STATEMENT OF FACTS

In 1996, real party in interest (Rangel) was convicted of felon in possession

(former § 12021, subd. (a)(1)) and two misdemeanors. As a “third striker” (former § 667,

subds. (b) & (e)), he received an indeterminate sentence of 25 years to life.

In 2012 the electorate, by initiative measure (Proposition 36), amended section 667

so that many of those defendants who have two prior strikes but whose current conviction

is not for a “serious and/or violent felony” are subject only to a doubled base term

sentence (§ 667, subd. (e)(1)) rather than the minimum 25-to-life terms reserved for more

serious current violators. (§ 667, subd. (e)(2)(A)(ii).) At the same time, the electorate

added section 1170.126 as a mechanism by which inmates sentenced as “third strikers”

under the old law could seek to be resentenced under the new provisions, if they would

1 All subsequent statutory references are to the Penal Code.

2 Real party in interest filed a Request for Judicial Notice with this court on June 10, 2015. We hereby grant said request.

2 have been subject only to the lesser term had they been sentenced under the new law and

met specified other requirements.

In November 2012 Rangel filed such a request, which the court granted on April 9,

2014. Rangel was resentenced to the upper term of three years for the weapons offense,

doubled to six years, plus three additional prior prison term enhancements (§ 667.5,

subd. (b)) for a total of nine years.

This order is not in dispute.3 Due to the nature of his current conviction, Rangel

would normally have been subject upon release to a period of “community supervision”

under section 3451, part of the “Postrelease Community Supervision Act of 2011” (the

Act). That statute provides that except for more serious offenders, as described, inmates

released from prison on or after October 1, 2011, are subject to a new program of

community supervision for a period not to exceed three years. (§ 3451, subd. (a).)

Serious offenders remain subject to the existing system of parole governed by

sections 3000 ff. The trial court here offered Rangel the choice of whether to participate

in the community supervision program, but Rangel declined.4

3 The court’s records do not reflect that any notice of appeal was filed from the order.

4The trial court explained to Rangel the benefits of supervision, including the possibility of referrals to counseling and substance abuse assistance as well as job finding help. It also pointed out that if Rangel did not comply with the conditions of supervision, he could be returned to custody. Rangel declined.

3 The trial court’s remarks reflected its belief that having served over 18 years in

custody, Rangel had in essence completed both his new term and any period of

postconviction supervision to which he might otherwise be subject. Section 2900.5,

subdivision (a), provides generally that all periods of time spent in confinement by a

convicted defendant are to be “credited upon his or her term of imprisonment.” “Term of

imprisonment” is then defined to include “any term of imprisonment, including any

period of imprisonment prior to release on parole and any period of imprisonment and

parole, prior to discharge . . . .” Hence, if an inmate accrues excess credits stemming

from actual confinement, the excess is applied to reduce the maximum statutory period of

parole. (See In re Ballard (1981) 115 Cal.App.3d 647, 649 (Ballard).) The court

therefore presumably applied Rangel’s excess credits to wipe out any period of

community supervision, which could not exceed three years. (§ 3455, subd. (e).)

It cannot be disputed that community supervision and parole serve precisely the

same purpose—to facilitate the successful reintegration into society of those released

from prison, while protecting the public by active supervision of the former inmate.

(§§ 3000, subd. (a)(1) [parole], 3450, subd. (b)(5) [community supervision].) Indeed, the

express purpose of the Act was simply to shift the responsibility for supervising certain

released inmates to local jurisdictions. Mandated conditions for community supervision

mirror those typically imposed on parolees, such as warrantless searches, waiver of

extradition, and weapons and travel restrictions. (§ 3453, subd. (h).) Both programs of

supervision are limited to three years for most offenders. (§§ 3000, subd. (b)(2)(A),

4 3455, subd. (e).) Former inmates under both programs may be returned to custody for

violating the conditions of release. (§§ 3057, subd. (a), 3455, subd. (a)(1).) Several

statutes, indeed, apply equally to both sets of offenders and treat them as equivalent.

(E.g., § 3015, subd. (d) [authorizing participation in a “reentry court” program by both

groups].)

The People’s challenge to the trial court’s failure to place Rangel under

community supervision was based on the theory that such supervision is by statute

mandatory, which is not disputed, to the extent that parole is also mandatory. The People

also pointed out that section 2900.5, subdivision (a), as quoted above, does not include

the term of community supervision as one which may be reduced by excess credits,

although it does expressly include the period of parole.5

Defendant Rangel in this case casts the problem in terms of a violation of the equal

protection clause. He asserts that he is similarly situated with those released from prison

who are subject to parole, and that there is no rational basis for applying excess credits to

a parole term but not a community supervision term. We agree.

To the extent that Rangel argues that the enactment of section 1170.126 created a

new class of defendants/inmates in the “excess credits” situation—that is, “third strikers”

who obtained resentencing after serving many years in prison but who would be subject to

5 Section 2900.5 was amended in 2011 to include periods spent on home detention as credits, but was not amended to address the creation of the community supervision program.

