IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Transcription

1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR PEOPLE OF THE STATE OF CALIFORNIA, No. A v. Plaintiff and Respondent, Related Writ Petition Pending A MICHAEL T. HERRIN, Defendant and Appellant. (Sonoma County Superior Court No. SCR645719) APPELLANT S OPENING BRIEF An appeal from a judgment of the Superior Court of the State of California for the County of Sonoma, the Honorable Jamie Thistlethwaite, Judge, Presiding AMANDA K. ROZE (Cal. Bar No ) 708 Gravenstein Hwy N #312 Sebastopol, CA Telephone: (707) akroze@earthlink.net Attorney for Appellant by Court Appointment through FDAP s Assisted Case System

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii INTRODUCTION STATEMENT OF APPEALABILITY STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT THE TRIAL COURT ERRED IN RULING THAT PROPOSITION 47 DOES NOT APPLY TO RECEIVING STOLEN PROPERTY WORTH LESS THAN $950 WHEN THE OFFENSE IS CHARGED PURSUANT TO PENAL CODE SECTION 496d, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION A. Procedural Background B. Standard of Review C. Under Proposition 47, Receiving Stolen Property Worth $950 or Less is Always a Misdemeanor D. Since Receiving Any Property That Has Been Stolen Is Included Within Proposition 47, Receiving a Particular Type of Property Such as a Vehicle, Is Necessarily Included in Proposition i

3 E. Interpreting Proposition 47 to Exclude the Offense of Receiving a Low-Value Vehicle Violates Appellant s Right to Equal Protection F. Excluding Receipt of Stolen Property Under Section 496d from Proposition 47 Unjustifiably Reduces the Intended Public Safety and Monetary Benefits G. Application of Proposition 47's Liberal Construction Mandate and the Rule of Lenity Compel the Conclusion that Low-Value Penal Code Section 496d Offenses Are Included in Proposition H. Since Appellant s Custody Credits Greatly Exceed The Term of a Properly Calculated Sentence, He Should Be Released From Custody Forthwith, and his Restitution Fine Should Be Reduced to a Misdemeanor Level CONCLUSION CERTIFICATE OF WORD COUNT ii

4 California Statutes TABLE OF AUTHORITIES Page Number Health and Safety Code Section , 6, 8 Section , 6, 8 Penal Code Section Section , 15 Section , 16-18, 23 Section Section 496d passim passim Section , 24 Section Section Section passim California Rules of Court Rule iii

5 Constitutional Provisions U.S. Constitution, Amendment XIV California Constitution, article I, section U.S. Supreme Court Decisions Rinaldi v. Yeager (1966) 384 U.S Federal Appellate Court Decisions Alvarez-Reynaga v. Holder (9 th Cir. 2010) 596 F.3d California Supreme Court Decisions In re Eric J. (1979) 25 Cal.3d People v. Briceno (2004) 34 Cal.4th , 9 People v. Ceja (2010) 49 Cal.4th , 18 People v. Garcia (1999) 21 Cal.4th People v. Jones (1993) 5 Cal.4th California Court of Appeal Decisions People v. Lynch (2012) 209 Cal.App.4th T.W. v. Superior Court (2015) Cal.App.4th [2015 Cal. App. LEXIS 381, A144528, April 21, 2015] , 10 iv

6 Other Sources Proposition Proposition 47, Voter Information Guide, General Election (Nov. 4, 2014), Summary and Analysis passim passim v

7 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR PEOPLE OF THE STATE OF CALIFORNIA, No. A v. Plaintiff and Respondent, Related Writ Petition Pending A MICHAEL T. HERRIN, Defendant and Appellant. (Sonoma County Superior Court No. SCR645719) INTRODUCTION Proposition 47 provides that receiving stolen property worth $950 or less is always a misdemeanor. While serving a sentence for offenses that would have been misdemeanors under Proposition 47, appellant sought resentencing as to each of the offenses including two counts of receiving stolen property for which there was no evidence that the value of the property exceeded $950. The trial court denied resentencing as to the receiving stolen property 1

