Filed 7/21/15 P. v. Hernandez CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

RAUL HERNANDEZ,

 Defendant and Appellant.

 G051160

 (Super. Ct. Nos. 12CF1489, R-01735)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed 

in part, reversed in part, and remanded with directions.

Christian C. Buckley, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and 

Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
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Raul Hernandez contends that under the voters’ recent enactment of 

Proposition 47, “The Safe Neighborhoods and Schools Act” (codified as pertinent here in 

Penal Code section 1170.18; all further undesignated statutory references are to this 

code), the trial court should have granted his application to designate his felony drug 

possession offense (Health & Saf. Code, § 11377) as a misdemeanor because he had 

completed his two-year felony sentence (see § 1170.18, subd. (f)), rather than reducing 

the conviction to a misdemeanor by recalling his sentence and resentencing him to 

misdemeanor punishment that included a year on parole. (§ 1170.18, subds. (a), (b), (d).) 

As we recently explained in People v. Morales (June 26, 2015, G051142) __ Cal.App. __

(Morales), a person who is still under postrelease community supervision (PRCS, a 

parole analogue under county instead of state supervision; see § 3451) has not completed 

his or her “sentence” within the meaning of Proposition 47. Consequently, because 

Hernandez was still on PRCS at the time of his application, Proposition 47’s recall and 

resentencing procedure applied (§ 1170.18, subds. (a), (b), (d)), rather than the 

redesignation procedure that would have left him exempt from parole (id., subd. (f).) As 

we explained in Morales, however, a defendant resentenced under Proposition 47 is 

entitled to apply excess custody credits, if any, to reduce or eliminate any applicable 

parole period upon resentencing. (Morales, supra.) We therefore affirm in part, reverse 

in part, and remand with directions to the trial court to calculate and apply Hernandez’s 

credits.

I

FACTUAL AND PROCEDURAL BACKGROUND

On May 18, 2012, the district attorney filed a complaint charging 

Hernandez with felony possession of methamphetamine (Health & Saf. Code, § 11377; 

count 1), misdemeanor evading a peace officer (Veh. Code, § 2800.1, subd. (a); count 2), 

and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, 

§ 11364.1, subd. (a); count 3). The complaint further alleged Hernandez had a prior 
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strike conviction (§§ 667, subds. (d), ( e)(1) & 1170.12, subds. (b), (c)(l)), and had served 

three prior prison terms (§ 667.5, subd. (b)). On June 28, 2012, Hernandez pleaded guilty 

to all counts and admitted the strike prior and prison priors. As the factual basis for his 

plea, Hernandez admitted that on May 16, 2012, he had a usable quantity of 

methamphetamine and narcotics paraphernalia in his vehicle and when the police tried to 

stop him for a Vehicle Code violation, he continued to drive with the intention of evading 

the police. 

The court sentenced Hernandez to two years in state prison, consisting of 

two years on count 1, and suspended jail sentences on counts 2 and 3. The court struck 

the strike prior and the prison priors, and awarded Hernandez 88 days of presentence 

custody credit consisting of 44 days each of actual credit and conduct credit. The court 

imposed restitution and parole revocation fines of $240 each on count 1, and stayed the 

latter fine. The court also ordered Hernandez to register for a narcotics offense under 

Health and Safety Code section 11590. The sheriff immediately took Hernandez into 

custody, and it is undisputed that through actual time served and conduct credits he 

successfully completed his two-year prison sentence and was released on PRCS.

On November 24, 2014, Hernandez filed an application in the trial court to 

have his conviction for possession of methamphetamine designated as a misdemeanor 

under section 1170.18, subdivision (f). At the hearing, defense counsel explained 

Hernandez had completed his prison sentence, but acknowledged he remained on PRCS, 

which prompted the prosecutor to argue Hernandez was entitled to Proposition 47 relief 

under section 1170.18, subdivision (a), rather than subdivision (f). In other words, 

subdivision (a) authorized the court to recall Hernandez’s sentence, reduce his felony 

drug possession conviction to a misdemeanor, and resentence him for the misdemeanor

(id., subd. (b)). The trial court agreed and resentenced Hernandez to a one-year 

misdemeanor jail term. The court awarded Hernandez a total of 183 days of actual credit 

and 182 days of conduct credit, for a total of 365 days of credit, placed Hernandez on one 
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year of parole under section 1170.18, subdivision (d), and rejected Hernandez’s argument 

that the excess year he had served under his two-year felony sentence should be applied 

to eliminate his new parole term. Hernandez now appeals.

