Filed 2/25/16 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specified 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 This opinion has not been certified for publication or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. B265167
(Super. Ct. No. 2013003058)
Plaintiff and Respondent, (Ventura County)
v.
ANDREW LUIS RODRIGUEZ,
Defendant and Appellant.
Andrew Luis Rodriguez appeals from an order recalling his felony sentence,
resentencing him to misdemeanors, and placing him on misdemeanor parole for one year.
The order was entered pursuant to Penal Code section 1170.18, enacted by Proposition 47.1
Appellant contends that he is entitled to have the one-year period of misdemeanor parole
reduced by his excess custody credits, i.e., the number of days by which his time served in
prison exceeds his misdemeanor sentence. He also contends that the period of misdemeanor
parole must be reduced by the number of days that he was released from prison on Post
Release Community Supervision (PRCS). We affirm.
Factual and Procedural Background
In March 2013 appellant pleaded guilty to possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)) and felony receiving stolen property. (§ 496, subd. (a).) In
May 2013 he was sentenced to prison for two years, eight months. The trial court
1
Unless otherwise stated, all statutory references are to the Penal Code.
suspended execution of the sentence and placed appellant on formal probation for 36
months on condition that he serve 184 days in county jail.
In August 2013 appellant admitted probation violations. Probation was revoked, and
the trial court ordered into effect the previously suspended prison sentence of two years,
eight months. Appellant received credits totaling 328 days for time served.
In July 2014 appellant was released from prison on PRCS. In April 2015 his
probation officer filed a petition for revocation of PRCS. The officer alleged, "The offender
is before the Court for his 5th violation [of PRCS] since his release from state prison on 7-
04-14." The fifth violation consisted of the following acts: (1) appellant had failed to report
to the probation officer as directed, (2) he had failed to appear for a psychological
assessment to assist in treatment planning, and (3) he had admitted using methamphetamine
two days earlier. The court found appellant in violation of PRCS and ordered him to serve
90 days in county jail.
Appellant filed a petition for recall of his sentence and for resentencing to
misdemeanors pursuant to subdivisions (a) and (b) of section 1170.18. On April 21, 2015,
the court granted the petition and reduced both felony offenses to misdemeanors. It ordered
appellant to serve 364 days in jail for possession of methamphetamine and 240 days,
consecutively, for receiving stolen property. Appellant received credit for time served and
was placed on misdemeanor parole for one year pursuant to subdivision (d) of section
1170.18.
Proposition 47
"On November 4, 2014, the voters enacted Proposition 47, 'the Safe Neighborhoods
and Schools Act' . . . , which went into effect the next day. (Cal. Const., art. II, § 10, subd.
(a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Before the passage of
Proposition 47, receiving stolen property and possession of methamphetamine were
punishable either as a felony or a misdemeanor. Proposition 47 amended section 496,
subdivision (a) to make receiving stolen property punishable only as a misdemeanor if the
value of the stolen property does not exceed $950 and the defendant has not previously been
convicted of specified serious felonies. It amended section 11377, subdivision (a) to make
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possession of methamphetamine punishable only as a misdemeanor if the defendant has not
previously been convicted of the same serious felonies.
Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section
1170.18 permits persons who are "currently serving a sentence for a conviction . . . of a
felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . .
[to] petition for a recall of sentence . . . [and] to request resentencing" under Proposition 47.
If the petitioner satisfies the criteria in subdivision (a), subdivision (b) provides that "the
petitioner's felony sentence shall be recalled and the petitioner resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety." Subdivision (d)
provides, "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."
The One-Year Period of Misdemeanor Parole Is Not Reduced
By Excess Custody Credits or Prior Periods on PRCS
Appellant contends that, against the one-year period of misdemeanor parole, he is
entitled to credit for the number of days by which his time served in prison exceeds his
misdemeanor sentence.2 Such credits are referred to as "Sosa credits." In In re Sosa (1980)
102 Cal.App.3d 1002, the court held that presentence custody credits in excess of a
prisoner's term of imprisonment reduce the prisoner's time on parole.
"[O]ur 'task is simply to interpret and apply the initiative's language so as to
effectuate the electorate's intent.' [Citation.]" (Robert L. v. Superior Court (2003) 30
Cal.4th 894, 901.) " '[W]e apply the same principles that govern statutory construction.
