court interpreted a
statutory provision that closely resembles section 1170.95, subdivision (g).
Therefore, we begin our analysis with a discussion of the Morales decision.
In Morales, a defendant pleaded guilty to a felony offense and was
sentenced to 16 months in prison. (Morales, supra, 63 Cal.4th at p. 403.)
Eight months into the sentence, voters enacted Proposition 47, which reduced
many non-violent crimes from felonies to misdemeanors and allowed persons
serving felony sentences for reclassified offenses to petition to recall their
sentences and to be resentenced for misdemeanor offenses. (Ibid.) The
defendant filed such a petition, which was granted, and the trial court
imposed a jail sentence of time served. (Ibid.) The court placed the
defendant on parole for one year, even though he had excess custody credits.
(Ibid.) On appeal, the defendant argued he was entitled to have his parole
period offset by his excess custody credits under a provision contained within
Proposition 47—section 1170.18, subdivision (d) (hereafter, the Proposition
47 statute). The Proposition 47 statute states: “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.”
7
Applying well-established principles of statutory interpretation, the
Supreme Court rejected the defendant’s argument and concluded a court is
not required to apply a person’s excess custody credits to reduce or eliminate
a parole period imposed under the Proposition 47 statute. (Morales, supra,
63 Cal.4th at p. 403.) The court reasoned the Proposition 47 statute, despite
granting “ ‘credit for time served’ ” to persons who are resentenced under
Proposition 47, “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.” (Id. at p. 405.) As the
Morales court explained, the Proposition 47 statute establishes a “seemingly
mandatory parole requirement (subject to the court's discretion) ….” (Ibid.)
Next, the Morales court emphasized what the Proposition 47 statute
does “not state, namely that credit for time served could reduce the period of
parole.” (Morales, supra, 63 Cal.4th at p. 406.) The court juxtaposed the
Proposition 47 statute with section 2900.5, “the statute concerning
presentence credit in ordinary cases ….” (Ibid.) As the court explained,
presentence credits can ordinarily be credited towards a sentence during a
person’s initial sentencing because section 2900.5 expressly provides that
“(1) the person is entitled to credit for time served, and (2) the credit can
8
reduce or eliminate the period of parole.”4 (Morales, supra, 63 Cal.4th at
pp. 405–406.) The Proposition 47 statute “states the first of these but not the
second.” (Ibid.) Because the Proposition 47 statute says nothing about
excess credits reducing or eliminating a person’s parole period, the court had
“no reason … to assume the voters believed ... credit for time served could
reduce the period of parole” when they enacted Proposition 47. (Id. at p. 406.)
Further, the Morales court reasoned that a custody credit offset would
in many cases “undermine” the discretion of a court to impose a parole period
for a person who is resentenced under Proposition 47. (Morales, supra, 63
Cal.4th at p. 405.) The court noted that a person seeking a recall of his or her
sentence and resentencing under Proposition 47 “will have been serving a
felony sentence and, therefore, will often have substantial excess credit for
time served. In those cases, if excess credits can reduce or eliminate the
period of parole, the court’s discretion will be curtailed or eliminated.” (Ibid.)
For all these reasons, the Morales court “conclude[d] that credit for
time served does not reduce the parole period” under the Proposition 47
statute. (Morales, supra, 63 Cal.4th at p. 403.) The court held, instead, that
the “electorate was informed, and it intended, that a person who benefitted
from [Proposition 47] by receiving a reduced sentence would be placed on
4 Section 2900.5 states, in relevant part as follows: “(a) … when the
defendant has been in custody … all days of custody of the defendant … shall
be credited upon his or her term of imprisonment …. 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…. [¶] …. (c) 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.)
9
parole for one year after completion of the reduced sentence, subject to the
court’s discretion to release the person from that parole.” (Ibid.)
3
More recently, in Wilson, the Court of Appeal for the First District,
Division Three considered the issue presented here—whether a court must
apply the excess custody credits of a person who is resentenced under Senate
Bill No. 1437 to offset the person’s parole supervision period pursuant to
section 1170.95, subdivision (g). Based in part on the Morales decision, the
Wilson court determined the answer to this question is “no.”5
As the Wilson court explained, section 1170.95, subdivision (g)—like
the Proposition 47 statute—“states that (1) the [resentenced] person is
entitled to credit for time served and (2) the court may order a parole period.”
