Opinion
F071434
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. RICKEY LYNN CHAPMAN, Defendant and Appellant.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF151484A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John Oglesby, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
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FACTS
In November 2013, defendant/appellant Rickey Lynn Chapman pled no contest to a charge of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and allegations that he had suffered to two prior prison terms under Penal Code section 667.5, subdivision (b).
Neither party discusses the facts underlying defendant's offense, as they are irrelevant to the issue presented on appeal.
All further statutory references are to the Health and Safety Code unless otherwise stated.
Defendant was placed on probation, ordered to register as a narcotics offender (§ 11590), and ordered to complete drug treatment (§ 1210.1.) However, defendant failed to appear for a progress hearing the next month, and a bench warrant was issued.
On March 21, 2014, defendant admitted he violated his probation and stipulated that he was now excluded from drug treatment. Defendant was sentenced to a total term of four years in jail, which was comprised of two years on the possession of a controlled substance count, and one year for each of the two prior prison term enhancements. The court also imposed various fines, fees, assessments, costs and surcharges.
On March 5, 2015, defendant petitioned for resentencing under Penal Code section 1170.18, subdivision (a). The district attorney acknowledged that defendant was entitled to resentencing, and the court granted his request. The court reduced the possession count to a misdemeanor, and resentenced defendant to 394 days. The court credited defendant with 394 days of actual time served and deemed his jail sentence already served. The court placed defendant on parole. Defense counsel did not offer any objections at the resentencing hearing.
Defendant appealed.
DISCUSSION
I. The Trial Court was not Required to Apply Excess Credits to Reduce Defendant's One-Year Parole Term
Defendant argues that his custody credits in excess of his sentence should be applied to reduce his one-year parole term. However, after briefing was completed in this case, the Supreme Court decided this issue against defendant in People v. Morales (2016) 63 Cal.4th 399 (Morales).
In Morales, the defendant was sentenced to 16 months in state prison for felony possession of heroin and was "given credit for time served, including conduct credits, of 220 days." (Morales, supra, 63 Cal.4th at p. 403, italics added.) Under Proposition 47, the trial court "recalled his sentence, reduced the conviction to a misdemeanor, and imposed a jail sentence of time served." (Morales at p. 403.) The court "also imposed one year of parole." (Ibid.)
Morales argued that "his excess custody credits should reduce his parole time." (Morales, supra, 63 Cal.4th at p. 404.) The Supreme Court rejected this argument, observing that Penal Code section 1170.18, subdivision (d) "states that the person shall receive credit for time served and shall be subject to parole." (Morales at p. 405, original italics.) The high court held "that credit for time served does not reduce the parole period" imposed under Penal Code section 1170.18, subdivision (d). (Morales at p. 403.)
Under Morales, we must reject defendant's claim.
We also reject defendant's claim counsel was ineffective for not objecting to the trial court's failure to reduce defendant's one-year parole term. There were no proper grounds for objecting, and therefore no basis for concluding counsel was ineffective.
II. Defendant is Entitled to Have His Fines and Fees Reduced by His Excess Credits Pursuant to Penal Code Section 2900.5
Defendant also contends he is entitled to have various fines and fees reduced by his excess credits pursuant to Penal Code section 2900.5. Morales did not address this issue (Morales, supra, 63 Cal.4th at p. 404), and the Attorney General concedes the matter must be remanded. We accept this concession.
The Attorney General does contend, however, that defendant forfeited the issue by failing to raise it below. But defendant has raised an ineffective assistance of counsel claim based on the failure to object. Therefore, we will address the underlying issue and accept the concession on the merits. --------
III. Defendant Need Not Register as a Narcotics Offender Under Section 11590
Defendant contends that he no longer needs to register as a narcotics offender under section 11590 because that section does not apply to misdemeanors under section 11377. (§ 11590, subd. (c).) The Attorney General agrees, and we accept the concession.
DISPOSITION
The matter is remanded for calculation of defendant's excess credits, which shall be applied to reduce any applicable fines in accordance with section 2900.5. The trial court is further directed to modify its resentencing order to reflect that defendant is not required to register under section 11590. In all other respects, the order is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.