Filed 12/ 15 / 15 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAVID RICHARD DIAZ,
Defendant and Appellant. 2d Crim. No. B264244 (Super. Ct. No. 2010001002) (Ventura County)

David Richard Diaz appeals from an order r ecalling his felony sentence, resentencing him to a misdemeanor, and placing him on misdemeanor paro le for one year. The order was entered pursuant to Penal Code section 1170.18, enacted by Proposition 47. 1 Appellant
contends that he is entitled to have the one

- year period of misdemeanor parole reduced by
his "excess custody credits" and prior periods of parole on the felony commitment offense.
We affirm. Factual and Procedural Background In April 2010 appellant pleaded guilty to felony receiving stolen property. (§ 496, subd. (a).) He was sentenced to prison for two years and given credit for time served of 173 days. He was informed that, after his release from prison, he could be placed on parole for up to three years. In December 2010 appellant was released on parole. In March 2011 he absconded from parole supervision and was returned to custo dy for one year. In July 2012 he

1 All statutory references are to the Penal Code.2

absconded a second time and was returned to custody for 100 days. In September 2012 he absconded a third time and remained at large until his arrest in Feb ruary 2015. In March 2015 appellant filed an application to have his felony convi ction designated a misdemeanor pursuant to subdivision (f) of section 1170.18. Appellant alleged that he had completed his felony sentence. The prosecutor contended that appellant was still serving his felony sentence but was eligible for resentencing to a misdemeanor pursuant to subdivisions (a) and (b) of section
1170.18. The prosecutor requested that appellant be resentenced to 364 days on the misdemeanor, that he be given credit for time served of 364 days , and that he be placed on misdemeanor parole for one year pursuant to subdivision (d) of section 1170.18. Defense
counsel protested that the court could not impose a period of misdemeanor parole because appellant had "completed the whole sentence." Counsel asserted that his clie nt was entitled

to 364 days of actual custody credit and 364 days of conduct credit. The trial court resentenced appellant to a misdemeanor and placed him on parole for one year. The trial court stated, "The fact that he has absconded from parole for two and a half years makes that an appropriate use of discretion." Proposition 47

" On November 4, 2014, the voters enacted Proposition 47, ' the Safe Neighborhoods
and S chools Act' . . . , which went into effect the next day. (Cal. Const., art. II, § 10, sub d. (a).) " ( People v. Rivera (2015) 233 Cal .App. 4th 1085, 1089 .) Before the passage of Propositio n 47, receiving stolen property was punishable either as a felony or a misdemeanor. Proposition 47 amended section 496, subdivision (a) to make the offense

p unishable only as a misdemeanor if the value of the stolen property does not exceed $950 and the defendant has not previously been convicted of specified serious felonies. Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section
1170.18 permits persons who are "currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . [to] petition for a recall of sentence . . . [and] to request resen tencin g" under Proposition 47. If the petitioner satisfies the criteria in subdivision (a), subdivision (b) provides that "the3

petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in its discreti on, determines that resentencing the petitioner would pose an unreasonable risk of danger to p ublic safety." Subdivision (d) provides, "A person who is resentenced . . . shall be given credit for time served and shall be subject to parole for one year fol lowing completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole."

The One

- Year Period of Misdemeanor Parole Is Not Reduced By Excess Custody Credits or Prior Period s of Parol e Appella nt contends that, against the one

- year period of misdemeanor parole, he is

e ntitled to credit for " excess custody credits
, " the number of days by which his time served in prison exceed s his misdemeanor sentence

. 2 Such credits are referred to as " Sosa credits."
In In re Sosa (1980) 102 Cal.App.3d 1002, t he court held that presentence custody credits in
excess of a prisoner's term of imprisonment reduce the prisoner's time on parole. "[O]ur 'task is simply to interpret and apply the initiative's language so as to effectuate the electorate's intent.' [Citation.]" ( Robert L. v. Superior Court (2003) 30
Cal

. 4th 894, 901.) " '[W] e apply the same principles that govern statutory construction. [Citation.] T hus, " we turn first to the language of th e statute, giving the words their ordinary meaning." [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]

. W hen the language is ambiguou s, " we refer to other indicia of the voters' intent, particularly the analyses and arguments contained i n the official ballot pamphlet." [Citation.]' [Citation.]" ( Id ., at pp. 900

- 901.)

