P. v. Bolander

Filed 3/30/16 P. v. Bolander 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
BOBBY BOLANDER,
Defendant and Appellant.
2d Crim. No. B266510
(Super. Ct. No. 2012019195)
(Ventura County)
Bobby Bolander appeals the order recalling his felony sentence,
resentencing him to a misdemeanor, and placing him on misdemeanor parole for one
year pursuant to Penal Code1 section 1170.18, which was enacted by Proposition 47.
Appellant contends the trial court erred in placing him on misdemeanor parole because he
had completed his felony sentence and was on Post Release Community Supervision
(PRCS) when he sought relief under Proposition 47. He alternatively contends the court
erred in refusing to deduct his excess custody credits from his term of misdemeanor
parole. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, appellant pled guilty to felony possession a controlled
substance (Health & Saf. Code, § 11350, subd. (a)) and the misdemeanor offense of
1 All statutory references are to the Penal Code unless otherwise stated.

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disobeying a court order (§ 166, subd. (a)(1)). The court sentenced him to two years in
state prison and awarded 557 days of presentence custody credit.
In July 2013, appellant was released from prison and placed on PRCS. In
June 2015, he filed a petition for resentencing pursuant to section 1170.18. The petition
alleged that appellant was currently in jail but had "completed his custody sentence" and
was on PRCS. The court recalled appellant's sentence, resentenced him to a
misdemeanor, and placed him on one year of supervised misdemeanor parole in
accordance with subdivision (d) of section 1170.18. The court rejected appellant's claim
that he was not subject to misdemeanor parole and declined his request to apply his
excess custody credits against the term of parole. Appellant's PRCS was terminated.
DISCUSSION
Appellant contends the court erred in placing him on misdemeanor parole
after resentencing him under Proposition 47 because he had been released from prison
and placed on PRCS. Alternatively, he claims he is entitled to have his excess custody
credits applied against his term of misdemeanor parole. Neither claim has merit.
Proposition 47 reclassified certain drug- and theft-related offenses from
felonies or "wobblers" to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th
1085, 1091-1092.) Section 1170.18 allows those convicted of a reclassified offense prior
to November 5, 2014, to petition for a reduction of their conviction from a felony to a
misdemeanor. A person "currently serving a sentence" for a reclassified offense may
petition to have his or her sentence recalled and be resentenced to a misdemeanor
(§ 1170.18, subds. (a) & (b)), while one who has "completed his or her sentence" for such
an offense may apply to have the conviction designated as a misdemeanor (§ 1170.18,
subd. (f)). A person resentenced to a misdemeanor under subdivision (b) is "given credit
for time served" and is "subject to parole for one year following completion of his or her
sentence." (§ 1170.18, subd. (d).)
Appellant asserts that the court erroneously placed him on misdemeanor
parole after resentencing him to a misdemeanor because he had already "completed his

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. . . sentence" for the reclassified offense. We disagree. Appellant had not yet completed
his sentence when he was released from prison and placed on PRCS because PRCS was
part of his felony sentence. A period of parole or PRCS "constitutes part of the
punishment for the underlying crime." (People v. Nuckles (2013) 56 Cal.4th 601, 608.)
Parole supervision or PRCS is, with exceptions not relevant here, a mandatory feature of
every "'sentence resulting in imprisonment in the state prison . . . .'" (Id. at p. 609,
quoting § 3000, subd. (a)(1).) We presume that the voters who enacted Proposition 47
were aware of this statutory requirement. (See, e.g., People v. Superior Court
(Cervantes) (2014) 225 Cal.App.4th 1007, 1015 [voters enacting Proposition 36 are
deemed to have been aware of existing statutes].) We accordingly presume that the
voters intended subdivisions (a) and (f)'s felony "sentence" to include a prison term and a
period of parole or PRCS. Because appellant had not completed his PRCS term when he
petitioned for relief under Proposition 47, he had not completed his sentence. (People v.
Nuckles, supra, at p. 609.) The court thus properly resentenced him under subdivision (b)
of section 1170.18, rather than subdivision (f), and correctly placed him on misdemeanor
parole in accordance with subdivision (d).
We also reject appellant's alternative claim that the court erred in refusing
to deduct his excess custody credits from his one-year term of misdemeanor parole.2
Section 1170.18, subdivision (d) plainly and unambiguously provides that "[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." The 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
2 This issue is before the California Supreme Court in People v. Morales, No.
S228030, review granted Aug. 26, 2015. The Supreme Court has granted review in two
cases decided by this court that involve the same issue: People v. McCoy, No. S229296,
review granted Oct. 14, 2015; and People v. Hickman, No. S227964, review granted Aug.
26, 2015.

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petitioner shall be subject to parole for one year. (Ibid.) 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." The statutory language
makes clear that the only exception to the one-year parole requirement is if the court
releases the person from that requirement in the exercise of its discretion. "'[T]he
existence of specific exceptions 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 exceptions precludes implying others.' [Citation.]" (In re James H. (2007) 154
Cal.App.4th 1078, 1083-1084; 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 down therein, that exception is strictly construed . . . [and] [o]ther exceptions 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 the 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,
Analysis by Legislative Analyst, p. 36.) Any voter who read this statement would have
assumed that a one-year period of parole is mandatory unless the judge reduces or
eliminates it. "The Legislative Analyst's comments, like other materials 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 Legislative Analyst's comments we do not automatically assume that the
latter accurately reflects the voters' understanding. [Citation.]" (San Francisco
Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 580.) Nothing in the
election materials for Proposition 47 contradicts the Legislative Analyst's conclusion that
a person resentenced to a misdemeanor "would be required to be on state parole for one

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year." This is the only statement in the election materials concerning the one-year
misdemeanor parole period. (See People v. Superior Court (Henkel) (2002) 98
Cal.App.4th 78, 82 [Legislative Analyst's comment "eliminates doubt" as to correct
interpretation of ballot proposition].) Accordingly, the court correctly refused to apply
appellant's excess custody credits to reduce his one-year term of misdemeanor parole.
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.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.

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Donald D. Coleman, Judge
Superior Court County of Ventura
______________________________
California Appellate Project, Jonathan B. Steiner and Richard B. 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, Noah P. Hill and
Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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