(Wilson, supra, 53 Cal.App.5th at p. 50.) However, it “does not state—as
section 2900.5 states—that the credit may be used to reduce or eliminate any
parole period the court may impose.” (Id. at p. 50.) Just as the Morales court
concluded “the words ‘credit for time served’ in the Proposition 47 statute do
not mandate the use of excess credit to reduce or eliminate the parole period,”
the Wilson court concluded the words “credit for time served” contained in
section 1170.95, subdivision (g) do not, standing alone, mandate an excess
credit offset against a person’s parole supervision period. (Id. at p. 50.)
Further, the Wilson court recognized that a mandatory excess custody
credit offset “would result in parole being eliminated or reduced in many
cases governed by section 1170.95 as defendants seeking relief under that
5 The Court of Appeal issued the Wilson decision after briefing in this
appeal was complete. At our request, the parties filed supplemental briefing
regarding the Wilson decision. Additionally, Lamoureux filed a request for
judicial notice of the appellate briefing in the Wilson appeal, which we deny
as unnecessary to the disposition of the appeal.
10
section will have been serving lengthy felony sentences for murder by the
time they petition for resentencing.” (Wilson, supra, 53 Cal.App.5th at p. 51;
see § 190, subd. (a) [generally, the punishment is 25 years to life for first
degree murder and 15 years to life for second degree murder].) This would
“undermine the trial court’s discretion in many cases.” (Morales, supra, 63
Cal.4th at p. 405.)
Based on the language of section 1170.95, subdivision (g), as well as the
provision’s legislative history, discussed post, the Wilson court concluded a
“court is not required to mechanically apply excess custody credits to reduce
or eliminate the parole period imposed at a resentencing pursuant [to]
section 1170.95. Instead, and notwithstanding excess custody credits, the
court may exercise its discretion when deciding whether to order a period of
parole.” (Wilson, supra, 53 Cal.App.5th at p. 46.) “A contrary interpretation
would require [the court] to add words to section 1170.95 that do not
currently exist.” (Id. at p. 52) We agree with, and adopt, the Wilson court’s
reasoning.
Additionally, we believe the Morales decision is instructive for another
reason not discussed in the Wilson decision. “When legislation has been
judicially construed and subsequent statutes on a similar subject use
identical or substantially similar language, the usual presumption is that the
Legislature intended the same construction, unless a contrary intent clearly
appears.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135; see People v.
Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199 [“[W]e must assume
that, when enacting [legislation], the Legislature [is] aware of existing
related laws and intend[s] to maintain a consistent body of rules.”].)
Both section 1170.95, subdivision (g) and the Proposition 47 statute are
contained in the same article of the Penal Code (Part 2, Title 7, Chapter 4.5,
11
Article 1). Both provisions address a resentenced person’s entitlement to
credit for time served and the discretion of the court to order the person to be
subject to parole supervision. Further, as noted, both provisions contain
substantially similar statutory language. Given these parallels between
section 1170.95, subdivision (g) and the Proposition 47 statute, we presume
the Legislature was aware of the Morales decision and its analysis of the
Proposition 47 statute. We also assume the Legislature intended
section 1170.95, subdivision (g) to receive the same construction the Morales
court previously gave to the Proposition 47 statute. These presumptions
bolster our conclusion that section 1170.95, subdivision (g)—like the
Proposition 47 statute—does not require a court to automatically offset a
resentenced person’s parole supervision period by the person’s excess custody
credits.
4
Lamoureux raises four main arguments in support of her claim that the
court erred in placing her on parole supervision for a period of three years.
First, Lamoureux tries to distinguish the Morales decision on grounds
that the decision was based in part on Proposition 47’s unique legislative
history. In its discussion of legislative history, the Morales court assumed
the voters who approved Proposition 47 “read and were guided by the ballot
materials concerning the proposition.” (Morales, supra, 63 Cal.4th at p. 406.)
