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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifie d 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respo ndent,

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 Code 1 section 1170, subdivision (h)(5)(B), does not

e ntitl e a defendant t o 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 j ail followed by a period of mandatory supervision is not

ent itled to have his fe lony convictions reduced to misdemeanors
under section 17 , subdivision (b).

1 All fur ther references are to the Penal Code unless otherwise indicated.2 We affirm the trial court’s order den ying 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 sec tion 1170, subdivisi on (h)(5)(B): two and a half years in county jail and one and a half years o f mandatory supervision. Imprisonment in the county jail pursuant to section 1170, subd ivision (h)

, makes the offenses felonies. (§ 17, subd. (a).) After Tay lor served his sente nce, 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 pa rt: “ 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 cou nty jail, it is a mi sdemeanor 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 or3

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 secti on 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 elimi nate the requirement that the court grant probation “without the imposition of a sentence.” ( A ssem. Bill 1941 , Stats. 2018, ch. 18 § 1.) Now the court can red uce a felony to a misdemeanor when the court grants probation even if a sentence was imposed.
T aylor claims that ma ndatory 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, T aylor cannot e scape 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 obtai n relief even if mandatory supervisio n 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 su pervision is a hybri d 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 subdivi sion was
amended to change the term to “mandatory supervision.” (Stats.

201 2 , 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 eq uivalent of probatio n. Taylor’s reliance on People v. Borynack (2015) 238 Cal.App.4th 958 (

Borynack ) is misplaced. There, t he defendant pled guilty to multiple counts of possession of a destructive device
in violation of section 18715. The trial court s entenced 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 pursuan t to section 1170, s ubdivision (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 tha t section 18780

uneq uivocally barred the grant of probation and the suspension of sentence. (

Id . at p. 9 64.) Borynack

, supra , 238 Cal.App.4th 958, does not concern
section 17

, subdivision (b). The court in Borynack was not required to state that manda tory supervision mea ns 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 ex tent Taylor
relies on Borynack

, for the proposition that mandatory5

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 wa s 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 super vision pursuant to s ubparagraph (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 au thorizes the court t o 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

, subdivi sion (b )

, i s affirme d. 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 , fo r Defendant and Appe llant. 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 Resp ondent.