People v. Diaz

Filed 7/28/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B255951

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA404022)
v.

ROBERT M. DIAZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig E. Veals, Judge. Affirmed.
Bahar Law Office and Sarvenaz Bahar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan
Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of Background and part II of the Discussion.
 A Los Angeles Superior Court jury convicted defendant Robert M. Diaz of
possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).1 He admitted
one prior strike conviction (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)), and
two prior prison terms (§ 667.5, subd. (b)). The superior court sentenced him to a
term of six years in prison, including one year for each of his two prior prison
terms under section 667.5, subdivision (b). The prior felony conviction underlying
one of the section 667.5, subdivision (b) enhancements was a 2009 conviction in
San Bernardino County under former section 666, commonly called petty theft
with a prior.2
While defendant‟s present appeal from the judgment was pending,
California voters approved Proposition 47, “The Safe Neighborhoods and Schools
Act.” As here relevant, Proposition 47 reduced certain nonserious, nonviolent
felonies, including petty theft with a prior, to misdemeanors, and provided a
procedure under section 1170.18, subdivision (f), et. seq., for persons who have
completed a felony sentence for such an offense to apply for reclassification of the
conviction as a misdemeanor.

1
All further section references are to the Penal Code.
2
For ease of reference, we will sometimes refer to defendant‟s prior violation of
former section 666 as petty theft with a prior. In the time period relevant to defendant‟s
prior conviction under section 666, the statute required only a single prior theft-related
conviction for the current petty theft offense to qualify as a felony. Former section 666
provided: “Every person who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony
violation of Section 496 and having served a term therefor in any penal institution or
having been imprisoned therein as a condition of probation for that offense, is
subsequently convicted of petty theft, then the person convicted of that subsequent
offense is punishable by imprisonment in the county jail not exceeding one year, or in the
state prison.” (Stats. 2000, ch. 135, § 134.)

2
 Defendant contends that his 2009 felony conviction of petty theft with a
prior would be a misdemeanor if Proposition 47 had been in effect at the time of
that offense, and that therefore it cannot be the basis of an enhancement of his
sentence under section 667.5, subdivision (b). In the published portion of our
opinion, we conclude that defendant‟s contention that Proposition 47 compels the
striking of his section 667.5, subdivision (b) enhancement is premature. Defendant
must first file an application in the court of conviction under section 1170.18,
subdivision (f) to have his 2009 conviction designated as a misdemeanor. In the
unpublished portion of this opinion, we find that the trial court did not abuse its
discretion in ruling on defendant‟s Pitchess motion.

BACKGROUND
Because the evidence supporting defendant‟s conviction in the present case
is not relevant to this appeal, we observe only that on October 23, 2012, around
9:00 p.m., Los Angeles Police Officers Richard Wilson and Alejandro Soria were
on patrol in a marked black and white vehicle in Lincoln Heights. They stopped
behind a car that was double parked. Defendant exited the passenger side of the
car and appeared startled to observe the officers. He put his hand in his front
waistband, stepped onto the sidewalk, ducked down toward the front of a parked
truck, then stood up and resumed walking. Officer Soria detained defendant while
Officer Wilson walked over to the truck. Officer Wilson discovered a handgun
wedged between the front truck tire and the curb. Although defendant had been
looking straight ahead at a wall while detained by Officer Soria, he declared, “That
is not mine.” When Officer Soria asked what he was referring to, he said,
“Whatever your partner found.” Officer Wilson rendered the handgun safe: there
was one round in the chamber, and seven rounds in the magazine. At trial, the

3
parties stipulated that defendant had been convicted of two felonies: robbery
(§ 211) and petty theft with a prior (§ 666).