8 offenses based on its belief that Proposition 47 does not apply to certain types of property, regardless of its value. Appellant contends the court erred and that he is entitled to immediate release because his custody credits exceed the term of a properly calculated sentence. A petition for extraordinary relief, filed May 11, 2015, raising the same issues (No. A145069) is also pending before the Court. STATEMENT OF APPEALABILITY This appeal is from an order after judgment affecting the substantial rights of the defendant and is authorized by Penal Code section 1237, subdivision (b). 1 STATEMENT OF THE CASE A felony complaint filed February 3, 2014 charged Michael T. Herrin with two counts of receiving stolen property ( 496d(a), counts 1 and 2), possession of heroin (Health & Saf. Code 11350(a), count 3), and possession of methamphetamine (id., 11377(a), count 4), and alleged a prior strike conviction ( 211, ). (CT 1-2.) indicated. 1 Statutory references are to the Penal Code, unless otherwise 2

9 Preliminary hearing was waived. (CT 10; RT 15.) The information filed on March 28, 2014 realleged each of the felony counts and the prior strike conviction as contained in the complaint. (CT 11.) On April , appellant agreed to a negotiated plea. (CT 15.) He pled no contest to each of the offenses and admitted the prior strike allegation. (CT 15.). The plea provided for a stipulated prison term of 32 months, consisting of the 16-month low term for receiving stolen property, doubled, with all other counts concurrent. (CT 16.) Appellant waived a referral for a probation report, and the court proceeded to impose sentence pursuant to the bargain. (CT 19-20; RT ) The court also imposed the mandatory minimum restitution fine of $300, and calculated custody credits of 152 days. (CT 20, 22; RT 58, 60.) On December 17, 2014, appellant filed a petition for recall and resentencing pursuant to Penal Code section (CT 23.) On January 2, 2015, the Sonoma County District Attorney filed a response to the petition agreeing that appellant was entitled to resentencing and reduction to misdemeanors as to the two drug 3

10 offenses, but not agreeing to resentencing as to the receiving stolen property counts. (CT 24.) On January 2, 2015, the trial court granted appellant s petition as to counts 3 and 4, the drug offenses, but denied it as to counts 1 and 2, receiving stolen property, on the basis of its belief that Penal Code section 496d, subdivision (a) is not covered by Proposition 47. (RT ; CT 24.) On January 2, 2015, appellant was resentenced to 32 months state prison on count 1, with 32 months concurrent on count 2, and 6 months concurrent on each of the drug offenses, with 152 days credit for time served. (RT 104; CT ) On January 27, 2015, appellant filed a timely notice of appeal. (CT 29.) On May 11, 2015, appellant filed a petition for writ of mandate, docketed in this Division (A145069). On May 13, 2015, this Court issued an order deferring decision on the petition, providing that, The petition for writ of mandate will be considered together with the appeal in People v. Michael T. Herrin, A On May 14, 2015, appellant filed a request for reconsideration/rehearing of the order deferring decision. As of this date, no decision has issued. 4

11 STATEMENT OF FACTS Because there was no preliminary hearing and no probation report, the record does not contain the facts of the offenses. According to the Information, on January 30, 2014, appellant received two stolen 2000 Chevrolet pick-ups and unlawfully possessed heroin and methamphetamine. (CT 11.) According to trial counsel s statement at the Proposition 47 resentencing hearing, not disputed by the prosecution, one of the vehicles was nonoperational, and the value of the vehicles was less than $950. (RT 103.) ARGUMENT THE TRIAL COURT ERRED IN RULING THAT PROPOSITION 47 DOES NOT APPLY TO RECEIVING STOLEN PROPERTY WORTH LESS THAN $950 WHEN THE OFFENSE IS CHARGED PURSUANT TO PENAL CODE SECTION 496d, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION A. Procedural Background On December 17, 2014, appellant filed a petition for resentencing pursuant to Penal Code section , subdivision (a). 5

12 (CT 23.) The petition states that appellant was convicted of offenses that have been reclassified as misdemeanors under Proposition 47, specifically, receiving stolen property, Penal Code section 496d(a) (2 counts), and drug possession, Health and Safety Code sections and (CT 23.) Appellant requested that the sentence be recalled and that he be resentenced to misdemeanors pursuant to section , subdivisions (b) and (d). (CT 23.) On January 2, 2015, the Sonoma County District Attorney filed a response to the petition agreeing that appellant was entitled to resentencing as to the two drug offenses (counts 3 and 4), but not as to the receiving stolen property counts (counts 1 and 2). (CT 24.) On January 2, 2015, the trial court granted the petition as to the drug offenses (count 3 and 4), but denied it as to receiving stolen property (counts 1 and 2). (CT 24; RT ) The court ruled that Proposition 47 does not apply to receiving stolen property when that property consists of a vehicle. (RT ) The court stated, The 496d(a), it s the Court s opinion that it s not covered by Prop 47. (RT ) 6

