People v. Motsenbocker CA4/1

Filed 11/4/15 P. v. Motsenbocker CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064877

Plaintiff and Respondent,

v. (Super. Ct. No. SCD241912)

MATTHEW MOTSENBOCKER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.

Fraser, Judge. Affirmed as modified.

Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal, Tami Hennick and Amanda E. Casillas, Deputy Attorneys General,

for Plaintiff and Respondent.

Matthew Motsenbocker appeals a judgment following his jury conviction of

assault with a deadly weapon, two counts of receiving stolen property, petty theft with
three prior theft convictions, unlawful possession of an access card, and various other

offenses described below. On appeal, Motsenbocker contends the trial court erred by: (1)

excluding from evidence a portion of a recorded telephone conversation during which he

stated a law enforcement officer had jumped through the vehicle's window and threatened

to kill him; (2) sentencing him to a prison term for unlawful possession of an access card

because that count was alleged as only a misdemeanor; and (3) imposing and staying a

prison prior enhancement rather than striking it. He also asserts that his sentences for

four convictions should be reduced to misdemeanors pursuant to Proposition 47 because

the judgment in his case is not yet final. In Case No. D068122, which we consider with

this appeal, we address Motsenbocker's related petition for habeas corpus based on his

counsel's purported mistake regarding the maximum sentence that could be imposed for

the counts alleged against him, which mistake purportedly caused him to reject a plea

offer made by the prosecution.

FACTUAL AND PROCEDURAL BACKGROUND

On July 6, 2012, Nicholas Wayman, a bail enforcement agent, requested the

assistance of Deputy U.S. Marshal Don Allie to apprehend Motsenbocker, a fugitive with

an outstanding felony warrant for his arrest. Allie and Deputy U.S. Marshal Kristopher

Stephens met Wayman at an apartment complex where Lindsey Hagberg, Motsenbocker's

girlfriend, resided. They saw Hagberg drive away in a white Volvo.

Allie, driving an undercover black Dodge Durango; Stephens, driving an

undercover black Dodge Charger; and Wayman, driving a white Kia Optima, followed

Hagberg to a shopping center on Balboa Avenue. Hagberg stopped and spoke with

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Motsenbocker, who was standing next to a stolen Toyota FJ Cruiser. He got in the stolen

vehicle, drove to a nearby cul-de-sac, and parked it there. Hagberg, who followed

Motsenbocker to the cul-de-sac, then picked him up in her Volvo.

While Motsenbocker and Hagberg were in the cul-de-sac, Allie and Stephens put

on their body armor vests, which identified them as "U.S. Marshals." Both Allie and

Stephens also displayed U.S. Marshal badges on their apparel. They then contacted local

law enforcement to inform them of what they were doing and to request assistance.

Allie, Stephens, and Wayman followed Hagberg when her Volvo left the cul-de-sac.

Wayman could not identify the vehicle's passenger because the passenger seat was tilted

back low. Allie saw movement in the passenger's seat.

Based on his observations, Allie decided to initiate a traffic stop of the Volvo and

activated his vehicle's emergency lights and siren. Stephens also activated his vehicle's

emergency lights, but not his siren because he was attempting to communicate on his

radio. Both vehicles' emergency lights were red and blue lights located at the top of the

front windshield. Their vehicles also had "wigwag" lights in their front headlights that

flash in a strobe-like fashion. Wayman heard the siren and saw the flashing lights.

Despite the flashing lights and siren, Hagberg did not stop her vehicle. She knew

Motsenbocker had outstanding arrest warrants and thought law enforcement agents were

following her in the Dodge Durango. She continued driving from southbound Interstate

805 onto Balboa Avenue, pulled behind a flatbed semi-truck, and maneuvered between

that truck and Allie's Durango to the front of the lighted intersection. With his vehicle's

lights and siren still activated, Allie drove his vehicle forward to see the driver's side of

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the Volvo. Hagberg told Motsenbocker she wanted to get out of her vehicle. She then

jumped out and walked toward Allie with her hands up in the air. She complied with