DISCUSSION
I. Proposition 47
The voters approved Proposition 47 at the November 4, 2014 general
election, and it became effective the next day. Its declared purpose is “to ensure
that prison spending is focused on violent and serious offenses, to maximize
alternatives for nonserious, nonviolent crime, and to invest the savings generated
. . . into prevention and support programs in K-12 schools, victim services, and
mental health and drug treatment” while at the same time “ensur[ing] that
sentences for people convicted of dangerous crimes . . . are not changed.”
(Deering‟s Cal. Codes Annotated, § 1170.18.) The initiative seeks to accomplish
its goals in four ways: (1) reducing “felonies for [certain] nonserious, nonviolent
crimes like petty theft and drug possession” to misdemeanors; (2) providing a
procedure for persons currently serving a sentence for such crimes to petition the
superior court to recall the sentence and resentence as a misdemeanor;
(3) providing a procedure for persons who have completed a felony sentence for
such an offense to apply to the superior court of conviction to have the prior
conviction designated as a misdemeanor; and (4) using the funds saved by the
sentencing changes to create a Safe Neighborhoods and Schools Fund.
For persons currently serving sentences for a felony conviction that would
be a misdemeanor under Proposition 47, and for persons who have already
completed a sentence for such an offense, the initiative specifies the procedures for
relief. “A person currently serving a sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a misdemeanor under

4
the act that added this section . . . had this act been in effect at the time of the
offense may petition for a recall of sentence before the trial court that entered the
judgment of conviction in his or her case to request resentencing. . . .” (§ 1170.18,
subd. (a), italics added.) The procedure for ruling on a petition for recall requires
the trial court to determine whether the prior conviction would be a misdemeanor
under Proposition 47, in which case “the petitioner‟s felony sentence shall be
recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable
risk of danger to public safety.” (§ 1170.18, subd. (b).)
The procedure for a person who has completed the sentence for a crime
reduced by Proposition 47 likewise contemplates filing in the superior court.
Under section 1170.18, subdivision (f): “A person who has completed his or her
sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act been in effect
at the time of the offense, may file an application before the trial court that entered
the judgment of conviction in his or her case to have the felony conviction or
convictions designated as misdemeanors.” (Italics added.) No hearing on the
application is required “[u]nless requested by the applicant” (§ 1170.18, subd. (h),
and “[i]f the application satisfies the criteria in subdivision (f), the court shall
designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd.
(g).)
For both a petition to recall a sentence under subdivision (a) and an
application to designate a prior felony conviction as a misdemeanor under
subdivision (f), the following provisions of section 1170.18 apply: (1) the
“petition or application under this section shall be filed within three years after the
effective date of the act that added this section or at a later date upon a showing of

5
good cause” (subd. (j)); (2) “[i]f the court that originally sentenced the petitioner is
not available, the presiding judge shall designate another judge to rule on the
petition or application” (subd. (l)); (3) the procedure “shall not apply to persons
who have one or more prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an
offense requiring registration pursuant to subdivision (c) of Section 290” (subd.
(i)); and (4) “[a]ny felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes,” except for the right or own or possess
firearms (subd. (k)).
One of the nonserious crimes affected by Proposition 47 is petty theft with a
prior under former section 666. For most persons, the crime of petty theft with a
prior, for which the punishment is imprisonment in the county jail not exceeding
one year or in the state prison, is eliminated. As amended by the initiative, section
666 applies only if: (1) the person is convicted of petty theft in the current case;
(2) has served a term of imprisonment for a prior conviction of “petty theft, grand
theft, a conviction pursuant to subdivision (d) or (e) of Section 368 [elder abuse],
auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery,
or a felony violation of Section 496”; and (3) “is required to register pursuant to
the Sex Offender Registration Act, or . . . has a prior violent or serious felony
conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of

6
subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or
(e) of Section 368.” (§ 666, subd. (a), (b).)3
Here, relying on information in his probation report in the present case,
defendant contends that his 2009 conviction of petty theft with a prior would have
been a misdemeanor under Proposition 47 had the Act been in effect at the time of
his offense, because his probation report shows that one of the conditions for
felony treatment would not have been met. As noted, under Proposition 47, a
violation of section 666 can be a felony only if: (1) the current conviction is for
petty theft, (2) the defendant has served a term of imprisonment for certain
specified felonies, including robbery, and (3) the defendant is required to register
as a sex offender or has a prior conviction for a violent or serious felony offense
listed in section 667, subdivision (e)(2)(C)(iv), or for elder abuse in violation
section 368, subdivisions (d) or (e). According to defendant‟s probation report in
the present case, the first two conditions for felony treatment would have been met
with respect to the 2009 conviction: defendant was convicted of petty theft, and
his prior conviction underlying section 666 treatment for that offense was robbery.