13 B. Standard of Review In interpreting a voter initiative, the court applies the same principles that govern statutory construction. (People v. Briceno (2004) 34 Cal.4th 451, 459; T.W. v. Superior Court (2015) Cal.App.4th [2015 Cal.App. LEXIS 381, A144528, April 21, 2015].) Issues regarding statutory construction are subject to independent review. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.) C. Under Proposition 47, Receiving Stolen Property Worth $950 or Less is Always a Misdemeanor On November 4, 2014, the electorate passed voter initiative Proposition 47, which became effective on November 5, Proposition 47 provides for sweeping changes by reclassifying nonserious drug and property offenses as misdemeanors. Under Proposition 47, embodied in part in section , subdivision (a), a defendant is entitled to resentencing if he was convicted of a felony that has become a misdemeanor under Proposition 47 unless he has disqualifying prior convictions or if resentencing poses an unreasonable risk to public safety. ( , subds. (a), (b), (i).) 7

14 Section , subdivision (a) provides: A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ( this act ) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing. As applicable here, Proposition 47 reduced the offenses of receiving stolen property not exceeding $950, and possession of illegal drugs from felonies to misdemeanors. (See 496, (a); Health & Saf. Code, 11350, ) The court s denial of resentencing as to the receiving stolen property offenses is inconsistent with the language of Proposition 47 and the related ballot information and it negates the intent of the electorate. Since there was no evidence that the value of the property exceeded $950, and it was undisputed that appellant did not have any disqualifying prior convictions, and that resentencing would not pose an unreasonable risk, he was entitled to resentencing for all of the offenses as misdemeanors. 8

15 In interpreting a voter initiative, the court turns first to the language of the statute, giving the words their ordinary meaning. 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]. When the language is ambiguous, [the court] refer[s] to other indicia of the voters intent, particularly the analyses and arguments contained in the official ballot pamphlet. In other words, [the court s] primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure. (T.W. v. Superior Court, supra, slip opn. p. 9; accord People v. Briceno, supra, 34 Cal.4th at p. 459.) In the case of a provision adopted by the voters, their intent governs. (People v. Jones (1993) 5 Cal.4th 1142, 1146.) Proposition 47 states that it is the purpose and intent of the people of the State of California to Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. (Prop. 47, 3(3).) The nonserious, nonviolent crimes are identified as Grand Theft, 9

16 Shoplifting, Receiving Stolen Property, Writing Bad Checks, Check Forgery, and Drug Possession. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by Legis. Analyst, pp ) In particular, Proposition 47 amended section 496 so that it provides, for qualified defendants, that: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year... ( 496 [emphasis added].) The Attorney General s official summary of Proposition 47 provides that Proposition 47 [r]equires misdemeanor sentence instead of felony for the following crimes when amount involved is $950 or less: petty theft, receiving stolen property, and forging/writing bad checks. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Summary by 10

17 Atty. Gen., p. 34 [emphasis added].) Further, the Analysis by the Legislative Analyst provides, Under current law, individuals found with stolen property may be charged with receiving stolen property, which is a wobbler crime. Under this measure, receiving stolen property worth $950 or less would always be a misdemeanor. (Id., Analysis by Legis. Analyst, p. 35 [emphasis added].) None of these provisions exclude individuals from the coverage of Proposition 47 based on the nature of the property possessed. Indeed, the voter materials make it clear that the value of the property is determinative, regardless of the nature of the property. Addressing grand theft, the Legislative Analyst stated that, prior to Proposition 47, a wobbler charge [could] occur if the crime involve[d] the theft of certain property (such as cars)... (Ibid.) However, after passage of Proposition 47, such crimes would no longer be charged as grand theft solely because of the type of property involved... (Ibid. [emphasis added].) The court erred by focusing on the nature of the property taken rather than its value. Since prosecutors lack the discretion to 11

