Filed 4/20/23 P. v. Taylor 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent,

v.

GARRETT JOHN TAYLOR,

 Defendant and Appellant.

2d Crim. No. B319887

(Super. Ct. No. F485023)

(San Luis Obispo County)

Here we hold that a period of mandatory supervision 

under Penal Code1 section 1170, subdivision (h)(5)(B), does not 

entitle a defendant to have his felony convictions reduced to 

misdemeanors under section 17, subdivision (b). We therefore 

conclude that Garrett John Taylor, who was sentenced to a term 

in county jail followed by a period of mandatory supervision is not 

entitled to have his felony convictions reduced to misdemeanors 

under section 17, subdivision (b). 

1 All further references are to the Penal Code unless 

otherwise indicated.
2

We affirm the trial court’s order denying Taylor’s petition 

under section 17, subdivision (b).

FACTS

Taylor was convicted by a jury of vehicular manslaughter

(§ 191.5, subd. (b)) and unlawful driving or taking of a vehicle.

(Veh. Code § 10851, subd. (a).) Both offenses are “wobblers,”

punishable as a felony or a misdemeanor. 

The trial court denied probation and sentenced Taylor to a 

split sentence under section 1170, subdivision (h)(5)(B): two and a 

half years in county jail and one and a half years of mandatory 

supervision. Imprisonment in the county jail pursuant to section 

1170, subdivision (h), makes the offenses felonies. (§ 17, subd. 

(a).)

After Taylor served his sentence, he moved to have his 

felony convictions reduced to misdemeanors under section 17, 

subdivision (b). The trial court denied the motion because it had 

no statutory authority to reduce his sentence.

DISCUSSION

Section 17, subdivision (b), provides in part: “When a crime 

is punishable, in the discretion of the court, either by 

imprisonment in the state prison or imprisonment in a county jail 

under the provisions of subdivision (h) of Section 1170, or by fine 

or imprisonment in the county jail, it is a misdemeanor for all 

purposes under the following circumstances: ¶ (1) After a 

judgment imposing a punishment other than imprisonment in 

the state prison or imprisonment in a county jail under the 

provisions of subdivision (h) of Section 1170 [¶. . . ¶] ¶ (3) When 

the court grants probation to a defendant and at the time of 

granting probation, or on application of the defendant or 
3

probation officer thereafter, the court declares the offense to be a 

misdemeanor.”

Under the plain and clear language of section 17, 

subdivision (b)(1), Taylor is not entitled to have his convictions 

reduced to misdemeanors because he was sentenced to county jail 

under subdivision (h) of section 1170. Section 17, subdivision (b),

makes no exception for a split sentence under section 1170,

subdivision (h)(5)(B). Section 17, subdivision (b)(3), is not 

applicable because Taylor was not granted probation.

Taylor argues that effective January 1, 2019, the 

Legislature amended section 17, subdivision (b)(3), to eliminate 

the requirement that the court grant probation “without the 

imposition of a sentence.” (Assem. Bill 1941, Stats. 2018, ch. 18 

§ 1.) Now the court can reduce a felony to a misdemeanor when

the court grants probation even if a sentence was imposed. 

Taylor claims that mandatory supervision is the functional 

equivalent of probation. Thus, Taylor believes he is eligible for 

relief under section 17, subdivision (b)(3). Taylor’s argument 

suffers from at least two defects, either one of which is fatal to his 

cause.

First, Taylor cannot escape that he was sentenced under 

section 1170, subdivision (h). Section 17, subdivision (b)(1),

categorically denies relief to anyone who was sentenced under 

section 1170, subdivision (h). There are no exceptions. Thus, he 

could not obtain relief even if mandatory supervision were the 

functional equivalent of probation.

Second, mandatory supervision is not the functional 

equivalent of probation. “A split sentence of local jail time 

followed by a period of mandatory supervision is a hybrid 

sentence, distinct from both probation and parole.” 
4

(People v. Bryant (2021) 11 Cal.5th 976, 985 (Bryant).) In fact, an 

earlier version of section 1170, used the term “mandatory 

probation.” (Stats. 2011, ch. 39, § 27.) The subdivision was 

amended to change the term to “mandatory supervision.” (Stats. 

2012, ch. 43, §§ 27, 14; see Bryant, supra, 11 Cal.5th at p. 985.) 

The Legislature would not have bothered to amend the statute if 

it viewed mandatory supervision as the functional equivalent of 

probation.

Taylor’s reliance on People v. Borynack (2015) 238 

Cal.App.4th 958 (Borynack) is misplaced. There, the defendant 

pled guilty to multiple counts of possession of a destructive device 

in violation of section 18715. The trial court sentenced him to 

two years on one of the counts, and concurrent two-year terms on 

the remaining counts. After applying custody credits, the court 

suspended execution of the entire remaining sentence and placed 

the defendant on mandatory supervision pursuant to section 

1170, subdivision (h)(5). The People objected on the ground that 

section 18780 expressly prohibits the suspension of a sentence or 

a grant of probation for persons convicted under section 18715. 

The Court of Appeal argued with the People that section 18780 

unequivocally barred the grant of probation and the suspension 

of sentence. (Id. at p. 964.) 

Borynack, supra, 238 Cal.App.4th 958, does not concern

section 17, subdivision (b). The court in Borynack was not 

required to state that mandatory supervision means placing the 

defendant on probation. It could have stopped when it said that 

mandatory supervision means suspending the execution of the 

defendant’s sentence, also barred by section 18780. Thus, the

statement on which Taylor relies is dicta. To the extent Taylor 

relies on Borynack, for the proposition that mandatory 
5

supervision is the functional equivalent of probation, our 

Supreme Court has stated otherwise in Bryant, supra, 11 Cal.5th 

976. Finally, Taylor cannot escape that he was imprisoned in the 

county jail under section 1170, subdivision (h).

Taylor’s reliance on section 1203.3, subdivision (a), is also 

misplaced. That section provides in part: “The court . . . has the 

authority at any time during the term of mandatory supervision 

pursuant to subparagraph (B) of paragraph (5) of subdivision (h) 

of Section 1170 to revoke, modify, or change the conditions of the 

court’s order suspending the execution of the concluding portion 

of the supervised person’s term.”

Section 1203.3 authorizes the court to revoke, modify, or 

change the conditions of mandatory supervision. It does not 

authorize the court to reduce a hybrid sentence from a felony to a 

misdemeanor.

DISPOSITION

The order denying Taylor’s petition under section 17, 

subdivision (b), is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

BALTODANO, J.
Jesse J. Marino, Judge

Superior Court County of San Luis Obispo

______________________________

Sanger Swysen & Dunkle and Stephen K. Dunkle, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Wyatt E. Bloomfield and Christopher 

G. Sanchez, Deputy Attorneys General, for Plaintiff and 

Respondent.