5 postrelease community supervision rather than parole6—the proposed class is too

narrow.7 While it is probably true that the resentencing provisions of section 1170.126

will substantially increase the number of former inmates with excess credits, “third

strikers” are not a distinct group from those who have gained credits through correction

of errors, or who have simply served more presentence time than the length of the

sentence they ultimately receive.8 It is from this perspective that we analyze the equal

protection argument: are parolees and those subject to community supervision similarly

6 Because only those “third strikers” whose most recent offense is relatively minor can seek resentencing, and such offenders are also subject to community supervision rather than parole.

7 It is hard to disagree with the trial court’s view that a period of supervision and assistance would be of benefit to real party in interest Rangel after his extended incarceration. Arguably a provision denying the application of “excess credits” to a community supervision claim would be logical for inmates who had served lengthy terms before being resentenced. However, section 2900.5 does not create subclasses of “excess credits” inmates subject to community supervision, and we do not decide whether such subclasses could properly be created by the Legislature. We also note that not all inmates sentenced as third strikers and later resentenced will have served terms substantially longer than that to which they are resentenced; this depends on the timing of the conviction as well as the sentence eventually imposed. Thus, a “bright line” might well be difficult to draw.

8 Acting upon a hint from our Supreme Court, and with the concurrence of the Attorney General, this court recently vacated a defendant’s conviction for the substantive gang felony described in section 186.22, subdivision (a). The defendant had acted alone, and in People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court held that the statute could only be violated if the defendant acted in association with at least one other gang member. Hence, the defendant’s conduct did not constitute a crime and the conviction had to be vacated. (See People v. Mutch (1971) 4 Cal.3d 389.) Given the uncertainty prior to Rodriguez, a considerable number of defendants convicted of violating section 186.22, subdivision (a), may eventually wind up with “excess credits” after successfully attacking the conviction.

6 situated, and if so, may “excess credits” be applied to parole terms but not to the period to

be served on community supervision?

We have pointed out above some of the obvious similarities between parole and

community supervision both with respect to function and intent. The People summarize

the bases for distinguishing between those subject to parole and those eligible for

community supervision (primarily the type of conviction offense) and note some of the

distinctions between the two programs, e.g., that parolees, but not those subject to

community supervision, may be returned to prison.9 These arguments are unpersuasive.

In our view all forms of postrelease supervision that subject inmates to

substantially comparable restrictions, control, and potential re-incarceration are

equivalent for analytical purposes and persons subject to the types of postrelease

supervision discussed are similarly situated. The next question is whether the distinction

for which the People argue may be lawfully drawn.10

9 As noted above, the latter group may also be returned to custody, but in city or county facilities. Among the other distinctions cited is that while community supervision may be terminated early by the court (§ 3456, subd. (a)), “the court does not have the authority to terminate parole early.” This is a specious argument; although courts cannot terminate parole early, a parolee’s good behavior for a specified period triggers automatic early termination of parole unless the Board of Parole Hearings determines that parole should be continued. (See, e.g., § 3001, subd. (a)(1).) Thus, early termination is available to both groups.

10 In People v. Espinoza (2014) 226 Cal.App.4th 635, Division Six of the Second District held that inmates subject to community supervision were not entitled to apply excess credits against that period. Although the discussion is in part framed in terms of “equal protection,” the court’s analysis focuses on the permissibility of distinguishing between inmates sentenced before the Act (and thus subject to parole) and those [footnote continued on next page] 7 The Constitution11 does not forbid uneven treatment of persons or groups. The

essence of an equal protection claim is that two groups, similarly situated with respect to

the law in question, are treated differently. (Grossmont Union High School Dist. v. State

Dept. of Education (2008) 169 Cal.App.4th 869, 892.) While most classifications will be

upheld if there is a “rational basis” for drawing distinctions, a law that interferes with a

fundamental constitutional right or involves a suspect classification is subject to strict

scrutiny and must be justified by a compelling state interest. (People v. Lynch (2012) 209

Cal.App.4th 353, 358.)

Numerous cases uphold the prospective application of statutes reducing the

punishment for an offense by applying the “rational basis” test and finding prospective

application of the law to be justified. In such cases the courts must uphold legislation if

any reasonably conceivable set of facts could supply justification for the distinctions.

(People v. Turnage (2012) 55 Cal.4th 62, 74.) However, other cases apply the “strict

scrutiny” test to laws that result in different periods of custody for those in the same time

frame. (See cases collected in People v. Cruz (2012) 207 Cal.App.4th 664, 676-679;

[footnote continued from previous page] sentenced thereafter (and thus subject to community supervision). We have no quarrel with the court’s view that the ex post facto clause does not bar drawing such a distinction. Therefore, there is no need to express any view on the correctness of the result in Espinoza. The same is true for the decision in People v. Tubbs (2014) 230 Cal.App.4th 578, 584-586, which follows Espinoza without considering an equal protection claim.