3
As amended, section 666 provides:
“(a) Notwithstanding Section 490, any person described in subdivision (b) who,
having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d)
or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary,
carjacking, robbery, or a felony violation of Section 496, and having served a term of
imprisonment therefor in any penal institution or having been imprisoned therein as a
condition of probation for that offense, and who is subsequently convicted of petty theft,
is punishable by imprisonment in the county jail not exceeding one year, or in the state
prison.
“(b) Subdivision (a) shall apply to any person who is required to register pursuant
to the Sex Offender Registration Act, or who has a prior violent or serious felony
conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision
(e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.
“(c) This section shall not be construed to preclude prosecution or punishment
pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.”

7
However, defendant‟s prior record as reflected in his probation report does not
include a conviction for any offense for which he would be required to register as a
sex offender, or for any offense listed in section 667, subdivision (e)(2)(C)(iv), or
section 368, subdivisions (d) or (e). Thus, defendant argues that his 2009
conviction would have been a misdemeanor theft if Proposition 47 had been in
effect at the time of the offense, and further asserts that it therefore cannot be
considered a felony for the purpose of an enhancement under section 667.5,
subdivision (b), which requires, inter alia, that a prior term of imprisonment have
been served for a felony conviction.4
Defendant has not filed an application in the San Bernardino Superior Court
(the court of conviction) to have his 2009 conviction designated as a misdemeanor.
Rather, on various grounds, he argues that this court on appeal should declare his
2009 conviction to be a misdemeanor, and should strike the section 667.5,
subdivision (b) enhancement that relies on it.

4
Section 667.5, subdivision (b), provides: “Except where subdivision (a) applies
[governing enhancement of section 667.5, subdivision (c) violent felonies], where the
new offense is any felony for which a prison sentence or a sentence of imprisonment in a
county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in
addition and consecutive to any other sentence therefor, the court shall impose a one-year
term for each prior separate prison term or county jail term imposed under subdivision (h)
of Section 1170 [governing felonies punishable by imprisonment in county jail or for 16
months, 2 or 3 years] or when sentence is not suspended for any felony; provided that no
additional term shall be imposed under this subdivision for any prison term or county jail
term imposed under subdivision (h) of Section 1170 or when sentence is not suspended
prior to a period of five years in which the defendant remained free of both the
commission of an offense which results in a felony conviction, and prison custody or the
imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any
felony sentence that is not suspended. A term imposed under the provisions of paragraph
(5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the
court to allow mandatory supervision, shall qualify as a prior county jail term for the
purposes of the one-year enhancement.”

8
 For several reasons, we conclude that his argument is premature. “When we
interpret an initiative, we apply the same principles governing statutory
construction. We first consider the initiative‟s language, giving the words their
ordinary meaning and construing this language in the context of the statute and
initiative as a whole. If the language is not ambiguous, we presume the voters
intended the meaning apparent from that language, and we may not add to the
statute or rewrite it to conform to some assumed intent not apparent from that
language. If the language is ambiguous, courts may consider ballot summaries and
arguments in determining the voters‟ intent and understanding of a ballot
measure.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
Here, the plain language of section 1170.18 set forth above demonstrates
that both for persons who are currently serving a sentence for a felony reduced by
Proposition 47, and for those who have completed such a sentence, the remedy lies
in the first instance by filing a petition to recall (if currently serving the sentence)
or an application to re-designate (if the sentence is completed) in the superior court
of conviction. (See People v. Shabazz (2015) 237 Cal.App.4th 303, 313-314
(Shabazz) [plain meaning of section 1170.18 requires person who has completed
sentence for a Proposition 47 crime to file an application in the superior court];
People v. Awad (June 29, 2015, G051078) __ Cal.App.4th __ [section 1170.18
vests the trial court, not the appellate court, with authority to reduce a felony for
person currently serving a sentence].) Defendant has completed his sentence for
his 2009 conviction. In order for his 2009 conviction to “be considered a
misdemeanor for all purposes [except firearm rights]” (§ 1170.18, subd. (k)),
which is the necessary predicate of his contention that his section 667.5,
subdivision (b) enhancement must be stricken, he must file an application under

