People v. Wilson

53 Cal.App.5th 42

266 Cal.Rptr.3d 761

The PEOPLE, Plaintiff and Respondent,

v.Michael H. WILSON, Defendant and Appellant.

A158305

Court of Appeal, First District, Division 3, California.

Filed August 6, 2020

Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Rene A. Chacon, Deputy Attorney General, for Plaintiffs and Appellants.

First District Appellant Project, I. Richard Braucher, Richmond, for Defendant and Appellant.

Petrou, J. Senate Bill No. 1437 (Stats. 2018, ch. 1015), effective January 1, 2019, made changes to Penal Code ¹ sections 188 and 189 governing accomplice liability for felony murder and murder under the natural and probable consequences theory. As part of the bill, the Legislature enacted section 1170.95, which allows defendants who could not be convicted of first or second degree murder under the new law to file a petition to seek to vacate their murder conviction and be resentenced on any remaining counts in the same manner "as if the petitioner had not been previously ... sentenced, provided the new sentence, if any, is not greater than the initial sentence." (Id. , subds. (a), (b), (d)(1), (3).) "A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to three years following the completion of the sentence." (§ 1170.95, subd. (g).)

Wilson filed a petition for resentencing under section 1170.95. The trial court vacated his murder conviction, resentenced him to time served on his robbery conviction and related sentence enhancement, and placed him on parole supervision for two years. On appeal, Wilson challenges the judgment and seeks immediate release from parole supervision on the basis that the trial court was mandated, but failed, to apply his excess custody credits to eliminate the two-year parole period.

We conclude the trial court is not required to mechanically apply excess custody credits to reduce or eliminate the parole period imposed at a resentencing pursuant section 1170.95. Instead, and notwithstanding excess custody credits, the court may exercise its discretion when deciding whether to order a period of parole.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, a jury found Wilson guilty of first-degree murder (§ 187) and second-degree robbery (§ 212.5, subd. (c)). The trial court found Wilson had sustained two prior strike convictions within the meaning of the Three Strikes Law (§ 667, subds. (d), (e)), and the prosecution dismissed a third prior strike conviction under section 1385. The court sentenced Wilson to an aggregate term of 50 years to life with the possibility of parole, and stayed consecutive sentences for the second-degree robbery conviction and the related sentence enhancement under section 654. We affirmed the judgment in an unpublished opinion ( People v. Wilson (Oct. 22, 2008, A116576) 2008 WL 4650412 [nonpub. opn.] ), and our Supreme Court denied review (People v. Wilson (Jan. 14, 2009, S168492)).

Following a contested hearing, the trial court granted Wilson's section 1170.95 petition. On August 19, 2019, the court vacated the first-degree murder conviction, imposed sentence on the second-degree robbery conviction of five years in prison, doubled to ten years for the related sentence enhancement, and ordered two years of parole supervision.

Wilson had credit for 6,771 days of time served on his vacated murder conviction, which he asked the court to apply to both the new term of imprisonment and the parole period. The trial court granted the request in part, and ordered that Wilson would not serve any time in custody, but would serve the full term of two years on parole. The court explained that, because Wilson had a significant criminal history, a two year period of parole was appropriate despite his having spent 16 years in custody.

Wilson timely appealed from the August 19, 2019 judgment.

DISCUSSION

I. General Principles

Statutory interpretation is " ‘an issue of law, which we review de novo.’ " ( Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1183, 250 Cal.Rptr.3d 818, 446 P.3d 317.) "Our fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning." ( Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737, 21 Cal.Rptr.3d 676, 101 P.3d 563.) "If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy." ( Ibid . )

II. The Trial Court Is Not Mandated to Apply Excess Custody Credits to Reduce or Eliminate a Period of Parole Imposed At Resentencing Under Section 1170.95

