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Name: People v. McCoy
Case #: B260449
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/12/2015
Subsequent History: Review granted 10/14/2015: S229296

Defendant resentenced to a misdemeanor under Proposition 47 cannot use excess custody credits to reduce his one year Proposition 47 parole term. McCoy pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted six prior prison terms (Pen. Code, § 667.5, subd. (b)). After repeated probation violations, the court revoked McCoy’s probation and sentenced him to four years in prison. After voters passed Proposition 47, McCoy successfully petitioned to have his felony possession of methamphetamine conviction reduced to a misdemeanor and was sentenced to one year in jail with credit for time served. The court also placed him on one year of parole. (See Pen. Code, § 1170.18, subd. (d).) However, McCoy had 381 actual days of credit and 380 conduct credits, which he requested be used to reduce the parole term. The court denied his request. McCoy appealed. Held: Affirmed. The Court of Appeal reiterated its holding in People v. Hickman (2015) 237 Cal.App.4th 984, that excess custody credits cannot be used to reduce the one year Proposition 47 parole term. The court also expressly disapproved of the decision in People v. Morales (2015) 238 Cal.App.4th 42, which reached the opposite conclusion. The court emphasized that the one year parole term is distinct from other forms of parole because the electorate specifically intended that it apply in every case unless the trial court concludes otherwise. The court also rejected McCoy’s equal protection argument on the basis that nonviolent drug offenders resentenced under Proposition 47 are not similarly situated to violent felony offenders, who are able to use excess custody credits to reduce their parole terms under the rule set forth in In re Sosa (1980) 102 Cal.App.3d 1002.

Excess custody credits cannot be used to satisfy a restitution fine but they could be used to satisfy a drug program fee. When the court originally sentenced McCoy, it ordered him to pay a $50 drug fee (Health & Saf. Code, § 11372.7) and a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)). At his Proposition 47 resentencing, he argued that his excess custody credits should be used to reduce his $200 restitution fine and his $50 drug fee at a rate of $30 per day of excess credit. The trial court denied the request. The Court of Appeal disagreed with McCoy that excess custody credits could reduce the restitution fine, but agreed that they should be used to reduce the drug fee. Prior to 2014, Penal Code section 2900.5, subdivision (a) provided that excess custody credits could be used to reduce any fine, including a restitution fine. But the Legislature amended section 2900.5 in 2013 to eliminate the provision permitting custody credits to reduce restitution fines. Accordingly, the trial court correctly found that McCoy’s excess custody credits did not satisfy his $200 restitution fine. However, the trial court erred with respect to the drug fee. A drug fee imposed under Health and Safety Code section 11372.7, subdivision (a) is a fine similar to a penalty assessment and is subject to reduction at a rate of $30 per day of excess custody credit under section 2900.5, subdivision (a).