II

DISCUSSION

As noted at the outset, our holding in Morales controls this case, and we 

therefore address only the three potentially distinguishing features here, namely: 

(1) Hernandez’s claim that the trial court erred in ordering the misdemeanor reduction 

under the recall and resentencing procedure when he had not sought that relief in the 

alternative, but rather had filed only a redesignation application; (2) whether the court in 

reducing his sentence to a misdemeanor was required also sua sponte to reduce his fines 

to the minimum for misdemeanor offenses; and (3)whether the registration requirement 

for felony methamphetamine possession must be stricken as unauthorized for a 

misdemeanor. We address each of these claims in turn, and find merit only in the final 

contention.

Hernandez filed his redesignation application under section 1170.18, 

subdivision (f), and did not seek in the alternative recall and resentencing under 

subdivisions (a), (b), and (d). At oral argument, Hernandez noted that if we were to 

conclude (as we have) that he was not eligible for redesignation under subdivision (f), he 

does not want the judgment reversed and his felony conviction reinstated. Rather, he 

contends the trial court erred in denying his oral motion for a continuance to delay the 

court’s consideration and imposition of a one-year parole term on resentencing. He 

argues that because he sought only redesignation, he was not prepared to address 

resentencing and had not researched any basis for mitigation to reduce his parole term to 

months or eliminate it altogether. The trial court observed, however, that “This is your 

hearing” and when Hernandez offered nothing in mitigation, proceeded to resentence him 

to a misdemeanor term followed by a year of parole supervision. (§ 1170.18, subd. (d).)
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The trial court did not err in denying a continuance, which requires a 

showing of good cause and is committed to the trial court’s sound discretion. (§ 1050; 

People v. Doolin (2009) 45 Cal.4th 390, 450.) In arguing for a year of parole, the 

prosecutor noted Hernandez’s record included a recent robbery conviction in 2009 and 

several PRCS violations resulting in jail time. Defense counsel similarly would have 

been generally familiar with Hernandez’s record, and had the opportunity to consult with 

Hernandez in preparing the motion, but made no offer of proof below and on appeal 

suggests nothing in mitigation to support a continuance. Absent an offer of proof or any 

remote indication of potential mitigating factors, the trial court did not err in denying 

Hernandez’s unfounded request for a continuance.

Hernandez argues his fines must be reduced on appeal (see § 1260

[appellate court may correct the judgment]) because at the original sentencing hearing in 

June 2012, the trial court imposed the minimum $240 felony restitution fine and 

corresponding felony parole revocation fine in the same amount. Hernandez insists we

must strike the $240 fines because, in considering and granting his Proposition 47 

redesignation application as a petition to recall and resentence him to a misdemeanor on 

the possession offense, the trial court failed to reduce the restitution or revocation fines to 

the $120 minimum for a misdemeanor. (§§ 1202.4, subd. (b)(1), 1202.45, subds. (a), 

(b).) Hernandez did not argue his fines should be reduced. Because the fines were within 

the statutory maximum of $1,000 for a misdemeanor (ibid.), Hernandez’s argument on 

appeal that they were unauthorized is without merit. In calculating on remand 

Hernandez’s excess credits, if any, the trial court may consider whether they may be 

applied proportionally to reduce his fines. (Morena, supra.) 

Finally, Hernandez argues, the Attorney General concedes, and we agree 

that the felony methamphetamine possession registration requirement the trial court 

originally imposed (Health & Saf. Code, § 11590, subds. (a), (c)) must be stricken. No 

registration requirement is authorized for a misdemeanor conviction. (Ibid.) 
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III

DISPOSITION

The matter is remanded to the trial court with instructions to recalculate 

defendant’s parole period consistently with this opinion, and to apply any excess credits 

against any applicable fines defendant owes. In all other respects the postjudgment order 

is affirmed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.