18 charge a receiving stolen vehicle offense under section 496d where the vehicle is not worth more than $950, appellant was entitled to resentencing on his section 496d offenses. Reduction of felony offenses to misdemeanors is mandatory if the offenses are eligible, the defendant does not have disqualifying offenses, and resentencing would not pose an unreasonable risk of danger to public safety. ( , subd. (b).) Given that appellant was granted partial relief unopposed, there is no question that he meets the criteria for resentencing. The prosecution produced no evidence that the property appellant received was valued at more than $950. (RT 103.) Therefore, the trial court was without discretion to deny resentencing on the offenses as misdemeanors. D. Since Receiving Any Property That Has Been Stolen Is Included Within Proposition 47, Receiving a Particular Type of Property Such as a Vehicle, Is Necessarily Included in Proposition 47 The fact that appellant was convicted under section 496d instead of section 496 does not affect the applicability of Proposition 47 since section 496d is but a narrower version of section 496. (See 12

19 Alvarez-Reynaga v. Holder (9 th Cir. 2010) 596 F.3d 534, 536.) Section 496 proscribes the knowing receipt of all property while section 496d is limited to vehicles, trailers, special construction equipment, and vessels. Sections 496 and 496d are identical offenses except that section 496 is the broader offense, not excluding any particular type of property, while section 496d, with its limited applicability, is more narrow. (Ibid.) Both offenses are nonviolent, nonserious crimes. ( 667.5(c), (c).) Both apply to the actual thief of the property. It was the intent of the Legislature to provide for the prosecution of principals in the actual theft of the property who continue to possess the property after the statute of limitations has run on the theft of the property. (Stats. 1992, ch. 1146, 2.) The offenses provide for similar penalties except that section 496d provides for lesser punishment by permitting the imposition of a fine instead of imprisonment. Since Proposition 47 applies to section 496 offenses, it necessarily applies to the offense of receiving stolen vehicles which is included within the offense of receiving stolen property. 13

20 Receiving a low-value stolen vehicle is a misdemeanor regardless of the fact that section 496d was not expressly amended by the act. Proposition 47 did not purport to exhaustively list or amend each of the statutory provisions that would be affected by its passage. For example, it did not amend the grand theft statute ( 487) or include section 487 in section , although section makes it clear that the prosecution now lacks the discretion to charge the theft of a vehicle valued at less than $950 as grand theft. Section 487, subdivision (d), makes theft of a vehicle, grand theft. However, Proposition 47 reduced the crime of vehicle theft to a misdemeanor if the value of the vehicle does not exceed $950. (Prop. 47, 8; 490.2, subd. (a).) Proposition 47 made an exception to the crime of grand theft by adding section 490.2, subdivision (a), which provides: Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor. (

21 [emphasis added].) Thus, Proposition 47 provides that if the value of a stolen vehicle does not exceed $950, it can only be punished as a misdemeanor theft. (Ibid.; Prop. 47, 8.) Likewise, Proposition 47 modified the punishment for receiving stolen property. (Prop. 47, 9.) Receiving or concealing stolen property is a wobbler, which can be charged either as a misdemeanor or a felony. ( 496, subd. (a), 496d(a).) However, where the value of the property, regardless of its nature, does not exceed $950, it must be charged as a misdemeanor. (Prop. 47, 9.) Just as Proposition 47 made the crime of petty theft a misdemeanor, regardless whether the offense would otherwise constitute grand theft, without expressly modifying section 487, it made the offense of receiving stolen property worth $950 or less a misdemeanor, regardless of the nature of the property, without expressly modifying section 496d. The voters intended to prevent theft cases involving low-value property from being punished as felonies. It is inconsistent with this intent to conclude that, while reducing the punishment for stealing a 15

22 low-value car to a misdemeanor with a maximum six-month sentence (Prop. 47, 8; 19, 490.2), the voters intended to leave the crime of receiving or concealing that same stolen car to be punished as a felony. Moreover, interpreting Proposition 47 to exclude section 496d would permit prosecutors to circumvent the act by charging vehicle thefts as receiving stolen property under section 496d. E. Interpreting Proposition 47 to Exclude the Offense of Receiving a Low-Value Vehicle Violates Appellant s Right to Equal Protection Treating low-value vehicle theft as a misdemeanor while treating the offense of receiving the same low-value stolen vehicle as a felony violates the equal protection provisions of the California and United States Constitutions. (U.S. Const., amend XIV; Cal. Const., art. I, 7.) The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion. We first ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. If groups are similarly situated but treated differently, the state must then 16