9
section 1170.18, subdivision (f) to have the offense designated as a misdemeanor
in the superior court of conviction (San Bernardino).
Even if the language of Proposition 47 were ambiguous (it is not), extrinsic
evidence supports the interpretation that the voters did not intend to permit an
appellate court to declare in the first instance that a felony conviction for a crime
reduced by Proposition 47 is a misdemeanor. As observed in Shabazz, supra:
“Our analysis is consistent with the express voter concern that certain defendants
with disqualifying prior convictions may not have their felony convictions reduced
to misdemeanors. . . . [T]he enumerated felonies may not be reduced to
misdemeanors when the accused has sustained a specified prior violent or serious
felony conviction. These prior violent or serious felony convictions are set forth in
section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).) And . . . no
reduction to a misdemeanor can occur if the accused has previously sustained a
conviction for an offense requiring sex offender registration. (§ 1170.18, subd.
(i).) [¶] Moreover, [in] section 3 of Proposition 47 . . . the electorate expressed its
anticipation that a thorough review of criminal history and risk assessment of all
convicted felons be conducted before potential resentencing. And, the electorate
made clear that the initiative‟s reduction of certain sentences to misdemeanors had
no application when the accused had prior convictions for specified violent or
serious crimes. [Citation.] [¶] . . . [O]ur record fails to indicate defendant has any
such disqualifying prior convictions. However, when he was sentenced, there was
no issue as to whether he had sustained any disqualifying prior convictions. He
pled no contest and was sentenced prior to the adoption of Proposition 47. The
filing of an application alerts the prosecution to the question of whether there are
any disqualifying prior convictions. Thus, our analysis insures the eligibility

10
determination is made in a hearing[5] where the prosecution is on notice of the
existence of the disqualifying prior conviction issue. Our application of section
1170.18, subdivisions (f) through (h) furthers this express voter concern.” (237
Cal.App.4th at p. 314; see People v. DeHoyos (June 30, 2015, D065961) __
Cal.App.4th __ (DeHoyos) [extrinsic evidence shows Proposition 47 does not
automatically apply to persons currently serving sentences for listed offenses, and
requires using the procedure of section 1170.18].)
Defendant argues section 1170.18, subdivision (f), is not his exclusive
remedy, because it states that a person seeking re-designation after completion of
his sentence “may,” not “must,” file an application in the court of conviction, and
because section 1170.18, subdivision (m) states that “[n]othing in this section is
intended to diminish or abrogate any rights or remedies otherwise available to the
petitioner or applicant.” However, the use of “may” in subdivision (f) does not
suggest that an application in the superior court is optional. For a person who has
completed the sentence for a Proposition 47 crime and wants to have the
conviction designated as a misdemeanor, subdivision (f) permits the filing (“may
file”) of an application for re-designation in “the trial court that entered the
judgment of conviction.” Subdivision (g) requires “the court” (meaning the
superior court of conviction) to designate the offense as a misdemeanor if “the
application satisfies the criteria in subdivision (f).” And subdivision (k) provides
that a “felony conviction that is . . . designated as a misdemeanor under subdivision
(g) [meaning one designated by the superior court of conviction] shall be

5
Although Shabazz refers to a “hearing,” we note that on an application under
section 1170.18, subdivision (f) to have a felony designated a misdemeanor, a hearing is
required only if requested by the applicant. (§ 1170.18, subd. (h).) We do not believe
Shabazz’s reference to a hearing undermines its analysis.