11Fourteenth Amendment to the United States Constitution; Article I, section 7, subdivision (a) of the California Constitution.

8 cf. People v. Turnage, supra, at p. 74.) In our view a distinction that frees one offender

from postrelease supervision while imposing potentially onerous and invasive restrictions

on the other does impact a fundamental right. However, under either standard the

distinction affected here cannot withstand examination.

Here the People attempt to justify the distinction by arguing that parole is “more

onerous” than community supervision, focusing on the potential return to state prison and

the possibility that parole may “far exceed three years.” But we have noted that persons

subject to community supervision may also be returned to custody; and for the majority of

parolees, the standard parole term is three years. We have also noted that parole may be

terminated early, contrary to the People’s assertion. Thus, the argument that the

Legislature may have rationally considered that allowing parolees to apply their excess

credits to the “more onerous” parole while refusing this remedy to those under community

supervision does not hold water. Both programs are currently designed to release inmates

from formal supervision as soon as reasonably possible, depending on their behavior and

consistent with public safety, and there is no statutory restriction on the conditions that

may be imposed on those under community supervision—other than those which also

apply to parole conditions.12 The policy considerations applicable to the two groups are

identical and offer no basis for unequal treatment.

12 Section 3454, subdivision (a), allows the “supervising county agency” to impose conditions of supervision in addition to those required by section 3453, so long as these discretionary conditions are “reasonably related to the underlying offense . . . or to the offender’s risk of recidivism, and the offender’s criminal history.” This is generally [footnote continued on next page] 9 Another consideration is that if there were a reason to distinguish between the two

groups with respect to excess credits, the more logical distinction would be to afford a

reduced or eliminated period of supervision to those released after relatively minor

convictions. But compared to those subject to community supervision, parolees have in

general suffered the more serious recent convictions, and therefore arguably are more in

need of supervision. Yet under the People’s approach, these parolees are entitled to apply

excess credits to the parole term, while those subject to community supervision after less

serious offenses are not.

The People’s argument is also undercut by the fact that the benefits of

section 1170.126 are not available to the most violent offenders13 and inmates found by

the court to “pose an unreasonable risk . . . to public safety” may not be resentenced.

(§ 1170.126, subd. (f).) That is, resentencing (and thus community supervision) is

reserved for inmates deemed minimal risks for violent recidivism. On the other hand, the

only inmates currently subject to parole are serious or violent felons, those who have been

[footnote continued from previous page] consistent with the requirement that conditions of parole are valid unless they relate to conduct not itself criminal, has no relationship to the crime of which the parolee was convicted, and requires or forbids conduct which is not reasonably related to future criminality. (See People v. Lent (1975) 15 Cal.3d 481, 486.)

13 Pursuant to subdivision (e)(3) of section 1170.126 and its cross-reference to section 667, subdivision (e)(2)(C)(iv), inmates are ineligible if they have been convicted of violent sex offenses, specified child sex offenses, any homicide or solicitation to commit murder, assaults with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any other felony punishable by life imprisonment or death.

10 sentenced as “third strikers,” high risk sex offenders, and mentally ill offenders. (§ 3451,

subd. (b).)

To summarize, the most recent conviction or convictions of all inmates subject

to community supervision are relatively minor, and inmates resentenced under

section 1170.126 have never been convicted of egregiously violent offenses; they have

further been currently found not to present undue risk to the public. By contrast, inmates

subject to parole all fall into one or more categories of serious and obvious risk. Yet the

latter can use excess credits to reduce or wipe out parole supervision, while under the

People’s approach inmates subject to community supervision cannot so use their excess

credits. Even under the “rational basis” test, the distinction drawn by the People is simply

unreasonable.14

When a court determines, as we do, that a statutory classification violates the

constitutional guarantee of equal protection of the laws, it has a choice of remedies. It

may either withdraw the benefits of a statute from the favored group, or extend the benefit

to the excluded class, and may also invalidate a statute or expand its reach. (People v.

Hofsheier (2006) 37 Cal.4th 1185, 1207; Burnham v. Public Employees’ Retirement

System (2012) 208 Cal.App.4th 1576, 1588.) In this case the choice is relatively simple.

In enacting subdivision (a) of section 2900.5, the Legislature clearly recognized that

14 It may be suggested that inmates released to parole have the opportunity to participate in prerelease transitional programs not available to inmates such as petitioner whose release was not predictable so that parole might be less essential for their success after release. There is no evidence in the record to this effect.

11 persons who have served time in excess of that to which they were eventually sentenced

should receive credit for that time against postrelease periods of restriction and control.

We would extend that rule to those facing community supervision. Hence, real party in

interest Rangel was not subject to such supervision.

DISPOSITION

The petition is denied.

CERTIFIED FOR PUBLICATION

McKINSTER J. We concur:

HOLLENHORST

Acting P. J.

MILLER

J.

12