Allie's command to lie on the ground. Allie then approached the Volvo and saw

Motsenbocker move from the front passenger's seat to the driver's seat. Allie ordered

Motsenbocker to get out of the vehicle, but he did not comply. Allie reached through the

Volvo's open driver's window with his left hand (without his gun drawn) in an attempt to

grab the keys and disable it, but Motsenbocker sped off with Allie hanging onto the

driver's side of the vehicle. The Volvo accelerated through the traffic light, traveling

about 25 miles per hour, and then Stephens heard a pop and saw Allie "go flying across

the road." As Motsenbocker drove off in the Volvo, a percipient witness on a nearby

sidewalk heard a shot. Allie fell onto the street and rolled into the center median.

Motsenbocker continued driving, crossing the center median, heading into oncoming

traffic and then crossing back over into westbound traffic, where he then stopped the

Volvo. He got out of the Volvo and yelled, "Help me, I've been shot." Stephens arrested

Motsenbocker.

Wayman came to Allie's aid, saw Allie's firearm on the road, and secured it. Allie

appeared unresponsive, had a gash on his head, and was bleeding. Allie was taken to a

hospital, where his condition was diagnosed as an acute intracranial hemorrhage with

subdural hematomas, a subarachnoid hemorrhage, a neck strain, scalp lacerations, facial

abrasions, bilateral upper extremity abrasions, and a questionable loss of consciousness.

Toxicology tests showed Motsenbocker had ingested methamphetamine within 24

hours of his arrest on July 6, 2012. He also had morphine and codeine in his system,

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which was indicative of heroin use. After the incident, he told paramedics he had used

heroin two hours earlier.

Stephens found a stolen Glock handgun, apparently loaded, on the passenger's seat

of the Volvo. Officers found the case for that handgun in the stolen FJ Cruiser

Motsenbocker was driving. His DNA profile matched that found on the handgun.

Officers also found two knives on the floorboard of the driver's seat of the Volvo.

A consolidated amended information charged Motsenbocker with one count of

assault with a deadly weapon (Pen. Code, § 245, subd. (a)),1 two counts of possession of

a firearm by a felon (§ 29800, subd. (a)(1)), one count of unlawful driving or taking a

vehicle (Veh. Code, § 10851, subd. (a)), two counts of receiving stolen property (§ 496,

subd. (a), two counts of burglary (§ 459), one count of possession of ammunition by a

prohibited person (§ 30305, subd. (a)(1)), one count of possession of a forged document

(§ 475, subd. (a)), one count of possession of a completed check with intent to defraud

(§ 475, subd. (c)), one count of unlawfully acquiring or retaining possession of an access

card (§ 484e, subd. (c)), and one count of petty theft with three prior theft convictions

(§§ 484, 666). The information also alleged that in committing count 1 Motsenbocker

personally inflicted great bodily injury on Allie (§§ 12022.7, subd. (a), 1192.7, subd.

(c)(8)) and used a vehicle as a deadly weapon (§ 1192.7, subd. (c)(23)), and he

committed the offenses alleged in counts 1 through 12 while he was released from

custody on bail (§ 12022.1, subd. (b)). It also alleged he had served a prior prison term

1 All statutory references are to the Penal Code unless otherwise specified.

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(§ 667.5, subd. (b)), had been previously convicted of a serious felony (§ 667, subd.

(a)(1)), and had a prior strike conviction within the meaning of the three strikes law

(§§ 667, subd. (b)-(i), 1170.12, 668).

At trial, the prosecution presented evidence substantially as described above. In

his defense, Motsenbocker presented his testimony that he had acted in self-defense. He

stated he was under the influence of drugs on the day of the incident. When he met

Hagberg that morning in the parking lot, she was nervous because she saw two black cars

following her. Motsenbocker had also seen the two black cars when he was driving the

FJ Cruiser. He left the FJ Cruiser at the apartment complex and got in Hagberg's Volvo.

Hagberg, driving the vehicle, saw the two black cars again and said, "What the fuck's

going on?" As they drove onto the freeway, Motsenbocker could still see the black

Dodge Durango behind them. He testified he looked for any sign it was a law

enforcement vehicle but did not see any. Because its windows were blacked out, he

thought they could be followed by gangsters.