23 provide a rational justification for the disparity. (People v. Lynch (2012) 209 Cal.App.4th 353, 358, internal citations omitted.) The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. It also imposes a requirement of some rationality in the nature of the class singled out. (Rinaldi v. Yeager (1966) 384 U.S. 305, , internal citation omitted.) Persons similarly situated with respect to the legitimate purpose of the law must receive like treatment. (In re Eric J. (1979) 25 Cal.3d 522, 531.) A person guilty of receiving or concealing a stolen vehicle ( 496d) with a value of $950 or less is similarly situated to persons guilty of theft of a vehicle of the same value ( 490.2) and to persons guilty of receiving or concealing stolen property of the same value ( 496). (See People v. Ceja (2010) 49 Cal.4th 1, 7, fn. 6 [ when theft and receiving offenses are both felonies, the punishment is the same ].) Under Proposition 47, theft of a low-value vehicle is a misdemeanor with a maximum six-month sentence (Prop. 47, 8; 19, 490.2), and receipt of low-value stolen property is a misdemeanor 17

24 with a maximum one-year sentence (Prop. 47, 9; 496). However, under the trial court s interpretation, receiving or concealing the same stolen car that garnered the thief a six-month sentence would be a felony, exposing the defendant to a three-year term and a $10,000 fine ( 496d). There can be no rational justification for these disparities. The offense of receiving a stolen vehicle is no more serious than the theft of the same vehicle, or receipt of any property of the same value. Indeed, where a defendant is erroneously convicted of both theft and receiving stolen property, the proper remedy is to reverse the receiving charge. (People v. Ceja, supra, 49 Cal.4th at p. 2.) Moreover, given that section 496d provides for the lesser punishment of a fine as opposed to section 496 which requires imprisonment, there is no rational basis for granting relief to those convicted of receiving stolen property under section 496, but denying it to those convicted of the less serious offense described in section 496d. Therefore, appellant is entitled to be resentenced in accordance with section or

25 F. Excluding Receipt of Stolen Property Under Section 496d from Proposition 47 Unjustifiably Reduces the Intended Public Safety and Monetary Benefits By passing Proposition 47, the voters intended to ensure that prison spending is focused on violent and serious offenses. (Prop. 47, 2.) To achieve this goal, Proposition 47 changed simple drugpossession crimes and theft-related crimes involving $950 or less from felonies to misdemeanors. (Prop. 47, 3.) Proposition 47 states that it seeks to channel incarceration spending to serious crime, to maximize alternatives to incarceration for nonserious crime, and to invest the savings in children s and adult programs. These goals apply to individuals convicted of all qualifying offenses, regardless of the nature of the property involved. (Prop. 47, 2, Findings and Declarations.) In addition to the above Declaration, the Act includes a Purpose and Intent clause enumerating with greater specificity the intent and expectation that substantial cost savings be realized by the passage of the initiative. It provides: 19

26 In enacting this act, it is the purpose and intent of the people of the State of California to:... (2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to the State Department of Education for crime prevention and support programs in K-12 schools, 10 percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for mental health and substance abuse treatment programs to reduce recidivism of people in the justice system.... (6) This measure will save significant state corrections dollars on an annual basis. Preliminary estimates range from $150 million to $250 million per year. This measure will increase investments in programs that reduce crime and improve public safety, such as prevention programs in K-12 schools, victim services, and mental health and drug treatment, which will reduce future expenditures for corrections. (Prop. 47, 3.) These lofty cost-savings estimates would be unduly reduced if individuals convicted of receiving certain types of property, regardless of its value, were excluded from relief. The Purpose and Intent clause does not exclude relief to individuals based on the nature of the property taken: In enacting this act, it is the purpose and intent of the people of the State of California to: (I) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.... (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions 20

27 for specified violent or serious crimes. (4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors. (Prop. 47, 3.) Affording relief to defendants who were convicted of receiving stolen vehicles, when the value does not exceed $950, is fully consistent with, and required by, the Findings, Declarations, Purpose and Intent of Proposition 47. G. Application of Proposition 47's Liberal Construction Mandate and the Rule of Lenity Compel the Conclusion that Low-Value Penal Code Section 496d Offenses Are Included in Proposition 47 In furtherance of its objectives of saving significant state corrections dollars and ensuring that prison spending is focused on violent and serious offenses, the act implementing Proposition 47 instructs the courts: This act shall be broadly construed to accomplish its purposes.... (Prop 47, 15); and This Act shall be liberally construed to effectuate its purposes (Prop. 47, 18). Viewed in light of these objectives, interpreting section to include coverage for the offense of receiving low-value vehicles effectuates the intent of the voters who passed Proposition

