A defendant who is on parole or post release community supervision (PRCS) for an offense that qualifies for Proposition 47 resentencing must use the procedure designated for those “still serving” a sentence. In 2011, Lewis pleaded guilty to a theft offense and admitted a strike and a prison prior enhancement. Lewis initially petitioned for Proposition 47 relief in 2014, while he was still incarcerated in state prison. In opposition, the prosecution claimed he posed an unreasonable risk of danger to public safety. While that petition was pending Lewis was released from prison and placed on PRCS. The trial court denied his Proposition 47 petition, finding he posed an unreasonable danger if resentenced. Lewis refiled his petition, claiming he had completed his sentence and thus resentencing was mandatory under Penal Code section 1170.18, subdivision (f). The court denied his petition because he was “still serving” his sentence while on PRCS. Lewis appealed. Held: Affirmed. Proposition 47 reduced certain theft-related felonies to misdemeanors and created a procedure whereby eligible defendants could seek reduction of enumerated felonies to misdemeanors (Pen. Code, § 1170.18). The procedures and standards applied to a resentencing petition depend on the defendant’s status. A defendant “currently serving” a sentence can petition for relief and the court has discretion (subject to certain conditions) to reduce an offense to a misdemeanor (Pen. Code, § 1170.18, subd. (a)). A defendant who has “completed his sentence” for a felony that is now a misdemeanor may petition for relief and the court is required to grant it; the court has no discretion to deny the petition based on current dangerousness (Pen. Code, § 1170.18, subd. (f)). When Lewis filed his petition he was still serving his sentence because a “sentence” which results in imprisonment includes the period of parole or PRCS (Pen. Code, § 3000, subd. (a)(1)). Thus, the trial court correctly selected the standards applicable to Lewis’ petition.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068584.PDF