Included in these ballot materials was a Legislative Analyst analysis, which
stated as follows: “ ‘Offenders who are resentenced would be required to be
on state parole for one year, unless the judge chooses to remove that
requirement.’ ” (Id. at pp. 406–407.) According to the Morales court, this
analysis unambiguously “promised voters that offenders would be on parole
for one year unless the judge deemed it not necessary….” (Id. at p. 407.)
12
This, in turn, suggested that the voters who approved Proposition 47 did not
intend to enact an excess custody credit offset. (See ibid.)
The legislative history for Senate Bill No. 1437 is not especially robust
on the topic of parole supervision for resentenced persons. But it is not silent
either. An analysis of Senate Bill No. 1437 conducted by the Office of Senate
Floor Analyses states that the bill “[a]llows the court to order [a] person
granted relief to be subject to parole supervision for up to three years
following the completion of the sentence.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Sen. Bill No. 1437 (2017–2018 Reg. Sess.)
Aug. 30, 2018, p. 6.) Similarly, the Department of Finance’s enrolled bill
report states that “[i]f a person is granted relief, the bill allows the court to
impose a term of parole supervision up to three years.” (Dept. of Fin.,
Enrolled Bill Rep. on Sen. Bill No. 1437 (2017–2018 Reg. Sess.) Sept. 7, 2018,
p. 2.) These legislative materials, like the official ballot pamphlet materials
for Proposition 47, are “easy to understand and entirely unambiguous” in
their assurance that a court will have discretion to impose parole supervision
on a person who is resentenced. (Morales, supra, 63 Cal.4th at p. 407.)
Further, we acknowledge the general aim of Senate Bill No. 1437 was
“ ‘to restore proportional responsibility in the application of California’s
murder statute’ [citation] by eliminating harsh sentences for defendants who
played only a relatively minor role in a felony in which a victim was killed,
while still retaining murder liability for more culpable defendants.” (People
v. Galvan (2020) 52 Cal.App.5th 1134, 1143–1144.) But, as the Wilson court
correctly recognized, section 1170.95 also “serves the ‘objective of parole’—to
provide ‘supervision and counseling, to assist in the parolee’s transition from
imprisonment to discharge and reintegration into society.’ ” (Wilson, supra,
53 Cal.App.5th at pp. 50–51; see § 3000, subd. (a)(1) [“The Legislature finds
13
and declares that the period immediately following incarceration is critical to
successful reintegration of the offender into society and to positive
citizenship.”].) In light of this goal, we believe “it is consistent with the
legislative purpose behind section 1170.95 to allow a court to impose a parole
period even where excess custody credits exist.” (Wilson, at p. 51.)
Moreover, Lamoureux has directed us to no legislative history
supporting her construction of section 1170.95, subdivision (g), and we are
aware of none based on our own research. We would expect there to be at
least some indication in the legislative history that a court must apply a
person’s excess custody credits against a parole supervision period, if the
Legislature had intended the statute to require an offset of this nature. The
absence of such legislative history suggests section 1170.95, subdivision (g)
imposes no offset requirement. (Wilson, supra, 53 Cal.App.5th at p. 50
[“there is no legislative history” suggesting the parole supervision period
must be offset by excess custody credits]; see Jones v. Lodge at Torrey Pines
Partnership (2008) 42 Cal.4th 1158, 1169 [interpreting statute by reference to
“legislative history or, more precisely, the absence of legislative history”].)
Second, Lamoureux contends section 1170.95, subdivision (g), should be
interpreted to ensure consistency with section 1170, subdivision (a)(3), a
provision governing custody credits in the determinate sentencing context.
Section 1170, subdivision (a)(3) states in part: “In any case in which the
amount of preimprisonment credit … is equal to or exceeds any sentence
imposed … the entire sentence shall be deemed to have been served … and
the defendant shall not be actually delivered to the custody of the secretary
or to the custody of the county correctional administrator. The court shall
advise the defendant that he or she shall serve an applicable period of parole
… unless the in-custody credits equal the total sentence, including both
14
confinement time and the period of parole ….” Courts have interpreted
section 1170, subdivision (a)(3) “as providing that excess custody credits
apply to a term of parole.” (People v. Steward (2018) 20 Cal.App.5th 407, 424;
see, e.g., In re Bush (2008) 161 Cal.App.4th 133, 140–141.)
