Opinion
G052219
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN K. REYNOLDS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF1744) OPINION Appeal from an order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed in part, reversed in part. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Benjamin K. Reynolds contends the court erred when it resentenced him to a misdemeanor and imposed parole pursuant to Penal Code section 1170.18, subdivisions (a), (b), and (d). Alternatively, defendant contends his excess custody credits should be counted against his parole time and outstanding fines. He further contends his fines must be reduced to the applicable misdemeanor amounts.
All statutory references are to the Penal Code unless otherwise stated.
We agree the court should have applied defendant's excess custody credits to reduce his eligible fines. In all other respects, we affirm the order.
FACTS
On July 18, 2012, defendant pleaded guilty to one count of possessing methamphetamine on June 12, 2012. (Health & Saf. Code, § 11377, subd. (a).) The court sentenced him to two years in prison pursuant to a plea agreement. After the passage of realignment legislation, defendant was released to postrelease community supervision (PRCS).
On June 3, 2015, while defendant was still serving PRCS, he petitioned under section 1170.18 for the reduction of his 2012 felony conviction to a misdemeanor conviction. At the outset of the hearing on defendant's petition, defense counsel requested the court to reduce defendant's conviction "to a misdemeanor and resentence him." Shortly thereafter, defense counsel reiterated that defendant's written petition requested the court to "resentence him" to a misdemeanor. Defense counsel also stated that defendant had credits in excess of the maximum amount of punishment for a misdemeanor and that his current credits were "an actual 432" days. The court granted defendant's petition, designated his conviction a misdemeanor, and sentenced him to one year in jail with credit for time served of 365 days.
The court then turned to the issue of whether it should exercise its discretion to place defendant on parole for one year. The People urged the court to do so, arguing defendant posed a risk to public safety and needed continued supervision based on his prior convictions. Defense counsel argued defendant was "maxed out on the misdemeanor case" and also had an equal protection right to be treated similarly to the many other Proposition 47 petitioners whose petitions had been granted but who had not been placed on parole. Pursuant to section 1170.18, subdivision (d), the court placed defendant on parole for one year. Both the prosecutor and defense counsel confirmed to the court that there were no further matters to discuss.
DISCUSSION
Defendant has forfeited his contention the court improperly imposed parole.
Defendant contends his period of PCRS was not part of his "sentence" within the meaning of section 1170.18 and therefore the court should have designated his felony conviction a misdemeanor under section 1170.18, subdivision (f), which applies to persons who have "completed [a] sentence for a conviction."
Defendant has forfeited this statutory contention by failing to raise it below (and, indeed, requesting the court to resentence him). (In re Seaton (2004) 34 Cal.4th 193, 198.) Defendant's excess custody credits may not be applied to reduce his parole term.
Defendant contends he has 171 days of excess custody credit. Relying on our former opinion in People v. Pinon (2015) 238 Cal.App.4th 1232, review granted November 18, 2015, S229632, and cause remanded July 27, 2016, he argues the court was required "'to apply excess custody credits to the one-year period of parole, and if that parole term exceeds what remains on PRCS, to reduce the parole period to coincide with the end date of defendant's PRCS.'"
After briefing was complete in this case, our Supreme Court issued its opinion in People v. Morales (2016) 63 Cal.4th 399 (Morales) and transferred the former Pinon case back to this court with directions to vacate our decision and reconsider it in light of its decision in Morales, which we have now done. (People v. Pinon (2016) 6 Cal.App.5th 956 (Pinon).)
In Morales, the Supreme Court held "that credit for time served does not reduce the parole period. When it voted on Proposition 47, the electorate was informed, and it intended, that a person who benefitted from the new legislation by receiving a reduced sentence would be placed on parole for one year after completion of the reduced sentence, subject to the court's discretion to release the person from that parole." (Morales, supra, 63 Cal.4th at p. 403.) Morales observed that "in the ordinary situation of original sentencing, excess presentence credits can reduce any period of parole," and that section 2900.5 "expressly so states." (Morales, at p. 405.) However, the legislative purpose behind section 2900.5 — i.e., to eliminate the unequal treatment suffered by indigent defendants who are financially unable to post bail (and therefore languish in presentence custody) — "is irrelevant to resentencing under Proposition 47." (Morales, at p. 406.) A person resentenced pursuant to section 1170.18, subdivisions (a) and (b), must serve parole for one year unless the court in its discretion orders otherwise. (Morales, at p. 409.) Accordingly, the trial court did not err by failing to apply defendant's excess custody credits against his one-year parole term.
