Filed 9/2/16 P. v .Truong CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051305

         v.                                                            (Super. Ct. No. 11WF0713)

MY HOANG THI TRUONG,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher J. Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Affirmed and remanded with directions.
                   Richard Schwartzberg, 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.
              My Hoang Thi Truong appeals from the trial court’s postjudgment order
granting her petition to recall her sentence and reduce her receiving stolen property and
drug possession convictions to misdemeanors. Truong argues the trial court erred by
imposing one year of parole and the court was required to apply any excess custody
credits to reduce her parole period.
              After briefing was complete, the California Supreme Court filed its opinion
in People v. Morales (2016) 63 Cal.4th 399 (Morales). We ordered the parties to file
supplemental letter briefs on the effect of Morales on this case. They have done so.
Neither of Truong’s contentions have merit. We affirm the postjudgment order and
remand the matter with directions.
                                          FACTS
              In April 2011, Truong pleaded guilty to four counts of receiving stolen
property (Pen. Code, § 496, subd. (a)), and possession of a controlled substance,
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and admitted she served two
prior prison terms (Pen. Code, § 667.5, subd. (b), all further statutory references are to the
Penal Code). The factual basis for the plea was “[she] willfully and unlawfully
possessed/received stolen property, knowing it was stolen, and possessed a usable
quantity of methamphetamine.” Pursuant to the plea agreement, the trial court sentenced
Truong to two years in prison. In 2013, Truong was released on postrelease community
supervision (PRCS).
              On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (the Act), which became effective the following day.
(See § 1170.18.) In January 2015, Truong filed an application to have her receiving
stolen property and drug possession convictions designated as misdemeanors (§ 1170.18).
The trial court granted the petition under section 1170.18, subdivision (a), recalled the
felony sentences on her convictions, and designated them as misdemeanors. The court



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imposed 365 days in the Orange County Jail, awarded 365 days of credit, and imposed
one year of parole under section 1170.18, subdivision (d).
                                        DISCUSSION
PRCS
              Truong contends the trial court erred by sentencing her pursuant to section
1170.18, subdivision (a), and imposing one year of parole, because she had completed
her prison term and PRCS was not part of her sentence. Not so.
              The trial court properly resentenced Truong pursuant to section 1170.18,
subdivision (a), because she had not completed PRCS and, therefore, was “currently
serving a sentence” for a qualifying felony conviction. (§ 1170.18, subd. (a) [“A person
currently serving a sentence” for a conviction for a qualifying felony may petition for
recall of sentence and resentencing]; see Morales, supra, 63 Cal.4th at pp. 403, 409
[defendant subject to PRCS].) 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 long-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. (Id. at p. 609.)
Excess Custody Credits
              In her opening brief, Truong argues the trial court should have applied any
excess custody credits to reduce her parole period. This claim was recently rejected by
the California Supreme Court in Morales.
              Morales, supra, 63 Cal.4th at pages 404-405, stated as follows: “At issue
here is the proper interpretation of section 1170.18, subdivision (d), which provides: ‘A
person who is resentenced pursuant to subdivision (b) 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. Such person is subject to [s]ection 3000.08 parole supervision by the

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Department of Corrections and Rehabilitation and the jurisdiction of the court in the
county in which the parolee is released or resides, or in which an alleged violation of
supervision has occurred, for the purpose of hearing petitions to revoke parole and
impose a term of custody.’ (Italics added.) On its face, this language seems to require
the one-year parole period subject to the court’s discretion to order otherwise. It states
that the person shall receive credit for time served and shall be subject to parole.” The
Supreme Court held, “We conclude that credit for time served does not reduce the parole
period.” (Morales, supra, 63 Cal.4th at p. 403.) In her supplemental briefing, Truong
concedes Morales forecloses this claim. This does not end our inquiry, however, as there
were further proceedings in the trial court after Truong filed her notice of appeal.
              On June 26, 2015, this court filed its opinion in People v. Morales (2015)
238 Cal.App.4th 42, review granted August 26, 2015, No. S228030, holding as relevant
here, excess custody credits do reduce a parole period. Less than one month later, on
July 23, 2015, during briefing, the trial court, relying on our decision in People v.
Morales, supra, 238 Cal.App.4th 42, discharged Truong from parole after applying her
excess custody credits to her parole period. Truong had been on parole for about six-and
one-half months.
              In her supplemental briefing, Truong asserts the appeal is moot and whether
the trial court erred in discharging her from parole is not before this court. In her
supplemental briefing, the Attorney General contends the trial court’s order releasing
Truong from parole was null and void because the court did not have jurisdiction and our
decision in People v. Morales, supra, 238 Cal.App.4th 42, was not final. The Attorney
General, claiming Truong has an additional five-and one-half months of parole to serve
but recognizing she has not been on parole for over one year, suggests we remand the
matter to the trial court to fashion an appropriate remedy, i.e., reinstate the remainder of
parole or rescind the order imposing parole.



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              While we commend the trial court’s initiative in modifying Truong’s
sentence to comport with Morales, supra, 238 Cal.App.4th 42, we conclude the court
lacked jurisdiction to make the modification because this appeal was pending. (People v.
Scarbrough (2015) 240 Cal.App.4th 916, 929-930 [trial court lacked jurisdiction to recall
sentence and resentence under proposition 47 while appeal was pending (Scarbrough);
but see People v. Awad (2015) 238 Cal.App.4th 215, 223-224 [limited remand to allow
trial court to conduct proposition 47 postconviction hearing proper].) There was no
limited remand in this case. Although section 1237.1 gives trial courts concurrent
jurisdiction to correct errors involving the calculation of presentence credits while an
appeal is pending, that section applies only to mathematical or clerical mistakes, not
substantive issues like the ones involved in this case. (Scarbrough, supra,
240 Cal.App.4th at p. 923.) Therefore, the modification order is void. (Id. at p. 920.)
                                      DISPOSITION
              The trial court’s modification order filed on July 23, 2015, is void for lack
of jurisdiction. The postjudgment order is affirmed. The matter is remanded with
directions to resolve the issue of Truong’s parole status.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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