Section 1170, subdivision (a)(3) does not assist Lamoureux. As the
Wilson court explained, the Morales court’s “discussion of section 2900.5 … is
equally applicable to section 1170(a)(3) as both sections are identical as to the
purpose and rules concerning the application of credit for time served to
reduce or eliminate a term of imprisonment and parole. [Citation.] As we
must assume the Legislature had in mind section 1170(a)(3) when enacting
section 1170.95, it was aware of section 1170(a)(3)’s rule allowing credit for
time served and credit to reduce or eliminate any period of parole. We may
further assume the Legislature was aware that the purpose behind the rule
in section 1170(a)(3), like section 2900.5, was ‘to equalize the treatment of ...
those who could not post bail.’ [Citation.] Consequently, had the Legislature
not intended to leave the issue of parole to the trial court’s discretion in
section 1170.95, it could have easily made specific reference to
section 1170(a)(3) or otherwise modified the court’s right to impose a parole
period. [Citations.] Instead, the Legislature gave the trial court unfettered
discretion to impose a period of parole at the completion of any sentence
imposed under section 1170.95.” (Wilson, supra, 53 Cal.App.5th at pp. 51–52;
see Holmes v. Jones (2000) 83 Cal.App.4th 882, 890 [“Where a statute with
reference to one subject contains a given provision, omission of that provision
from a similar statute concerning a related subject shows that a different
intention existed.”].) We agree with the Wilson court.
Third, Lamoureux argues that section 1170.95, subdivision (g)
establishes a deadline governing a person’s parole eligibility that in many
15
respects resembles a statute of limitations. As best we can discern, she
contends section 1170.95, subdivision (g) prohibits a resentenced person from
being subject to parole supervision at any point later than three years after
the completion of the person’s sentence. She bases her argument on the
following italicized language: “The judge may order the petitioner to be
subject to parole supervision for up to three years following the completion of
the sentence.” (§ 1170.95, subd. (g), italics added.)
This argument raises the question: when is the sentence complete?
According to Lamoureux, the sentence is complete upon the expiration of the
new custodial term imposed during resentencing.6 For example, Lamoureux
claims her sentence was complete upon the expiration of her new six-year
custodial term—a date that took place several years prior to her
resentencing. Therefore, she contends she could not be subject to parole
supervision later than three years after the expiration of her new six-year
custodial term—a date that also preceded her resentencing.7
We are not persuaded by Lamoureux’s construction of section 1170.95,
subdivision (g). In our view, the most natural reading of the statute is that
the first prepositional phrase (“for up to three years”) modifies the noun
immediately preceding it (“parole supervision”), thereby establishing that a
resentenced person may be subject to parole supervision for up to three years
6 After briefing was complete, Lamoureux sought judicial notice of an
excerpt from the Operations Manual for the Department of Corrections and
Rehabilitation, which she contends corroborates her argument as to when a
sentence is complete. We deny the request, as the excerpt does not reference
when the sentence is complete for a person who is resentenced under
section 1170.95, let alone corroborate Lamoureux’s argument.
7 Lamoureux does not identify the date she believes her sentence was
complete. However, she calculates April 27, 2019 as the last date on which
she could be subject to parole supervision.
16
in duration. (See People v. Tokash (2000) 79 Cal.App.4th 1373, 1379, fn. 7 [“a
prepositional phrase ordinarily modifies nouns or pronouns”].) But this
phrase is silent on the issue of when a person may be subject to parole
supervision. That subject is the province of the next prepositional phrase in
the statute (“following the completion of the sentence”). (§ 1170.95, subd. (g).)
Read in full, the statute thus provides that a person may be subject to parole
supervision following the completion of the sentence and, furthermore, the
parole supervision period may be up to three years in duration.
Our construction of section 1170.95, subdivision (g) is consistent with
the Morales court’s interpretation of the Proposition 47 statute. Like
section 1170.95, subdivision (g), the Proposition 47 statute provides that a
person may be subject to parole for a defined period of time following
completion of his or her sentence. (§ 1170.18, subd. (d) [a person “shall be
subject to parole for one year following completion of his or her sentence”].)