2 This issue is before the C alifornia Supreme Court in People v. Morales
, no. S228030 , review granted Aug. 26, 2015. (See Supreme Ct. News Release dated Oct. 16, 2015, p. 2, http://www.courts.ca.gov/documents/ws101215.pdf [ Morales "presents the following issue: Can excess custody cr edits be used to reduce or eliminate the one

- year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under P roposition 47?].) The Supreme C ourt has granted review in two cases decided by this court that involve the sa me issue: People v. McCoy , no . S229296, review granted Oct. 14, 2015; and People v. Hickman
, no. S227964, review granted Aug. 26, 2015.)4

The language of section 1170.18, subdivision (d) is unambiguous. It provides, "A person who is resentenced . . . 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 . . . releases the person from parole." Th e phrase "shall be given credit for time served and shall be subject to parole for one year" indicates that, irrespective of the amount of credit for time served on the felony offense before it was reduced to a misdemeanor, the petitioner shall be subject to parole for one year. Otherwise, the phrase would read, "shall be given credit for time served and shall be subject to parole for one year unless credit for
time served reduces the one

- year parole period. " Instead, the "unless" clause states, "unless

t he court, in its discretion . . . releases the person from parole." The statutory lan guage makes clear that the only exception to the one

- year parole requirement is if the court releases the person from that requirement. " ' [T]he existence of specific ex ceptions does not imply that others exist. The proper rule of statutory construction is that the statement of limited exceptions excludes others, and therefore the judiciary has no power to add additional exceptions; the enumeration of specific except ions precludes implying others.' [Citation.]" ( In re James H. (2007) 154 Cal .App. 4th 1078, 1083

- 10 84 ; see also Building Profit Corp. v. Mortgage & Realty Trust (1995) 36 Cal.App. 4th 683, 689 [" ' When a statute contains an exception to a general rule laid dow n therein, that exception is strictly construed [citation] [and] [o]ther excep tions are necessarily excluded' "].)

If the language of section 1170.18, subdivision (d) were ambiguous, the ambiguity would be cured by the Legislative Analyst's comments in th e official ballot pamphlet. The Legislative Analyst informed the voters: "Offenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), Prop. 47, A nalysis by Legislative Analyst, p. 36.) Any voter who read this statement would have assume d that a

one

- year period of parole is ma ndatory unless the judge reduces or eliminate s it

. " The Legislative Analyst's comments, like other ma te rials presented to the voters, ' may be helpful but are not conclusive in determining the probable meaning of initiative language.' [Citation.] Thus, when other statements in the election materials contradict the Legislative5

Analyst's comments we do not automatically assume that the latter accurately reflects the voters' understanding. [Citation.]" ( San Francisco Taxpaye rs Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 580 .) N othing in the election materials for Proposition 47 contradicts the Leg is lative Analyst's conclusion that a person resentenced to a misdemeanor "would be required to be on state parole for one year." This is the only statement in the election materials concerning the one

- year misdemeanor parole period. (See People v. Superi or Court (Henkel) (2002) 98 Cal.App.4th 78, 82 [Legislative Analyst's comment "eliminates doubt" as to correct interpretation of ballot proposition].) Appellant contends that, against the one

- year period of misdemeanor parole, he is
entitled to credit for prior periods of parole on the felony commitment offense. For the reasons explained above
, he is also not entitled to this credit. Furthermore, it would be absurd to give appellant credit for prior parole periods when he repeatedly violated parole. Disp osition The order recalling appellant's felony sentence, resentencing him to a misdemeanor, and placing him on misdemeanor parole for one year is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.6 Re becca Riley, Judge
Superior Court County of Ventura

______________________________

Mark Feeser , under appointment by the Court of Appeal, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.