Hagberg said she saw lights and exited the freeway. She was "freaking out" and

suddenly slammed on the brakes and jumped out of the Volvo, leaving its driver's side

door open and the car in gear. As the car rolled forward, Motsenbocker jumped into the

driver's seat to stop the car. Motsenbocker testified he then saw a man reaching for the

car keys. The man stated, "I'm going to fucking kill you." When Motsenbocker's foot

slipped off the brake, the car could have rolled forward. At that moment, the man shot

him. Motsenbocker then pressed the gas pedal to get away because he felt he was in

danger. He stopped a short distance later, got out of the car, and laid on the ground,

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screaming, "I've been shot, I've been shot. I can't breathe." Motsenbocker testified that

the man (i.e., Allie) did not show him a badge or otherwise identify himself as law

enforcement. He did not try to grab or hit Allie when Allie reached into the car.

Motsenbocker knew he had warrants for his arrest, but did not know the FJ Cruiser was

stolen.

The jury found Motsenbocker guilty of all the charges. The jury found true the

allegations that in committing count 1 Motsenbocker personally inflicted great bodily

injury on Allie (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and used a vehicle as a

deadly weapon (§ 1192.7, subd. (c)(23)), and he committed the offenses alleged in counts

1 through 12 while he was released from custody on bail (§ 12022.1, subd. (b)).

Motsenbocker admitted he had served a prior prison term (§ 667.5, subd. (b)), had been

previously convicted of a serious felony (§ 667, subd. (a)(1)), and had a prior strike

conviction within the meaning of the three strikes law (§§ 667, subd. (b)-(i), 1170.12,

668). On September 20, 2013, the trial court imposed a total prison term of 29 years four

months. Motsenbocker timely filed a notice of appeal.

DISCUSSION

I

Exclusion of Portion of Recorded Telephone Call

Motsenbocker contends the trial court erred by excluding from evidence a portion

of a recorded telephone conversation during which he stated a law enforcement officer

had jumped through the vehicle's window and threatened to kill him. He argues that

evidence should have been admitted pursuant to Evidence Code sections 356 and 791.

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 A

On direct examination, Motsenbocker testified he did not know who was

following him, claiming the vehicles behind him had tinted windows and did not have

law enforcement lights, sirens, or exempt license plates. On cross-examination,

Motsenbocker denied he told Hagberg she should jump out of the vehicle if she could not

handle the situation and denied saying he did not want to go to jail. He also denied

knowing the FJ Cruiser he had been driving was stolen. The prosecutor then impeached

Motsenbocker with evidence showing he told a friend in a recorded telephone call while

he was in jail that "I was going to the stolen FJ Cruiser that we got." He also impeached

Motsenbocker with evidence from the same recorded telephone call showing he told his

friend: "We got on the freeway and Lindsey started freaking out. I'm like, 'What are you

doing?' and she's like, 'Pull over. The sirens'? [¶] . . . [¶] . . . We got off right there at

Balboa, fool. . . . I told Lindsey, 'All right. If you can't handle this, jump out and I'll

have somebody come pick you up.' "

On redirect, defense counsel sought to question Motsenbocker regarding another

statement he made during that recorded telephone call. After the prosecutor objected on

hearsay grounds, the trial court discussed the matter with counsel out of the jury's

presence, asking whether there was an Evidence Code section 356 issue. Defense

counsel instead argued it was a prior consistent statement when Motsenbocker told his

friend, "When I closed the door this fool jumped through the window and said, 'I'm going

to fucking kill you.' " The prosecutor argued he had not impeached Motsenbocker on that

subject and he (Motsenbocker) had remained consistent on it. The court sustained the

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prosecutor's objection, finding Motsenbocker had not made a prior consistent statement

under Evidence Code section 791.

B

Evidence Code section 356. Motsenbocker argues the trial court abused its

discretion by excluding his proffered portion of his recorded telephone call because it

was admissible under Evidence Code section 356, which provides:

"Where part of an act, declaration, conversation, or writing is given
in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration, conversation,
or writing which is necessary to make it understood may also be
given in evidence." (Italics added.)