[Citation.] Thus, "we turn first to the language of the statute, giving the words their
2
This issue is before the California Supreme Court in People v. Morales, no. S228030,
review granted Aug. 26, 2015. (See Supreme Ct. News Release dated Oct. 16, 2015, p. 2,
http://www.courts.ca.gov/documents/ws101215.pdf [Morales "presents the following issue:
Can excess custody credits be used to reduce or eliminate the one-year parole period
required by Penal Code section 1170.18, subdivision (d), upon resentencing under
Proposition 47?].) The Supreme Court has granted review in two cases decided by this
court that involve the same issue: People v. McCoy, no. S229296, review granted Oct. 14,
2015; and People v. Hickman, no. S227964, review granted Aug. 26, 2015.)
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ordinary meaning." [Citation.] The statutory language must also be construed in the
context of the statute as a whole and the overall statutory scheme [in light of the electorate's
intent]. When the language is ambiguous, "we refer to other indicia of the voters' intent,
particularly the analyses and arguments contained in the official ballot pamphlet."
[Citation.]' [Citation.]" (Id., at pp. 900-901.)
The language of section 1170.18, subdivision (d) is unambiguous. It provides, "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 . . . releases the person from parole." The phrase "shall be given credit for time
served and shall be subject to parole for one year" indicates that, irrespective of the amount
of credit for time served on the felony offense before it was reduced to a misdemeanor, the
petitioner shall be subject to parole for one year. Otherwise, the phrase would read, "shall
be given credit for time served and shall be subject to parole for one year unless credit for
time served reduces the one-year parole period." Instead, the "unless" clause states, "unless
the court, in its discretion . . . releases the person from parole." The statutory language
makes clear that the only exception to the one-year parole requirement is if the court
releases the person from that requirement. " '[T]he existence of specific exceptions does not
imply that others exist. The proper rule of statutory construction is that the statement of
limited exceptions excludes others, and therefore the judiciary has no power to add
additional exceptions; the enumeration of specific exceptions precludes implying others.'
[Citation.]" (In re James H. (2007) 154 Cal.App.4th 1078, 1083-1084; see also Building
Profit Corp. v. Mortgage & Realty Trust (1995) 36 Cal.App.4th 683, 689 [" 'When a statute
contains an exception to a general rule laid down therein, that exception is strictly construed
[citation] [and] [o]ther exceptions are necessarily excluded' "].)
If the language of section 1170.18, subdivision (d) were ambiguous, the ambiguity
would be cured by the Legislative Analyst's comments in the official ballot pamphlet. The
Legislative Analyst informed the voters: "Offenders who are resentenced would be required
to be on state parole for one year, unless the judge chooses to remove that requirement."
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Prop. 47, Analysis by Legislative
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Analyst, p. 36.) Any voter who read this statement would have assumed that a one-year
period of parole is mandatory unless the judge reduces or eliminates it. "The Legislative
Analyst's comments, like other materials presented to the voters, 'may be helpful but are not
conclusive in determining the probable meaning of initiative language.' [Citation.] Thus,
when other statements in the election materials contradict the Legislative Analyst's
comments we do not automatically assume that the latter accurately reflects the voters'
understanding. [Citation.]" (San Francisco Taxpayers Assn. v. Bd. of Supervisors (1992) 2
Cal.4th 571, 580.) Nothing in the election materials for Proposition 47 contradicts the
Legislative Analyst's conclusion that a person resentenced to a misdemeanor "would be
required to be on state parole for one year." This is the only statement in the election
materials concerning the one-year misdemeanor parole period. (See People v. Superior
Court (Henkel) (2002) 98 Cal.App.4th 78, 82 [Legislative Analyst's comment "eliminates
doubt" as to correct interpretation of ballot proposition].)
Appellant contends that, against the one-year period of misdemeanor parole, he is
also entitled to credit for his prior period on PRCS. For the reasons explained above, he is
not entitled to this credit. Furthermore, it would be absurd to give appellant credit for his
prior period on PRCS because he repeatedly violated the terms and conditions of PRCS. In
the petition to revoke PRCS, the probation officer noted that appellant "is before the Court
for his 5th violation [of PRCS] since his release from state prison."
Disposition
The order recalling appellant's felony sentence, resentencing him to misdemeanors,
and placing him on misdemeanor parole for one year is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.