In Pinon, supra, 6 Cal.App.5th 956, we reaffirmed our original holding that the parole term "may not exceed the remaining time on defendant's term of PRCS." (Id., at p. 960.) Thus, if defendant is still on parole when the remittitur issues, the court must determine whether the period of parole exceeds the time remaining on defendant's original term of PRCS and, if so, adjust the parole term to terminate on the date PRCS would have been terminated. Defendant has forfeited his contention that his restitution fine and parole revocation restitution fine must be reduced.
Defendant contends his restitution fine (§ 1202.4, subd. (b)) and parole revocation restitution fine (§ 1202.45, subd. (a)) should be reduced to the applicable misdemeanor fine amounts. At his original sentencing hearing in July 2012, defendant was assessed $240 for each of these restitution fines. He asserts each such fine should be $120 for a misdemeanor committed in 2012.
Generally, a court must impose a restitution fine on a person convicted of a crime. (§ 1202.4, subd. (b).) Although the court has discretion in setting the amount of the restitution fine, "commensurate with the seriousness of the offense," the restitution fine for a misdemeanor conviction must not be less than $120 starting on January 1, 2012, $140 starting on January 1, 2013, or $150 starting on January 1, 2014, and not more than $1,000. (§ 1202.4, subd. (b)(1).) If the convicted person's sentence includes parole, the court must impose an additional parole revocation fine in the same amount as the restitution fine. (§ 1202.45, subd. (a).) Thus, defendant's fines are lawful, since they do not exceed $1,000 each.
Because the fines imposed on defendant were within the allowable range for a misdemeanor conviction, they did not constitute an "unauthorized sentence." (People v. Scott (1994) 9 Cal.4th 331, 354 ["sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case"].) By failing to raise the amount of the fines in his petition for resentencing or at the hearing on the petition, defendant forfeited any objection to the amount of the fines originally imposed on him. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [forfeiture rule applies to appellate claims challenging the amount of restitution].) Section 2900.5 is applicable to defendant's restitution fines.
Defendant argues he is entitled to "credit against his . . . fines for any excess [custody] credits over and above the term to which he is resentenced." We agree this is proper as to defendant's fines. Although the legislative purpose of section 2900.5 is irrelevant to the mandatory (subject to the court's discretion) parole term imposed by Proposition 47 (Morales, supra, 63 Cal.4th at p. 406), that purpose remains relevant to fines imposed upon defendants, many of whom may have languished in presentence custody due to indigency. More importantly, section 1170.18, subdivision (d), mandates that a "person who is resentenced pursuant to subdivision (b) shall be given credit for time served . . . ." Because excess custody time cannot be credited against the parole period, the only type of excess custody credit available to resentenced persons is a credit against punitive assessments.
Defendant properly raises this issue on appeal. "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Under section 2900.5, subdivision (a), custody days are credited against "any base fine." "'A fine is punitive.'" (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748.) Thus, section 2900.5, subdivision (a) "does not apply to nonpunitive assessments." (3 Witkin & Epstein, Cal. Criminal Law (2016 Supp.) § 464, p. 151.)
The only fines identified in the record are defendant's $240 restitution fine (§ 1202.4, subd. (b)) and $240 parole revocation restitution fine (§ 1202.45). In July 2013, the Legislature amended section 2900.5, subdivision (a) to eliminate restitution fines from the fines to which excess custody credits may be applied. (Stats. 2013, ch. 59, § 7.) "[T]his amendment was intended to make section 2900.5 consistent with section 1205, which provides that a restitution fine may not be satisfied by the time a defendant is in custody. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 514 (2013-2014 Reg. Sess.) as amended Apr. 23, 2013, p. 1.) The bill analysis for Senate Bill No. 514 states: 'This bill clarifies that [a] term of imprisonment cannot satisfy a restitution fine.'" (People v. Morris (2015) 242 Cal.App.4th 94, 100, fn. omitted.)
Defendant's $40 court security fee (§ 1465.8) and $30 criminal conviction assessment (Gov. Code, § 70373) are nonpunitive. (People v. Alford (2007) 42 Cal.4th 749, 759 [court security fee]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492-1493 [criminal conviction assessment].) Section 2900.5 is inapplicable to them. --------
In People v. Morris, supra, 242 Cal.App.4th 94, the appellate court held that, because the defendant had committed his offense in January 2013, "the ex post facto clause applies to [his] restitution fine, and therefore the restitution fine is governed by the statutes in effect at the time of his offense." (Id. at p. 102.) Here, too, because defendant committed his crime in June 2012, his excess custody days are applicable to reduce his restitution fines under the version of section 2900.5 in effect at the time of his offense.
DISPOSITION
The matter is remanded to the trial court with instructions to apply defendant's excess custody credits against his restitution fines consistently with this opinion and to adjust his parole period, if necessary, so that it does not exceed defendant's original term of PRCS. In all other respects, the order is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.