Assuming arguendo Motsenbocker did not forfeit or waive Evidence Code section

356 as a ground for admission of the proffered statement by not arguing its admission on

that basis, we nevertheless conclude the trial court did not err by implicitly concluding it

was not admissible on that ground. Evidence Code section 356 is the statutory version of

the common law rule of completeness. (People v. Parrish (2007) 152 Cal.App.4th 263,

269, fn. 3.) When one party places in evidence one part of a conversation or statement,

the other party may place the remainder of that conversation or statement in evidence

provided those other statements have some bearing on, or connection with, the admission

or declaration in evidence. (Evid. Code, § 356; People v. Zapien (1993) 4 Cal.4th 929,

959.) Alternatively stated, for admission under Evidence Code section 356, those other

statements must be on the same subject or must be necessary to understand the original

statements already admitted. (People v. Maury (2003) 30 Cal.4th 342, 419.) We review

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a trial court's ruling under Evidence Code section 356 for abuse of discretion. (Parrish,

at p. 274.)

Based on our review of the record, we conclude the trial court did not abuse its

discretion by implicitly concluding Evidence Code section 356 did not allow admission

of Motsenbocker's proffered statement because that statement was not on the "same

subject" as the statements introduced by the prosecutor. The prosecutor impeached

Motsenbocker's testimony with his statements in the recorded telephone call that he told

his friend he was aware the FJ Cruiser he was driving was stolen and that he was aware

law enforcement officers were trying to pull him over. Those statements were unrelated

to his subsequent statement that "this fool," presumably referring to Deputy Allie,

"jumped through the window" and threatened to kill him. Although Motsenbocker

argues his subsequent statement should have been admitted to help show he feared for his

life, it did not relate to the same subject as, and was not necessary to understand, the

statements introduced by the prosecutor. (Evid. Code, § 356; People v. Maury, supra, 30

Cal.4th at p. 419.) The court did not abuse its discretion by implicitly concluding the

proffered statement was not admissible under Evidence Code section 356. (People v.

Parrish, supra, 152 Cal.App.4th at p. 269 & fn. 3.)

C

Evidence Code section 791. Motsenbocker also argues the trial court abused its

discretion by not admitting his proffered statement from the recorded telephone call

under Evidence Code section 791, which provides:

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 "Evidence of a statement previously made by a witness that is
consistent with his testimony at the hearing is inadmissible to
support his credibility unless it is offered after:

"(a) Evidence of a statement made by him that is inconsistent with
any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made
before the alleged inconsistent statement; or

"(b) An express or implied charge has been made that his testimony
at the hearing is recently fabricated or is influenced by bias or other
improper motive, and the statement was made before the bias,
motive for fabrication, or other improper motive is alleged to have
arisen."

Motsenbocker specifically argues his proffered statement should have been admitted

under Evidence Code section 791, subdivision (b), to rehabilitate his credibility after the

prosecutor attempted to broadly impeach his trial testimony with the portions of the

recorded telephone call quoted above. He cites People v. Kennedy (2005) 36 Cal.4th 595,

in which the court stated: "Evidence Code section 791 permits the admission of a prior

consistent statement when there is a charge that the testimony given is fabricated or

biased, not just when a particular statement at trial is challenged." (Id. at p. 614; People

v. Brents (2012) 53 Cal.4th 599, 616.)

However, we conclude the trial court did not abuse its discretion by concluding

Motsenbocker's proffered statement did not qualify as a prior consistent statement under

Evidence Code section 791. Because the prosecutor never questioned the truthfulness of

Motsenbocker's statement that Deputy Allie threatened to kill him, his proffered

statement did not qualify as a prior consistent statement under Evidence Code section

791, subdivision (b). Specifically, the prosecutor did not expressly or implicitly charge

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that Motsenbocker's statement regarding Allie's purported threat was recently fabricated

or influenced by bias or other improper motive and that statement was made before the

bias or improper motive allegedly arose. (Evid. Code, § 791; People v. Ervine (2009) 47