11
considered a misdemeanor for all purposes.” In short, there can be no doubt that to
obtain a re-designation as a misdemeanor for all purposes, section 1170.18 requires
the filing of an application in the superior court of conviction.
The language of section 1170.18, subdivision (m) does not change the result.
The language refers to not abrogating or diminishing “any rights or remedies
otherwise available” (italics added), meaning remedies other than those specified
in section 1170.18. But the relief defendant seeks – a designation of his 2009
felony conviction, for which he has completed his sentence, as a misdemeanor “for
all purposes” (§ 1170.18, subd. (k)) – is a remedy governed by section 1170.18.
Nothing in section 1170.18 suggests that in the first instance the appellate court
can designate a prior felony conviction for a Proposition 47 offense to be a
misdemeanor.
Our interpretation of section 1170.18 disposes of the contention that
defendant is entitled to have his section 667.5, subdivision (b) enhancement in the
current case stricken by this court under People v. Flores (1979) 92 Cal.App.3d
461 (Flores). In Flores, the defendant was sentenced to prison following his
conviction of selling heroin (Health & Saf. Code, § 11352), and his state prison
sentence for that crime was enhanced by one year under section 667.5, subdivision
(b). The basis of the enhancement was defendant‟s prior prison term for a past
felony conviction of possession of marijuana under Health and Safety Code section
11357. (Id. at p. 470.) That statute had since been amended in 1975 to make
possession of marijuana a misdemeanor, and 1976 amendments to other statutes
prescribed the treatment of such a prior conviction. (Id. at p. 471.) Based on the
legislative intent evidenced by the 1976 amendments, the court held that a prior
conviction of possession of marijuana could not be the basis of a section 667.5,
subdivision (b) enhancement.

12
 The court noted that in 1976 the Legislature enacted Health and Safety Code
section 11361.5, subdivision (b), which “authorize[d] the superior court, on
petition, to order the destruction of all records of arrests and convictions for
possession of marijuana, held by any court or state or local agency and occurring
prior to January 1, 1976.” (92 Cal.App.3d at p. 471.) Also in 1976, Health and
Safety Code section 11361.7 “was added to provide in pertinent part that: „(a)
Any record subject to destruction . . . pursuant to Section 11361.5, or more than
two years of age, or a record of a conviction for an offense specified in subdivision
(a) or (b) of Section 11361.5 which became final more than two years previously,
shall not be considered to be accurate, relevant, timely, or complete for any
purposes by any agency or person. . . . (b) No public agency shall alter, amend,
assess, condition, deny, limit, postpone, qualify, revoke, surcharge, or suspend any
certificate, franchise, incident, interest, license, opportunity, permit, privilege,
right, or title of any person because of an arrest or conviction for an offense
specified in subdivision (a) or (b) of Section 11361.5 . . . on or after the date the
records . . . are required to be destroyed . . . or two years from the date of such
conviction . . . with respect to . . . convictions occurring prior to January 1, 1976.‟”
(92 Cal.App.3d at pp. 471-472.)
Based on these amendments, the court concluded that “the Legislature
intended to prohibit the use of the specified records for the purpose of imposing
collateral sanctions.” (Flores, supra, 92 Cal.App.3d at p. 472.) In turn, the court
rejected the People‟s argument that the legislative history suggested that the
Legislature intended to remove only collateral civil, not criminal, sanctions. The
court found the plain language unambiguous: “It is difficult to see how the
language of the statute [Health and Safety Code section 11361.7] could be made
less ambiguous than it is. „[A] record of a conviction for an offense specified . . .