The Morales court impliedly determined the defined period of time
established the maximum duration of the parole period, not a deadline akin
to a statute of limitations. (See Morales, supra, 63 Cal.4th at p. 405 [the
Proposition 47 statute “seems to require the one-year parole period”]; id. at
p. 409 [“the voters imposed a price for [the] benefit [of resentencing]—parole
for one year”].) Further, the court concluded a resentenced person could “be
placed on parole when released on the reduced sentence,” not merely upon the
completion of the person’s new custodial term. (Id. at p. 409, italics added;
see People v. Hronchak (2016) 2 Cal.App.5th 884, 890 [“An individual who
successfully petitions for resentencing under Proposition 47 is subject to a
one-year term of parole supervision following his or her release from
custody”], italics added, citing Morales, at pp. 404–405.) These conclusions
17
confirm our interpretation of the nearly-identical statute at issue here,
section 1170.95, subdivision (g).
Further, we note that Lamoureux’s interpretation of section 1170.95,
subdivision (g)—whereby a three-year clock begins ticking upon the
expiration of the new custodial term—would in many cases mean a person
would be subject to parole supervision only while the person is in custody, but
not after the person’s release from custody. This runs contrary to the very
notion “that a parole term begins only after release from prison.” (In re Lira
(2014) 58 Cal.4th 573, 582; see People v. Nuckles (2013) 56 Cal.4th 601, 608
[“It is apparent that a term of imprisonment and the onset of parole are
distinct phases under the legislative scheme.”].)
Having concluded that section 1170.95, subdivision (g) does not
establish a three-year deadline after which a resentenced person may no
longer be subject to parole supervision, we must still determine whether the
trial court placed Lamoureux on parole supervision “following the completion
of the sentence,” as section 1170.95, subdivision (g) requires. We conclude it
did. Assuming without deciding that Lamoureux completed her sentence
when her new six-year custodial term expired, the court properly placed her
on parole supervision “following the completion of the sentence” because it
ordered her to undergo parole supervision upon her release from custody.
Her release from custody occurred well after—i.e., following the completion
of—her new six-year custodial term.
Fourth, Lamoureux claims the Legislature rationally could limit a
court’s discretion to impose parole supervision on a defendant who has been
resentenced under Senate Bill No. 1437. She contends such a limitation is
consistent with Senate Bill No. 1437’s stated purpose of ensuring “that the
law of California fairly addresses the culpability of the individual ….”
18
(Stats. 2018, ch. 1015, § 1, subd. (e).) We have no occasion to determine the
rationality of such a limitation because section 1170.95, subdivision (g), does
not curtail a court’s discretion to impose parole supervision in the manner
Lamoureux suggests.
5
In sum, we conclude section 1170.95, subdivision (g) does not require a
court to automatically apply a person’s excess custody credits to offset the
person’s parole supervision period. We conclude, instead, that a court has
discretion to order a resentenced person to be subject to parole supervision
for up to three years in duration upon the person’s release from custody.
Therefore, we discern no error in the trial court’s order placing Lamoureux on
parole supervision for three years upon her custodial release.
B
Restitution Fine
1
At the initial sentencing on April 19, 2013, the trial court imposed a
restitution fine of $560 under section 1202.4, subdivision (b). (People v.
Miller, supra, D067451.) In her direct appeal, Lamoureux challenged the
restitution fine. She claimed the court misapplied the restitution fine statute
in a manner that violated ex post facto principles because the court allegedly
imposed the minimum restitution fine in effect at the time of sentencing
($280), multiplied by two for the number of convictions, rather than the
minimum restitution fine in effect at the time she committed the offenses
($200), multiplied by two for the number of convictions. (Ibid.)
In our decision affirming the judgment, in part, and reversing the
judgment, in part, we noted the $560 restitution fine was “conspicuously
equal to the inapplicable minimum fine in effect at the time of sentencing
19
multiplied by the number of Lamoureux's convictions.” (People v. Miller,
supra, D067451) However, because we were remanding the matter for
purposes unrelated to the restitution fine, we did not determine whether the
trial court violated ex post facto principles in setting the restitution fine. We
instructed the court “to modify the restitution fine in accordance with the
applicable statutory minimum if appropriate,” yet clarified that the court was
“not precluded from setting the fine at the greater amount previously
imposed [i.e., at $560] so long as it [did] so using a rational method of
computation.” (Ibid.) The record does not indicate whether the court
imposed a restitution fine at the resentencing hearing on remand and, if so,
in what amount.