28 Further, the rule of lenity for interpretation of ambiguous penal statutes provides that the Court should construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit. (People v. Garcia (1999) 21 Cal.4th 1, 10.) Therefore, to the extent the Court believes the statutory language reflects any ambiguity regarding inclusion of the offense of receiving stolen vehicles, it is required to interpret the statutes in appellant s favor under the express policy of Proposition 47 and the rule of lenity. This compels the conclusion that section 496d offenses must be afforded Proposition 47 relief. H. Since Appellant s Custody Credits Greatly Exceed The Term of a Properly Calculated Sentence, He Should Be Released From Custody Forthwith, and his Restitution Fine Should Be Reduced to a Misdemeanor Level The record reflects that appellant has been in the custody of the California Department of Corrections and Rehabilitation since his conviction and sentencing on April 17, (CT 21.) At that time, appellant had 152 days of presentence custody credit. (CT 22.) As of the date of filing of the opening brief, appellant has served an 22

29 additional 407 actual days of custody (4/17/14-5/28/15), and accumulated approximately 81 days of conduct credits (20% of 407) for a total of 488 days post-sentence. Adding 488 days to the original 152 days gives him total credits of 670 days. As argued above, appellant was entitled to misdemeanor sentences for each of his offenses. He has been resentenced for the drug possession offenses to six-month concurrent terms. (RT 104.) As to the receiving stolen property offenses, his maximum term is either six-months ( 490.2) or one-year ( 496). The terms must again be imposed concurrently since Proposition 47 requires that resentencing shall not result in the imposition of a longer term than the original sentence. ( , subd. (e).) Since appellant s custody credits of 670 days exceed the length of the longest possible term of one year, this Court should order him released from custody forthwith. (See 1260.) Further, the Court should reduce appellant s restitution fine to the mandatory minimum misdemeanor fine of $150. ( (b)(1).) At the original sentencing, the court imposed the mandatory 23

30 minimum felony restitution fine of $300. (CT 20, 22; RT 60.) At the resentencing, where felony offenses remained, the original fine was maintained. (CT 26; RT 104.) Penal Code section , subdivision (b) provides that while the minimum fine for felonies is $300, the minimum fine for misdemeanors is $150. Section , subdivision (k) provides that, Any felony conviction that is recalled and resentenced under subdivision (b)... shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm... Given that all of appellant s offenses should be reduced to misdemeanors, the Court should reduce the restitution fine accordingly to $150. ( 1260.) CONCLUSION Appellant Michael T. Herrin respectfully requests that this Court reverse the order denying resentencing, designate the receiving stolen property offenses as misdemeanors, order that he be released forthwith, and order his restitution fine to be 24

31 reduced to $150. DATED: May 28, 2015 Respectfully submitted, AMANDA K. ROZE Attorney for Appellant CERTIFICATION OF WORD COUNT (Cal. Rules of Ct., Rule 8.360(b)(1)) I, Amanda K. Roze, counsel of record for appellant Michael T. Herrin, do hereby certify that I used the word processing program WordPerfect to generate this brief, and according to that software program the word count of this brief is 4,863. Dated: May 28, 2015 AMANDA K. ROZE 25

32 PROOF OF SERVICE BY MAIL I am over the age of 18 years and not a party to this action. My business address is 708 Gravenstein Highway North, #312, Sebastopol, California, On May 28, 2015, I served a copy of the attached APPELLANT S OPENING BRIEF (in People v. Herrin, A145069) on the following by placing a true copy thereof in an envelope with first class postage prepaid and depositing it in the United States mail, addressed as follows: Michael T. Herrin, AT3484 California State Prison, Folsom P.O. Box Represa, CA Office of the Clerk, Sonoma County Superior Court Attn: Hon. Jamie Thistlethwaite 600 Administration Drive, #107J Santa Rosa, CA Sonoma County District Attorney 600 Administration Drive Room 212-J Santa Rosa, CA 9503 Sonoma County Public Defender 600 Administration Drive Room 111-J Santa Rosa, CA I declare under penalty of perjury that the foregoing is true and correct. Executed this 28th day of May, 2015 at Sonoma County, California. AMANDA K. ROZE