13
shall not be considered . . . for any purposes . . . . No public agency shall . . .
qualify . . . any . . . right . . . of any person because of an arrest or conviction . . . .‟”
(92 Cal.App.3d at p. 472.)
In any event, the court concluded that its interpretation of the plain meaning
was consistent with the purpose of the amendments: “This is not a case where
giving the statutory language its normal and customary meaning results in absurd
consequences inconsistent with the clear legislative intent. To the contrary, the
plain language of the statute conforms exactly to the Legislature‟s „entirely new
comprehensive statutory scheme to govern the treatment of marijuana offenses and
offenders.‟ [Citation.] . . . „The purpose of section 11361.7 subdivision (b) could
not be clearer. As the extensive committee reports leading to the enactment of the
new marijuana law reveal, one of the most significant arguments advanced in favor
of the reform of marijuana laws was that under prior statutes persons convicted of
relatively minor marijuana offenses were subjected to disproportionately severe
sanctions, both criminal and civil; [the] Legislature met this problem directly,
providing in the broadest terms possible that public agencies may not impose any
collateral sanctions on individuals on the basis of the possession of marijuana
convictions or arrests encompassed by the statute.‟ [Citation.] [¶] In view of the
express language of the statute and the obvious legislative purpose, it would be
unreasonable to hold that the Legislature intended that one who had already served
a felony sentence for possession of marijuana should be subjected to the additional
criminal sanction of sentence enhancement.” (Flores, supra, 92 Cal.App.3d at p.
473, italics deleted.)
Flores is clearly distinguishable from our case. We express no opinion
whether Flores’ reasoning suggests that a felony conviction which has been
designated a misdemeanor under section 1170.18, subdivision (k) can be used to

14
support a section 667.5, subdivision (b) enhancement. We observe only that the
reasoning of Flores does not suggest defendant is entitled to have this court
designate his 2009 conviction to be a misdemeanor. Unlike the statutes at issue in
Flores, the plain meaning of section 1170.18, and the relevant extrinsic evidence,
demonstrate that defendant must file an application to obtain such a designation in
the superior court of conviction.
We also find no merit in defendant‟s contention that he is entitled to a
reduction of his 2009 felony conviction under In re Estrada (1965) 63 Cal.2d 740,
and other decisions applying it. As the California Supreme Court has explained,
Estrada “established an exception to the general rule that no part of the Penal Code
is retroactive. (§ 3 [no part of the Pen. Code is retroactive „unless expressly so
declared‟]; [citation].) In Estrada, we held that „where [an] amendatory statute
mitigates punishment and there is no saving clause, the rule is that the amendment
will operate retroactively so that the lighter punishment is imposed.‟ [Citation.]
[¶] . . . Estrada represents „an important, contextually specific qualification to the
ordinary presumption that statutes operate prospectively: When the Legislature
has amended a statute to reduce the punishment for a particular criminal offense,
we will assume, absent evidence to the contrary, that the Legislature intended the
amended statute to apply to all defendants whose judgments are not yet final on the
statute‟s operative date. [Citation.]” (People v. Hajek and Vo (2014) 58 Cal.4th
1144, 1195-1196 (Hajek).) For purposes of the Estrada rule, a judgment is “not
final so long as the courts may provide a remedy on direct review [including] the
time within which to petition to the United States Supreme Court for writ of
certiorari.” (In re Pine (1977) 66 Cal.App.3d 593, 594.)
Here, defendant is not appealing from the judgment arising from the 2009
conviction. That judgment was final long before the operative date of Proposition

15
47. Thus, the presumption of Estrada does not apply to compel a reduction of his
2009 conviction to a misdemeanor. Defendant argues that his 2009 conviction is
not final “in the context of this case,” because it was used to support a section
667.5, subdivision (b) enhancement that is part of the judgment he is appealing.
But that reasoning stretches the Estrada rule to the breaking point. The California
Supreme Court has “emphasized [the] narrowness” of Estrada, and explained that
“„Estrada is today properly understood, not as weakening or modifying the default
rule of prospective operation codified in section 3, but rather as informing the
rule‟s application in a specific context by articulating the reasonable presumption
that a legislative act mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments. [Citation.]‟ [Citation.]” (Hajek,
supra, 58 Cal.4th at p. 1196, italics added.) As clarified by our Supreme Court,
Estrada simply does not apply in the procedural posture of defendant‟s case.
Moreover, even if it did, its application would be defeated by the intent of
Proposition 47. Although the absence of a savings clause is evidence that a statue
was intended to operate retroactively, the absence of such a clause “does not end
„our quest for legislative intent.‟ „Rather, what is required is that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court can discern
and effectuate it.‟” (People v. Nasalga (1996) 12 Cal.4th 784, 793.) Here, as we
have explained, the plain language of Proposition 47 and the extrinsic evidence
surrounding its passage demonstrate that neither persons currently serving a
sentence for a listed offense, nor those who have completed such a sentence, are
automatically entitled to reduction in punishment. (See Shabazz, supra, 237
Cal.App.4th at pp. 313-314, DeHoyos, supra.) Thus, even if Estrada were
construed to apply to the procedural posture of this case, it would not require us to
reduce defendant‟s 2009 conviction to a misdemeanor.