As noted, Lamoureux thereafter filed a Senate Bill No. 1437 petition to
vacate her murder conviction and to be resentenced, which the court granted.
During resentencing, the court again imposed a $560 restitution fine. Now,
Lamoureux challenges the restitution fine on grounds that the court failed to
employ a rational method of computation when setting the amount of the
restitution fine.
The People assert Lamoureux forfeited her argument by failing to
object to the restitution fine in the trial court. We agree. By not objecting to
the restitution fine, Lamoureux forfeited the issue for our consideration.
(People v. Pinon (2016) 6 Cal.App.5th 956, 968 (Pinon); People v. Garcia
(2010) 185 Cal.App.4th 1203, 1218.) Further, the $560 restitution fine is less
than the statutory maximum of $10,000. (§ 1202.4, subd. (b)(1).) Therefore,
the sentence is not an unauthorized sentence subject to our correction on
appeal despite Lamoureux’s failure to object in the trial court.
Lamoureux claims her trial counsel was ineffective because he did not
object to the restitution fine. We disagree. “If, as here, the record on appeal
20
sheds no light on why counsel acted or failed to act in the manner challenged,
an appellate court must reject [a] claim of ineffective assistance unless there
can be no satisfactory explanation for counsel's conduct.” (People v. Kendrick
(2014) 226 Cal.App.4th 769, 778.) We believe there is a satisfactory
explanation for counsel’s conduct. During resentencing, the trial court
imposed the upper term for Lamoureux’s conspiracy conviction. Given the
court’s imposition of the harshest possible custodial penalty, Lamoureux’s
counsel reasonably could have refrained from objecting to the restitution fine
for fear that an objection would have caused the court to reassess and
increase the restitution fine from $560 to an amount upwards of the statutory
maximum of $10,000.
2
Next, we consider whether Lamoureux’s excess custody credits must be
applied to offset her $560 restitution fine. The People concede the excess
custody credits offset the restitution fine and we accept the concession.
At the time of Lamoureux’s offense in 2011, section 2900.5 provided in
pertinent part as follows: “In all felony and misdemeanor convictions, either
by plea or by verdict, when the defendant has been in custody … all days of
custody of the defendant, including days … credited to the period of
confinement pursuant to Section 4019, shall be credited upon his or her term
of imprisonment, or credited to any fine on a proportional basis, including,
but not limited to, base fines and restitution fines, which may be imposed, at
the rate of not less than thirty dollars ($30) per day, or more, in the discretion
of the court imposing the sentence. 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.”
21
Under the plain terms of section 2900.5, as the statute existed at the
time of the offense, the trial court was required to apply Lamoureux’s excess
custody credits to reduce her $560 restitution fine at a rate of no less than
$30 per day of excess custody credit. As previously noted, Lamoureux had a
minimum of 1,400 excess custody credits. Even if the court were to reduce
the restitution fine by the statutory minimum of $30 per day of excess
custody credit, a mere 19 days of excess custody credits would offset the
restitution fine in its entirety. Therefore, we deem the restitution fine
satisfied in full.8 (See People v. Morris (2015) 242 Cal.App.4th 94, 101–103
[deeming defendant’s restitution fine satisfied under version of section 2900.5
in effect at the time of defendant’s offense].)
C
Presentence Conduct Credits
When the trial court sentenced Lamoureux on April 19, 2013, it
determined she had 648 presentence actual time credits and zero presentence
conduct credits. Lamoureux asserts, and the People do not dispute, that the
court denied her presentence conduct credits because she stood convicted of
felony murder and the court therefore applied section 2933.2, subdivision (c).
