People v. Taylor CA2/6

Filed 4/20/23 P. v. Taylor 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifie d 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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B319887
(Super. Ct. No. F485023)
Plaintiff and Respondent, (San Luis Obispo County)
v.
GARRETT JOHN TAYLOR,
Defendant and Appellant.
Here we hold that a period of mandatory supervision
under Penal Code1 section 1170, subdivision (h)(5)(B), does not
entitle a defendant to have his felony convictions reduced to
misdemeanors under section 17, subdivision (b). We therefore
conclude that Garrett John Taylor, who was sentenced to a term
in county jail followed by a period of mandatory supervision is not
entitled to have his felony convictions reduced to misdemeanors
under section 17, subdivision (b).
All further references are to the Penal Code unless
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otherwise indicated.
We affirm the trial court’s order denying Taylor’s petition
under section 17, subdivision (b).
FACTS
Taylor was convicted by a jury of vehicular manslaughter
(§ 191.5, subd. (b)) and unlawful driving or taking of a vehicle.
(Veh. Code § 10851, subd. (a).) Both offenses are “wobblers,”
punishable as a felony or a misdemeanor.
The trial court denied probation and sentenced Taylor to a
split sentence under section 1170, subdivision (h)(5)(B): two and a
half years in county jail and one and a half years of mandatory
supervision. Imprisonment in the county jail pursuant to section
1170, subdivision (h), makes the offenses felonies. (§ 17, subd.
(a).)
After Taylor served his sentence, he moved to have his
felony convictions reduced to misdemeanors under section 17,
subdivision (b). The trial court denied the motion because it had
no statutory authority to reduce his sentence.
DISCUSSION
Section 17, subdivision (b), provides in part: “When a crime
is punishable, in the discretion of the court, either by
imprisonment in the state prison or imprisonment in a county jail
under the provisions of subdivision (h) of Section 1170, or by fine
or imprisonment in the county jail, it is a misdemeanor for all
purposes under the following circumstances: ¶ (1) After a
judgment imposing a punishment other than imprisonment in
the state prison or imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170 [¶. . . ¶] ¶ (3) When
the court grants probation to a defendant and at the time of
granting probation, or on application of the defendant or
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probation officer thereafter, the court declares the offense to be a
misdemeanor.”
Under the plain and clear language of section 17,
subdivision (b)(1), Taylor is not entitled to have his convictions
reduced to misdemeanors because he was sentenced to county jail
under subdivision (h) of section 1170. Section 17, subdivision (b),
makes no exception for a split sentence under section 1170,
subdivision (h)(5)(B). Section 17, subdivision (b)(3), is not
applicable because Taylor was not granted probation.
Taylor argues that effective January 1, 2019, the
Legislature amended section 17, subdivision (b)(3), to eliminate
the requirement that the court grant probation “without the
imposition of a sentence.” (Assem. Bill 1941, Stats. 2018, ch. 18
§ 1.) Now the court can reduce a felony to a misdemeanor when
the court grants probation even if a sentence was imposed.
Taylor claims that mandatory supervision is the functional
equivalent of probation. Thus, Taylor believes he is eligible for
relief under section 17, subdivision (b)(3). Taylor’s argument
suffers from at least two defects, either one of which is fatal to his
cause.
First, Taylor cannot escape that he was sentenced under
section 1170, subdivision (h). Section 17, subdivision (b)(1),
categorically denies relief to anyone who was sentenced under
section 1170, subdivision (h). There are no exceptions. Thus, he
could not obtain relief even if mandatory supervision were the
functional equivalent of probation.
Second, mandatory supervision is not the functional
equivalent of probation. “A split sentence of local jail time
followed by a period of mandatory supervision is a hybrid
sentence, distinct from both probation and parole.”
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(People v. Bryant (2021) 11 Cal.5th 976, 985 (Bryant).) In fact, an
earlier version of section 1170, used the term “mandatory
probation.” (Stats. 2011, ch. 39, § 27.) The subdivision was
amended to change the term to “mandatory supervision.” (Stats.
2012, ch. 43, §§ 27, 14; see Bryant, supra, 11 Cal.5th at p. 985.)
The Legislature would not have bothered to amend the statute if
it viewed mandatory supervision as the functional equivalent of
probation.
Taylor’s reliance on People v. Borynack (2015) 238
Cal.App.4th 958 (Borynack) is misplaced. There, the defendant
pled guilty to multiple counts of possession of a destructive device
in violation of section 18715. The trial court sentenced him to
two years on one of the counts, and concurrent two-year terms on
the remaining counts. After applying custody credits, the court
suspended execution of the entire remaining sentence and placed
the defendant on mandatory supervision pursuant to section
1170, subdivision (h)(5). The People objected on the ground that
section 18780 expressly prohibits the suspension of a sentence or
a grant of probation for persons convicted under section 18715.
The Court of Appeal argued with the People that section 18780
unequivocally barred the grant of probation and the suspension
of sentence. (Id. at p. 964.)
Borynack, supra, 238 Cal.App.4th 958, does not concern
section 17, subdivision (b). The court in Borynack was not
required to state that mandatory supervision means placing the
defendant on probation. It could have stopped when it said that
mandatory supervision means suspending the execution of the
defendant’s sentence, also barred by section 18780. Thus, the
statement on which Taylor relies is dicta. To the extent Taylor
relies on Borynack, for the proposition that mandatory
4
supervision is the functional equivalent of probation, our
Supreme Court has stated otherwise in Bryant, supra, 11 Cal.5th
976. Finally, Taylor cannot escape that he was imprisoned in the
county jail under section 1170, subdivision (h).
Taylor’s reliance on section 1203.3, subdivision (a), is also
misplaced. That section provides in part: “The court . . . has the
authority at any time during the term of mandatory supervision
pursuant to subparagraph (B) of paragraph (5) of subdivision (h)
of Section 1170 to revoke, modify, or change the conditions of the
court’s order suspending the execution of the concluding portion
of the supervised person’s term.”
Section 1203.3 authorizes the court to revoke, modify, or
change the conditions of mandatory supervision. It does not
authorize the court to reduce a hybrid sentence from a felony to a
misdemeanor.
DISPOSITION
The order denying Taylor’s petition under section 17,
subdivision (b), is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Sanger Swysen & Dunkle and Stephen K. Dunkle, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Christopher
G. Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.