Filed 7/21/17 P. v. Hernandez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LUCIO HERNANDEZ, JR.,

Defendant and Appellant.

F072502

(Super. Ct. No. MCR052251)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Defendant Lucio Hernandez, Jr., was convicted by no contest plea of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a conviction the trial court later reduced to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18). On appeal, he contends (1) he is no longer subject to postrelease community supervision (PRCS), (2) he is no longer subject to the registration requirements of Health and Safety Code section 11590, and (3) his excess custody credits should be applied to reduce his fines and fees pursuant to section 2900.5. The People concede these points, and we agree.
PROCEDURAL SUMMARY
On April 11, 2012, defendant pled no contest to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted having suffered a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On December 21, 2012, the trial court sentenced defendant to two years eight months in prison, ordered him to register pursuant to Health and Safety Code section 11590, and ordered him to pay various fines and fees, including a $240 restitution fine (§ 1202.4) and a suspended $240 parole revocation fine (§ 1202.45).
On May 19, 2014, defendant was released and placed on three years of PRCS. On September 23, 2015, defendant petitioned the trial court to reduce his felony conviction for possession of methamphetamine to a misdemeanor pursuant to Proposition 47. According to the probation officer’s report, as of September 10, 2015, defendant had served 666 days in custody, which exceeded the maximum punishment for a misdemeanor conviction. The officer recommended that the Proposition 47 petition be granted, the petition for revocation of PRCS dismissed, the registration pursuant to Health and Safety Code section 11590 stricken, the restitution fine reduced to $120, and the 302 days in excess of the maximum punishment attributed to his fines at a rate of $30 per day. The trial court granted the Proposition 47 petition and reduced the restitution fines to $120 pursuant to section 1202.4, subdivision (b), but denied defendant’s request to terminate PRCS, failed to strike the registration requirement, and failed to apply the excess custody credits to reduce the fines and fees.
DISCUSSION
The Postrelease Community Supervision Act of 2011 provides that “all persons [with some exceptions] released from prison on and after October 1, 2011, or … after serving a prison term for a felony shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision provided by the probation department of the county to which the person is being released ….” (§ 3451, subd. (a).) On May 19, 2014, defendant was released on three years of PRCS pursuant to this statute after serving 666 days in custody for his felony possession conviction.
A few months later, on November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.) “Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be ‘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.’ (§ 1170.18, subd. (b).)” (People v. Rivera, supra, at p. 1092, italics added.) On September 23, 2015, the trial court reduced defendant’s felony possession conviction to a misdemeanor pursuant to section 1170.18.
I. PRCS
Although the lengthy appellate process may have rendered this issue moot, we nevertheless agree with the parties that the trial court should have granted defendant’s request for termination of PRCS and should have placed him on parole for one year. (§ 1170.18, subd. (d) [“A person who is resentenced pursuant to subdivision (b) 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.”]; People v. Morales (2016) 63 Cal.4th 399, 407 [parole rather than PRCS is the proper form of supervision when a felony is reduced to a misdemeanor under section 1170.18].)
II. Registration Pursuant to Health and Safety Code Section 11590
We also agree with the parties that the trial court should have stricken the registration requirement of Health and Safety Code section 11590, which by its own terms “does not apply to a conviction of a misdemeanor under Section 11357, 11360, or 11377.” (Health & Saf. Code, § 11590, subd. (c).)
III. Excess Custody Credits
Lastly, we agree with the parties that defendant’s excess custody credits should have been applied to reduce his fines. (§ 2900.5, subd. (a); People v. Morris (2015) 242 Cal.App.4th 94, 100.) According to the probation officer’s report, defendant’s excess custody credits satisfied all of his fines.

DISPOSITION
The sentence is vacated and the matter remanded to the trial court for resentencing with instructions to (1) terminate postrelease community supervision if it has not yet been terminated; (2) strike the registration requirement of Health and Safety Code section 11590; and (3) consider whether defendant’s excess custody credits satisfy his fines and fees and, if so, order them satisfied. In all other respects, the judgment is affirmed.