Section 2933.2, subdivision (c), is an exception to the rule that “detainees in
local institutions are usually able to earn credit against their eventual
sentence for good behavior and work performed.” (People v. Brown (2020) 52
8 Earlier in the opinion, we concluded the trial court was not required to
apply Lamoureux’s excess custody credits to reduce her parole supervision
period based on the language and legislative history of section 1170.95,
subdivision (g). However, section 1170.95, subdivision (g) “says nothing
about fines, and thus, unlike the issue of parole, it does not supplant the
legislative intent of section 2900.5 as it applies to fines.” (Pinon, supra, 6
Cal.App.5th at pp. 966–967, italics added.)
22
Cal.App.5th 899, 903; see § 4019.) It “totally eliminate[s] presentence
conduct credit for defendants convicted of murder.” (Brown, at p. 903.)
When the court granted Lamoureux’s Senate Bill No. 1437 petition,
vacated her murder conviction, and resentenced her, the court again
determined she had 648 presentence credits. As the basis for its
determination, the court referenced and adopted its credit calculation from
the initial sentencing. Thus, it is apparent these 648 presentence credits
consist entirely of actual credits.
Lamoureux contends the court erred in denying her any presentence
conduct credits because her Senate Bill No. 1437 petition resulted in her
murder conviction being vacated. Thus, according to Lamoureux,
section 2933.2, subdivision (c) no longer applies to her. The People argue the
issue of Lamoureux’s entitlement to presentence conduct credits is moot. In
the alternative, they claim Lamoureux was validly “convicted of murder”
(§ 2933.2, subd. (a)), notwithstanding the changes effectuated by Senate Bill
No. 1437, and section 2933.2, subdivision (c) therefore still applies to her.
We agree with the People that the issue of Lamoureux’s entitlement to
presentence conduct credits is moot. “As a general rule, an appellate court
only decides actual controversies. It is not the function of the appellate court
to render opinions [‘ “ ‘]upon moot questions or abstract propositions, or ...
declare principles or rules of law which cannot affect the matter in issue in
the case before it.[’ ” ’] [Citation.] ‘[A] case becomes moot when a court ruling
can have no practical effect or cannot provide the parties with effective
relief.’ ” (People v. Rish (2008) 163 Cal.App.4th 1370, 1380.)
As noted, Lamoureux has completed her new custodial term and been
released from prison. She already has more than enough excess custody
credits (1,400) to be applied against, and fully eliminate, her $560 restitution
23
fine. (See ante Part III.B.) An award of presentence custody credits cannot
operate to eliminate or reduce her parole supervision period. (See ante Part
III.A.) Further, an award of presentence conduct credits to Lamoureux would
not remove any stigma of criminality. (See People v. Buell (2017) 16
Cal.App.5th 682, 688.) Regardless of the number of presentence conduct
credits she receives, our judicial records will reflect that Lamoureux was
convicted of felony murder, filed a successful petition for relief under Senate
Bill No. 1437, and was resentenced to a prison term of six years.
As no adverse collateral consequences would be avoided or ameliorated
by an award of presentence custody credits, the issue is moot.9 (People v.
Petri (2020) 45 Cal.App.5th 82, 92–93 [defendant’s entitlement to additional
conduct credits was moot because defendant was released from custody and
was not ordered to pay amounts against which excess custody credits may be
applied]; People v. Valencia (2014) 226 Cal.App.4th 326, 327, 329 [“any
contention concerning inadequate presentence credits is moot”].)
IV
DISPOSITION
The judgment is modified to reflect that Lamoureux’s $560 restitution
fine (§ 1202.4, subd. (b)) is deemed satisfied in full by application of her
excess custody credits (§ 2900.5). In all other respects, the judgment is
affirmed. The clerk of the superior court is directed to modify the abstract of
9 Lamoureux claims the award of zero presentence conduct credits
renders her sentence “facially illegal” and marred by a “clerical error” subject
to our correction. These arguments are inapposite to the issue of mootness.
Even assuming the failure to award presentence conduct credits was
erroneous, “any determination by us that the trial court erred would have no
practical effect” for the reasons already discussed. (Liberty National
Enterprises, L.P. v. Chicago Title Ins. Co. (2013) 217 Cal.App.4th 62, 81.)
24
judgment to reflect this modification and to forward a copy of the amended
abstract to the Department of Corrections and Rehabilitation.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HUFFMAN, J.
25