16
 Defendant contends that not striking his section 667.5, subdivision (b)
enhancement would be a violation of his constitutional his right to equal
protection. As best we understand the argument, it is that Proposition 47 is
intended to reduce the punishment for petty crimes and provide prison space for
persons who commit more serious crimes. Defendant extrapolates from this
purpose two purportedly similarly situated groups for whom the voters intended to
reduce punishment: (1) those whose sentence for their current crime (e.g., petty
theft with a prior) is governed by Proposition 47 and who receive a misdemeanor
sentence, and (2) those whose sentence for their current crime is enhanced for a
prior conviction (e.g., petty theft with a prior) that would have been a misdemeanor
had Proposition 47 been in effect when that prior crime was committed. He
contends that he is a member of the second group, and that there is no rational
basis to give the first group a reduced sentence under Proposition 47, while at the
same time giving the second group an enhanced sentence.
To the extent defendant is contending that equal protection compels this
court to strike his section 667.5, subdivision (b) enhancement, the argument fails.
He creates his purportedly similarly situated groups based on a misreading of
Proposition 47‟s intent. In short, by the terms of Proposition 47, defendant is not a
member of his second identified group, because he is not yet deemed to be a
person whose prior felony would have been a misdemeanor if Proposition 47 had
been in effect when he committed the crime. The voters‟ intent (the signpost by
which defendant identifies his asserted similarly situated groups) is clear: until he
files an application under section 1170.18, subdivision (f) in the court of
conviction, and receives a designation of the prior conviction as a misdemeanor
under section 1170.18, subdivision (g), his 2009 conviction remains a felony, and
is not designated as a misdemeanor “for all purposes.” (§ 1170.18, subd. (k).)

17
Thus, whatever merit his equal protection argument might have for someone
whose prior conviction has been designated a misdemeanor, the argument does not
apply here.
Defendant contends that requiring him to obtain a designation from the San
Bernardino Superior Court that his 2009 conviction is a misdemeanor, and then
requiring him to file a habeas corpus petition in Los Angeles Superior Court (the
court that sentenced him in the present case) or perhaps in this court to seek to
have his section 667.5, subdivision (b) enhancement stricken, is a waste of judicial
resources and an unreasonable reading of section 1170.18. We recognize the
burden, but do not find this result so absurd as to suggest that we read into section
1170.18 an exception for defendant‟s situation when it is not there.6
Finally, if he is required to file an application in the San Bernardino Superior
Court, defendant requests that we stay this appeal while he does so. However, we
decline to keep this case in abeyance for an undetermined period of time while
defendant seeks to have his 2009 conviction declared a misdemeanor.

6
We asked the parties to brief whether we should stay the appeal pending further
order of this court, and remand the case to the superior court (with an expedited time
frame) for the limited purpose of permitting defendant to file an application under section
1170.18, subdivision (f), to have his 2009 conviction designated a misdemeanor. (See
People v. Awad, supra, __ Cal.App.4th __ [staying appeal and remanding case to the
superior court to hear a previously filed petition for resentencing under section 1170.18].)
Both parties opposed a remand. Although they made several differing arguments, they
both agreed that a remand was unworkable if for no other reason than that this appeal is
from a judgment of the Los Angeles Superior Court, and the court in which defendant
must file his application is the San Bernardino Superior Court, which is outside the
jurisdiction of this appellate district and is not involved in this appeal. We agree.
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 II. Pitchess Motion
At defendant‟s request, we have reviewed the in camera hearing held on
defendant‟s Pitchess motion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
We conclude that the trial court did not abuse its discretion in its handling of the
motion.

DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION

WILLHITE, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.

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