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Filed 5/4/17 P. v. Jackson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRE DUVAL JACKSON,
Defendant and Appellant.
E064707
(Super.Ct.No. RIF1401943)
O P I N I O N
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and
Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Andre Duval Jackson, appeals from an order granting his
Proposition 47 petition (Pen. Code, § 1170.18, subd. (a)) for resentencing.
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court resentenced him, it imposed jail time with full credit for time served and one year
of postrelease community supervision (PRCS).
Defendant contends the court lacked authority to impose PRCS, and even if it
could impose some sort of postrelease supervision, he was entitled to apply his excess
custody credits against that period. The People acknowledge the court should not have
imposed PRCS, but assert it had authority to impose one year of parole, and they urge us
to remand for the court to decide whether to impose parole or release defendant. They
also correctly note that the California Supreme Court, in People v. Morales (2016) 63
Cal.4th 399, has decided the custody credits issue against defendant.
We reverse the court’s order to the extent it imposed one year of PRCS. On
remand, the court shall exercise its discretion to either impose one year of parole or
release defendant. Defendant’s excess custody credits may not be applied against any
period of parole.

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All further statutory references are to the Penal Code unless otherwise indicated.
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II. BACKGROUND
In April 2014, defendant pled guilty to one count of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), admitted one prior strike
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and admitted one prison prior (Pen. Code,
§ 667.5, subd. (b)). The court sentenced defendant to a total of five years in state prison.
In December 2014, defendant filed a petition for resentencing under Proposition
47. The People’s response requested a hearing to determine whether resentencing
defendant posed “an unreasonable risk of danger to public safety.” (§ 1170.18, subd.
(b).) The People’s briefing requested that the court impose one year of parole on
defendant, if it granted his petition. In the alternative, the People argued the court should
place defendant on PRCS.
At the hearing on the matter, the court did not “find dangerousness” and reduced
defendant’s conviction to a misdemeanor. It vacated his previous sentence and imposed a
jail term of 364 days, with full credit for time served. The court indicated it was
contemplating one year of PRCS and asked whether defense counsel agreed with that.
The following colloquy occurred:
“[DEFENSE COUNSEL]: The Court is entitled to order that, however, our
interpretation is that the credits that he has earned have to be applied against that period
of supervision, and I think it’s technically by parole under the statute.
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“THE COURT: [The People], it seems to indicate that it’s only parole if it’s a
serious felony, a violent felony, a 25 to life felony, a high risk sex offender, or any crime
that requires treatment in the state hospital, which he doesn’t qualify for. So since it
doesn’t go there, I think it’s your position that it has to be the PCRS [sic]; is that correct?
“[THE PEOPLE]: That’s my understanding.
“THE COURT: So I’ll take that representation. Again, you can clarify whether
it’s probably less intrusive for him to be PCRS [sic] than to be parole. That’s my general
impression. [¶] So I will release him from custody and enter the order, and he’s to do
one year on Post Community Release Supervision [sic].”
The minute order of these proceedings stated defendant was to be released and
was to report to parole upon release. The amended abstract of judgment ordered
defendant “to report to local parole or probation office” on page one, in section four. On
page two, in section 17, the amended abstract indicated defendant was to be remanded to
the custody of the sheriff forthwith and then released.
III. DISCUSSION
The voters enacted section 1170.18 as part of Proposition 47. (People v. Morales,
supra, 63 Cal.4th at p. 404.) Section 1170.18 “concern[s] persons currently serving a
sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It
permits such a person to ‘petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing in
accordance with’ specified sections that ‘have been amended or added by this act.’
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(§ 1170.18, subd. (a).)” (People v. Morales, supra, at p. 404.) “With the passage of
Proposition 47 . . . , violations of Health and Safety Code section 11377 became
misdemeanors.” (People v. Lynall (2015) 233 Cal.App.4th 1102, 1105.) The trial court
thus reduced defendant’s conviction to a misdemeanor and resentenced him in
accordance with subdivision (b) of section 1170.18.
Subdivision (d) of section 1170.18 provides, in part: “A person who is
resentenced . . . 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.” Notwithstanding the People’s position below, the People now
acknowledge that the resentencing provisions of Proposition 47 do not allow for the court
to impose PRCS as opposed to parole. Indeed, “the most natural meaning of the words
‘subject to parole’ is that the person is subject to parole rather than some other form of
supervision such as postrelease community supervision under the Postrelease Community
Supervision Act of 2011 (§ 3450 et seq.).” (People v. Morales, supra, 63 Cal.4th at p.
407.)
The People contend we should remand for the court to determine, “in its
discretion” (§ 1170.18, subd. (d)), whether to impose parole or release defendant from it.
They assert the record is ambiguous, given (1) the exchange between the court and
counsel, in which the People led the court to believe PRCS was appropriate if it did not
order parole, and (2) the indications in the abstract of judgment that defendant both report
to parole and be released. Defendant’s opening brief argues the court lacked authority to
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impose PRCS, but he has not filed a reply brief responding to the People’s argument for
remand on the parole issue.
We agree with the People that a limited remand for the court to choose between
one year of parole or release is appropriate. The record is not entirely clear that the court
would choose one year of parole, such that we should simply modify the sentence on
appeal. Defendant’s contention that his excess custody credits should be credited against
any parole period has been squarely rejected by our Supreme Court. (People v. Morales,
supra, 63 Cal.4th at p. 403 [“We conclude 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.”].)
Accordingly, if the court imposes parole on remand, defendant’s excess custody credits
shall not be credited against that parole period.
IV. DISPOSITION
The order granting defendant’s Proposition 47 petition for resentencing is affirmed
and the order placing defendant on PRCS is reversed. On remand, the court shall
exercise its discretion, consistent with section 1170.18, subdivision (d), to either (1)
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impose one year of parole on defendant, or (2) release defendant from parole. If the court
imposes parole on remand, defendant’s excess custody credits shall not reduce the parole
period.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MILLER
J.