Cal.4th 745, 780.) Evidence Code section 791 does not make all prior statements

admissible merely because a defendant's general credibility has been attacked during

cross-examination. (Ervine, at p. 780.) Furthermore, because Motsenbocker made the

proffered statement while in jail awaiting trial, the court reasonably could infer he had a

motive to lie at the time he made the statement and therefore it was inadmissible under

Evidence Code section 791. Accordingly, the court did not abuse its discretion by

concluding Motsenbocker's proffered statement was not admissible under Evidence Code

section 791.2 (People v. Waidla (2000) 22 Cal.4th 690, 717 [abuse of discretion standard

applies to Evid. Code, § 791 rulings].)

2 To the extent Motsenbocker argues the trial court's exclusion of his proffered
statement violated his constitutional right to present a defense or to a fair trial, we
disagree. A trial court's exercise of its discretion in admitting or excluding evidence does
not involve a defendant's constitutional rights absent extraordinary or unusual
circumstances. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Lawley (2002) 27
Cal.4th 102, 155.) Because Motsenbocker does not persuade us there are any
extraordinary or unusual circumstances in this case, we conclude the court did not violate
his constitutional rights by excluding his proffered statement. Furthermore, because we
conclude the court did not err by excluding that evidence, we need not, and do not, decide
whether exclusion of that evidence was prejudicial to Motsenbocker.

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 II

Count 11 Sentence

Motsenbocker contends the trial court erred by sentencing him to a prison term for

unlawful possession of an access card (count 11) because that count was alleged as only a

misdemeanor.

A

The unlawful possession of an access card with intent to defraud is generally

considered a form of petty theft. (§ 484e, subd. (c).) Petty theft is a misdemeanor crime,

for which a felony sentence may be imposed when a defendant has previously been

convicted of the same or another listed theft-related offense. (§§ 490, 666.) "Section 666

does not establish a separate substantive offense of petty theft with a prior conviction. It

is a discretionary sentencing statute which, upon the establishment of a qualifying prior

conviction, allows the trial court to punish petty theft as either a felony or a

misdemeanor." (People v. Robinson (2004) 122 Cal.App.4th 275, 281.) That statute

does not establish a sentence enhancement, but rather an alternate and elevated penalty

for a petty theft conviction when a recidivist defendant has served a prior term for a listed

offense. (Ibid.) Therefore, Robinson concluded: "[S]ection 666 need not be specifically

pleaded in the information or indictment." (Id. at pp. 281-282.)

B

Count 11 of the consolidated amended information in this case charged

Motsenbocker with violating section 484e, subdivision (c). In the charge summary of the

consolidated amended information, that charged offense was listed as a misdemeanor

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with a maximum sentence of six months in jail. The consolidated amended information

also listed all of Motsenbocker's prior offenses, including four prior burglary offenses and

a receipt of stolen property offense. However, it did not expressly refer to section 666.

During trial, Motsenbocker admitted he had three or more theft-related crimes

within the meaning of section 666. He further admitted he had previously been convicted

of multiple counts of burglary (§ 459) and feloniously receiving stolen property (§ 496,

subd. (a)). The jury found Motsenbocker guilty of count 11 as charged in the

information.

C

Although section 666 does not require that it be specifically pleaded in the

information, People v. Tardy (2003) 112 Cal.App.4th 783 stated the information must

apprise "the defendant of the potential for the enhanced penalty and allege every fact and

circumstance necessary to establish its applicability." (Id. at p. 787.) In the

circumstances of that case, Tardy stated: "[T]here is no due process requirement to

specify section 666 when that enhancement relates solely to the unpleaded (but

constitutionally noticed) lesser included offense and every fact necessary to establish

section 666 is subsumed in the prior conviction/prison enhancement allegations set forth

in the accusatory pleading." (Id. at p. 788.)

