Filed 5/2/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B282787
(Super. Ct. No. 2014035319)
Plaintiff and Respondent, (Ventura County)
v.
JESUS PEDRO GARCIA,
Defendant and Appellant.
Jesus Pedro Garcia appeals a judgment the trial court
imposed after revoking his postrelease community supervision
(PRCS). (Pen. Code, §§ 3451, 3455.)1 The court imposed a 180-
day period of confinement for Garcia’s PRCS violation to run
consecutively to a four-year prison term in another case. We
conclude, among other things, that the court lacks authority to
run a period of confinement for a PRCS violation consecutively to
a sentence in another criminal case. The portion of the judgment
imposing a consecutive sentence is stricken; as so modified, we
affirm.
All statutory references are to the Penal Code unless
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otherwise stated.
FACTS
In January 2015, Garcia pled guilty to unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)), a felony, and
evading an officer (id., § 2800.2, subd. (a)), a felony. The trial
court suspended imposition of sentence and placed him on
probation for 36 months.
Garcia violated his probation conditions. The trial court
revoked probation and sentenced Garcia to serve two years in
state prison.
On March 30, 2016, Garcia was released from prison and
placed on PRCS.
On April 20, 2017, the Ventura County Probation Agency
petitioned to revoke Garcia’s PRCS, alleging, among other things,
that he had “absconded from supervision.” It also noted that on
April 18, 2017, Garcia was sentenced to a four-year prison term
for carjacking in criminal case No. 2016017314.
On April 25, 2017, the trial court found Garcia violated his
PRCS conditions. It ordered him to serve 180 days in the county
jail to run consecutively to a four-year prison sentence for
Garcia’s carjacking conviction in case No. 2016017314.
DISCUSSION
The Consecutive Sentence
Garcia, the People and we agree that the trial court lacked
authority to impose Garcia’s PRCS revocation confinement
consecutive to a determinate sentence in another criminal case.
“PRCS was created by the Legislature in 2011 as an
alternative to parole for non-serious, nonviolent felonies.” (People
v. Gutierrez (2016) 245 Cal.App.4th 393, 399.) “A felon who
qualifies for PRCS may be subject to supervision for up to three
years after his or her release from prison. (§ 3451, subd. (a).)”
(Ibid.) The supervised person “may be subject to various
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sanctions for violating the conditions of his or her PRCS,
including incarceration in the county jail, but may not be
returned to state prison for PRCS violations.” (Ibid.) The
“confinement” period for violating PRCS “shall not exceed a
period of 180 days in a county jail . . . .” (§ 3455, subd. (d).)
California courts have concluded that PRCS “is similar . . .
to parole.” (People v. Gutierrez, supra, 245 Cal.App.4th at p. 399.)
PRCS and parole supervision have different procedures to prove
violations. (Id. at p. 400.) But once violations have been
established, the statutes governing PRCS and parole supervision
share the same maximum period for custodial confinement--180
days. (§§ 3000.08, 3451, subd. (d).) In this respect, the
Legislature intended to treat PRCS and parole supervision
violators similarly.
Garcia notes that California law carefully distinguishes
between confinement for parole or PRCS violations on the one
hand, and traditional “sentencing” for criminal convictions on the
other. (People v. Mathews (1980) 102 Cal.App.3d 704, 713.)
These two areas are separate and distinct. (Ibid.; see also People
v. Adrian (1987) 191 Cal.App.3d 868, 881 [“Parole may be
revoked for numerous reasons other than criminal conduct”].)
The trial court lacked authority to impose the consecutive
sentence imposed here. (Mathews, p. 713; see also People v.
Boney (1982) 136 Cal.App.3d 744, 748.)
Section 669 governs concurrent and consecutive sentences.
It provides, in relevant part, “When a person is convicted of two
or more crimes, . . . the second or other subsequent judgment
upon which sentence is ordered to be executed shall direct
whether the terms of imprisonment . . . shall run concurrently or
consecutively.” (§ 669, subd. (a), italics added.)
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Courts interpreting section 669 have concluded that it does
not authorize the trial court to impose a parole revocation
confinement to run consecutively to a determinate sentence.
(People v. Mathews, supra, 102 Cal.App.3d at p. 713; People v.
Espinoza (1979) 99 Cal.App.3d 59, 72-73.) In Mathews, the trial
court, relying on section 669, ordered a “new term to run
consecutive to a parole revocation period.” (Id., at p. 713.) The
Court of Appeal struck the consecutive sentence. It determined
there was no authority to impose such a sentence in combination
with a parole revocation confinement. It noted there is “a
distinction between the expiration of a term of imprisonment as
opposed to . . . confinement on revocation of parole.” (Ibid., second
italics added.) “Logically, when a person has served a
determinate sentence and is reimprisoned upon revocation of
parole, he has not returned to prison for the purpose of serving
the balance of his original term.” (Ibid.) “Rather, [a person] is
reimprisoned for the purpose of serving a maximum of 12 months
for violating his parole.” (Ibid.) Applying Mathews, the
consecutive sentence here is unauthorized.
Mathews was decided well before the realignment
sentencing statutes. The authors of the leading treatise on the
realignment legislation have concluded that Mathews applies to
both post-realignment parole supervision violations and PRCS
violations. (Couzens, Bigelow, Prickett, Sentencing Cal. Crimes
(The Rutter Group 2017) Sentencing After Realignment, §§ 11:65,
p. 11-107, 11:77, p. 11-139.) Citing Mathews, the authors state,
“It is unlikely the court has the ability to impose a term in jail as
a sanction for violation of parole, then impose a new substantive
term consecutive to the parole term.” (Id., § 11:77, at p. 11-139.)
Similarly, “[i]t is unlikely the court has the ability to impose a
term in jail as a sanction for violation of PRCS, then impose a
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new substantive term consecutive to the PRCS term.” (Id.,
§ 11:65, at p. 11-107.) We agree. Some statutory procedures
have changed, but these changes do not relate to the holding in
Mathews. Garcia and the People agree that the underlying
principles in Mathews are still applicable.
Section 3455, subdivision (d) is unambiguous. It does not
contain a consecutive sentencing provision. Mathews was
published decades ago. Had lawmakers intended to make an
exception to the Mathews doctrine, they could have easily done so
with express language in the realignment statutes. “Courts may
not insert words or add provisions to an unambiguous statute.”
(Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1172.)
“‘We may not rewrite the statute to conform to an assumed
intention that does not appear in its language.’” (Id., at p. 1173;
see also Vasquez v. State of California (2008) 45 Cal.4th 243,
253.) The consecutive sentence was unauthorized.
DISPOSITION
The portion of the judgment imposing a consecutive
sentence is stricken; as so modified, the judgment is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Todd W. Howeth, Public Defender, William M. Quest,
Senior Deputy, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Analee J. Brodie, Deputy Attorney General, for
Plaintiff and Respondent.
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