Do Excess Custody Credits Apply to Parole if 1437 Granted?
As the astute or knowledgeable reader may be aware, in the Proposition 47 context, when a judge reclassifies a felony as a misdemeanor for someone serving time, a “time-served” situation with excess custody credits often arises. Such excess custody credits are not applied to eliminate or reduce that prisoner’s post-release community supervision (PRCS) or parole period as would otherwise be permitted under Penal Code § 2900.5. This is because judges have interpreted the legislative intent behind Proposition 47 as not contemplating 2900.5. See, i.e., People v. Morales (2016) 63 Cal.4th 399, at 406.
In a Nutshell: If a motion for resentencing under SB 1437 is granted and defendant is released for time served, the judge has discretion whether to apply excess custody credits, if any, under Penal Code § 2900.5, as credit against the parole or PRCS period.
As the reader may know, Penal Code § 2900.5 provides that “(1) the person is entitled to credit for time served, and (2) the credit can reduce or eliminate the period of parole.”
Does the same approach apply for someone who is resentenced under Senate Bill 1437 and receives an immediate release “time-served” sentence? Does 2900.5 apply to reduce or even eliminate one’s period of post-release community supervision or parole? How have our courts interpreted 1437’s intent in light of 2900.5?
The Fourth Appellate District case of People v. Patty Ann Lamoureux (2020 DJDAR 12043) answered this question. In 2013, a jury in Riverside County convicted Ms. Lamoureux of conspiracy to commit murder (Penal Code § 182) and felony murder (Penal Code § 187(a)). It found true the special circumstance allegation that: (1) the murder was perpetrated during the commission of a robbery and a burglary (Penal Code § 190.2(a)(17)); and (2) Lamoureux, though not the actual killer, had an intent to kill or acted with reckless indifference to human life and was a major participant in the predicate felony.
In April 2013, the judge, John D. Molloy, sentenced Ms. Lamoureux to prison for life without the possibility of parole.
Riverside Superior CourtMs. Lamoureux appealed the convictions to the Fourth Appellate District Court, which affirmed her murder and conspiracy convictions, but concluded the evidence was insufficient to support the jury’s finding that she had an intent to kill or acted with reckless indifference to human life. Therefore, the court concluded she was not eligible for a sentence of life without the possibility of parole. On remand to Judge Molloy, he sentenced Ms. Lamoureux to 25 years to life.
In January 2019, after Senate Bill 1437 became law, Ms. Lamoureux filed a petition for resentencing because she was prosecuted under a theory of felony murder, she was not the actual killer, she did not have the intent to kill and she was not a major participant who acted with reckless indifference to human life. Her case, in other words, was a textbook example of eligibility for resentencing under SB 1437.
Judge Molloy indeed resentenced her, vacating her felony murder conviction and resentenced her to the upper term of six years on the conspiracy conviction. She was then released for time served and although she had excess custody credits, he exercised his discretion to place her on parole supervision for the statutory maximum of three years.
Ms. Lamoureux appealed this ruling to be ordered to parole for three years, arguing that her excess custody credits should offset, i.e., reduce or eliminate, her three-year parole supervision under Penal Code § 2900.5(a).
The Fourth Appellate District affirmed Judge Molloy’s ruling. The Fourth Appellate District cited to and agreed with People v. Wilson (2020) 53 Cal.App.5th 42, wherein the First Appellate District concluded that a court is not required to offset the parole supervision period of a person who is resentenced under Senate Bill 1437. More specifically, the court in Wilson found that Senate Bill 1437 does not mandate application of 2900.5, so the judge has discretion whether to apply it.
The Wilson court reminded the reader of the purpose of parole: “to assist in the parolee’s transition from imprisonment to discharge and reintegration into society.” The court in Lamoureux added that parole promotes “positive citizenship.”
We bring this short summary to the reader’s attention because, surely, this issue will arise in the future (perhaps also in the context of resentencing for military veterans) and the First and Fourth Appellate Districts have already addressed it.
The citation for the Fourth Appellate District Court ruling discussed above is People v. Patty Ann Lamoureux (4th App. Dist., 2021) 57 Cal. App. 5th 136, 271 Cal. Rptr. 3d 222.
For more information about custody credit issues, please click on the following articles:
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