Wilson contends the trial court erred as a matter of law in not applying his excess custody credits to the parole period when resentencing him under section 1170.95. He relies primarily on the general rule that, in the context of original sentencing, excess presentence credits can reduce a period of parole. (See, e.g., In re Sosa (1980) 102 Cal.App.3d 1002, 1005, 162 Cal.Rptr. 646 [presentence credit applies against both the imprisonment and the parole portion of the sentence]; § 2900.5, subd. (a) [the entire prison term is deemed to have been served where the total time in custody exceeds the prison term]; § 2900.5, subd. (c) ["For the purposes of this section, ‘term of imprisonment’ includes any period of imprisonment ... ordered by a court" "and also includes ... any period of imprisonment and parole , prior to discharge"], italics added.) He also relies heavily on section 1170 subdivision (a)(3) (§ 1170(a)(3)), which provides that the entire sentence shall be deemed to have been served where the pre-custody credit exceeds the imposed sentence, and that the defendant "shall serve an applicable period of parole ... unless the in-custody credits equal the total sentence, including both confinement time and period of parole ." (Italics added.) We conclude that these general principles regarding the applicability of custody credits towards parole periods do not apply to resentencing under section 1170.95.

People v. Morales (2016) 63 Cal.4th 399, 203 Cal.Rptr.3d 130, 371 P.3d 592 ( Morales ) is instructive. There, our Supreme Court interpreted section 1170.18, a resentencing provision enacted as part of Proposition 47, which reduced certain non-serious, nonviolent crimes from felonies to misdemeanors and allowed persons with a felony sentence to petition for a misdemeanor sentence. ( Morales , supra , 63 Cal.4th at p. 403, 203 Cal.Rptr.3d 130, 371 P.3d 592.) Under section 1170.18 (Proposition 47 statute), the trial court reduced Morales’ felony drug offense conviction to a misdemeanor, resentenced him to time served, imposed a one-year period of parole supervision, and declined to apply excess custody credits to the parole period. ( Morales , supra , 63 Cal.4th at p. 403, 203 Cal.Rptr.3d 130, 371 P.3d 592.) The Supreme Court affirmed, concluding that credit for time served does not reduce a parole period imposed at resentencing under Proposition 47. ( Ibid . )

The Supreme Court examined the words in subdivision (d) of the Proposition 47 statute, which states in relevant part: " ‘A person who is resentenced pursuant to [this section] 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, as part of its resentencing order, releases the person from parole.’ " ( Morales , supra , 63 Cal.4th at p. 404, 203 Cal.Rptr.3d 130, 371 P.3d 592.) The Supreme Court compared the statute to section 2900.5, whose legislative purpose was to eliminate the unequal treatment suffered by indigent defendants who serve a longer overall confinement than wealthier defendants because of their inability to post bail. ( Morales , supra , at p. 405, 203 Cal.Rptr.3d 130, 371 P.3d 592.) To that end, "section 2900.5 states two things ...: (1) the person is entitled to credit for time served, and (2) the credit can reduce or eliminate the period of parole." ( Morales , supra , at p. 406, 203 Cal.Rptr.3d 130, 371 P.3d 592.) The Proposition 47 statute, on the other hand, "states the first of these but not the second." ( Morales , supra , at p. 406, 203 Cal.Rptr.3d 130, 371 P.3d 592.)

Noting that the Proposition 47 statute "[i]nstead ... states the person is to receive credit for time served and is subject to parole," the Supreme Court concluded that the words "credit for time served" in the Proposition 47 statute did not encompass the broader principles set forth in section 2900.5 that "credit for time served" can also reduce or eliminate any period of parole. ( Morales , supra , 63 Cal.4th at p. 406, 203 Cal.Rptr.3d 130, 371 P.3d 592.) The Supreme Court concluded Morales was entitled to credit for time served and was also subject to parole even though there were excess custody credits. ( Ibid. )

In reaching this conclusion, the Supreme Court assumed that the voters had existing law in mind when they enacted Proposition 47, and stated it was "far from clear" that the voters intended "to make the law in this regard identical to section 2900.5." ( Morales , supra , 63 Cal.4th at p. 406, 203 Cal.Rptr.3d 130, 371 P.3d 592.) "If we assume the voters had in mind existing law, we may also assume they had in mind that the statute concerning presentence credit in ordinary cases (i.e., § 2900.5) states both that the person is entitled to credit...