Filed 4/7/16 P. v. Stine CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TYE STINE , Defendant and Appellant. 2d Crim. No. B264877 (Super. Ct. No. 2012002600) (Ventura County)

Tye Stine appeals an order recalling his felony sentence, resentencing him to a misdemeanor sentence, and placing him on supervised misdemeanor parole for one year, pursuant to Penal Code section 1170.18 , subdivisions (a)

- (d)

. 1 We affirm.

FACTUAL AND PROCEDURAL HISTORY On March 22, 2012, Stine pleaded guilty to possession of a controlled substance, methamphetamine. (Health & Saf. Code, § 11377, subd. (a) .) He also admitted suffering a 2007 serious felony strike conviction for burglary, and serving a prior prison term. (§§ 667, subd s . (b)

- (i), 1170.12, subds. (a)

- (d), 667.5, subd. (b).) The trial court dismissed the felony strike conviction pursuant to section 1385 , subdivision (a) , and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. It then suspended

1 All further statutory references are to the Penal Code unless stated otherwise.2

imposition of sentence and placed Stine on 36 months formal probation with terms and conditions, including 270 days of confinement in county jail

.

On September 13, 2012, Stine admitted violating the terms of his probation by using controlled substances, failing to drug

- test, and failing to report to his probation officer. The trial court revoked and then reinstated probation with the
condition that Stine serve an additional 90 days confinement in county jail.

On January 31, 2013, Stine admitted violating the terms of his probation again by using controlled substances and failing to drug

- test, among other violations.
The trial court revoked S tine's probation and sentenced him to a prison term of two years four months, including one year for the prior prison term finding. The court imposed a $300 restitution fine, a $300 parole revocation restitution fine (suspended ) , a $40 court security asse ssment, and a $30 criminal conviction assessment, and awarded Stine 272 days of custody credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)

On November 12, 2013, the California Department of Corrections released Stine from pri son into the postrelease community supervision program ("PRCS") for a period not to exceed three years. (§ 3450 et seq. ["Postrelease Community Supervision Act of 2011"].) D uring the ensuing 18 months, Stine frequently violated the terms of his program.

O n March 9, 2015, Stine filed a petition to have his sentence recalled and to have his felony conviction reclassified as a misdemeanor, pursuant to section 1170.18. Stine asserted that he had completed his sentence and was not subject to any
misdemeano r parole period according to section 1170.18, subdivision (f). Alternatively, he contended that he was entitled to have any excess custody credits applied against his term of parole as held by In re Sosa (1980) 102 Cal.App.3d 1002, 1005

- 1006. Following a hearing, the trial court redesignated Stine's conviction as a misdemeanor and ordered him to serve one year in county jail with credit for time served. The court3

also placed Stine on one

- year supervised misdemeanor parole effective March 9, 2015,
as auth orized by section 1170.18, subdivision (d).

Stine appeals and contends that: 1) the trial court erred by not resentencing him pursuant to section 1170.18, subdivision (f), and 2) he is entitled to credit against his one

- year misdemeanor parole term for time served in custody and on
PRCS , pursuant to section 2900.5, subdivision (c) and In re Sosa , supra , 102 Cal.App.3d 1002, 1005

- 1006

. DISCUSSION

Stine argues that the trial court erred when it treated his petition for resentencing as one filed pursuant to section 1170.18, subdivision (a), rather than subdivision (f), because he had completed his sentence when he was released from prison on November 12 , 2013. In other words, Stine asserts that PRCS is not part of his former felony "sentence" for purpose s of resentencing pursuant to section 1170.18.

On November 4, 2014, the voters enacted Proposition 47, The Safe Neighborhoods and Schools Act, which became effective the following day. ( People v.
Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 added section 1170.18 to the Penal Code. Subdivision (a) of section 1170.18 permits a person who is " currently serving a sentence for a conviction .

. . of a felony or felonies who would have been guilty of a misdemea nor under [Proposition 47] .

. . [to] petiti on for a recall of sentence

. . . [and] to request resentencing." (Italics added.) If the person satisfies the criteria in subdivision (a), subdivision (b) provides that "the petitioner's felony sentence shall be recalled and the petition er resen t enced to a misdemeanor .

. . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." Subdivision (d) provides, "A person who is resentenced .

. . shall be given credit f

or 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." (Italics added.)4 In prior decisions, we have considered and rejected contentions similar to those raised here. ( People v. McCoy (2015) 239 Cal.App.4th 4 31 , review granted Oct. 14, 2015, No. S229296 ; People v. Hickman (2015) 237 Cal.App.4th 984
, review granted Aug

. 26, 2015, No. S227964.) We see no reason to depart from the reasoning and conclusions set forth in these opinions, although we recognize there is a contrary view. ( People v. Morales (2015) 238 Cal.App.4th 42, review granted Aug

. 26, 2015, No.
S228030

. )
Stine was properly resentenced pu rsuant to section 1170.18, subdivisions (a) and (b) because he had not completed PRCS and
, therefore, was "currently serving a sentence" for a qualifying felony conv iction. (§ 1170.18, subd. (a) [ "A person currently serving a sentence" for a conviction fo r a qualifying felony may petition for recall of sentence and resentencing].) A period of parole or PRCS "constitutes part of the punishment for the underlying crime." ( People v. Nuckles (2013) 56 Cal.4th 601, 608.) Proposition 47 did not abrogate the l ong

- standing statutory mandate that a period of parole or PRCS is, with narrow exceptions, a mandatory feature of every sentence resulting in imprisonment in the state prison. ( Nuckles
, at p. 609.)

The trial court also did not err by denying application of Stine's excess credits against his one

- year misdemeanor parole period

. In re Sosa , supra , 102 Cal.App.3d 1002, 1005

- 1006, generally h o ld s that presentence custody credits in excess of a prisoner's term of imprisonment reduce his time on parole. Here, Stine has more

t han one year of excess credits; application of Sosa would result in no period of supervised parole. Section 1170.18, subdivision (d) expressly states
, however, that supervised parole shall be imposed unless the court in its discretion dete rmines otherwise. Thus, Stine is entitled to credit against his new misdemeanor sentence, but
not his one

- year period of misdemeanor parole. ( People v. Espinoza (2014) 226 Cal.App.4th 635, 638

- 639 [PRCS is not a "term of imprisonment" within the meaning of section 2900.5, subdivision (c) and Sosa ]; Couzens et al.
, Sentencing California Crimes (The Rutter Group 2015) § 25:6, p . 25

- 62 [Proposition 47 provides that the trial5

court on resentencing may order parole supervision " in addition to any resentence im posed by the court, and without consideration of any [custody] credit that the

p etitioner may have earned "].)

The resentencing order is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.6 Donald D. Coleman, Ju dge
Superior Court County of Ventura

______________________________

Richard Lennon , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.