We conclude the circumstances in this case are factually apposite to those in Tardy

regarding the section 666 issue. Here, the consolidated amended information alleged

Motsenbocker's prior theft-related offenses that qualified him for sentencing under

section 666, and he admitted he had been previously convicted of three or more of those

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offenses within the meaning of section 666. Because the information gave him adequate

notice he could receive a felony sentence on count 11, the court did not err by imposing a

term of one year four months for his conviction on that count. (Cf. People v. Tardy,

supra, 112 Cal.App.4th at p. 788.)

D

Motsenbocker alternatively argues he was denied effective assistance of counsel

when his counsel did not object to the trial court's imposition of a felony sentence for his

conviction on count 11.3 However, as the People assert, his counsel did not perform

deficiently because he was not required to make frivolous objections, such as the one

Motsenbocker now asserts should have been made. (People v. Westoby (1976) 63

Cal.App.3d 790, 799.) Here, an objection to his sentencing under section 666 would

have been frivolous because the information listed his prior offenses that qualified him

for sentencing under section 666 and he stipulated he had been convicted of three or more

theft-related offenses within the meaning of section 666. Because, based on this record,

the trial court presumably would have overruled any objection by Motsenbocker's

counsel to sentencing under section 666, any such objection would have been frivolous

and therefore his counsel did not perform deficiently. (Strickland v. Washington (1984)

466 U.S. 668, 687-689; Westoby, at p. 799.) Furthermore, Motsenbocker similarly has

3 In Case No. D068122, which we consider with this appeal, we address
Motsenbocker's related petition for habeas corpus based on other purported deficient
performance by his counsel (i.e., a mistake regarding the maximum sentence that could
be imposed for the counts alleged against him, which mistake purportedly caused him to
reject a plea offer made by the prosecution).

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not shown he was prejudiced by his counsel's purported deficient performance (i.e., that

the trial court would not have imposed a felony sentence for count 11 under § 666 had his

counsel objected to such sentencing). (Strickland, at p. 694.) He has not carried his

burden on appeal to show his constitutional right to effective assistance of counsel was

violated when his counsel did not object to his sentencing on count 11 under section 666.

III

Section 667.5, Subdivision (b), Enhancement

Motsenbocker contends, and the People agree, that the trial court erred by

imposing and staying the section 667.5, subdivision (b), enhancement for a prior prison

term rather than striking it. At trial, he admitted he had previously been convicted of a

serious felony within the meaning of section 667, subdivision (a)(1), and a prison prior

under section 667.5, subdivision (b). At sentencing, the trial court imposed the section

667, subdivision (a)(1), enhancement, and then imposed but stayed the section 667.5,

subdivision (b), enhancement, which was based on the same prior conviction. However,

the court lacked authority to stay the section 667.5, subdivision (b), enhancement. "Once

[a] prior prison term is found true within the meaning of section 667.5(b), the trial court

may not stay the one-year enhancement, which is mandatory unless stricken." (People v.

Langston (2004) 33 Cal.4th 1237, 1241.) Because the trial court could not impose both a

prior serious felony enhancement and a prior prison term enhancement based on the same

underlying conviction, it should have stricken, rather than stayed, the section 667.5,

subdivision (b), enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1146-1153;

People v. Perez (2011) 195 Cal.App.4th 801, 805.) By not doing so, the court erred.

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 IV

Proposition 47

Motsenbocker contends he should be resentenced on counts 4, 11, 12, and 13

because Proposition 47 (Prop. 47), effective on November 5, 2014, applies retroactively

and therefore those pre-Prop. 47 convictions must be automatically sentenced as only

misdemeanors and not felonies. The People agree that Motsenbocker's four convictions

qualify for resentencing as misdemeanors under Prop. 47. However, they assert that

because Prop. 47 does not apply retroactively and he was currently serving a sentence for

a felony conviction at the time Prop. 47 became effective, he must file a petition for recall

of his sentence after his judgment is final and allow the trial court to determine whether

he is, in fact, eligible for resentencing under Prop. 47. We agree with the People.

A

Prop. 47 created section 1170.18, providing a new statutory remedy for "[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 [Prop. 47] had this act been

in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) Section 1170.18,

subdivision (a), provides such a person "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 in accordance with . . . Section . . . 490.2, 496, or 666 of the Penal Code, as

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those sections have been amended or added by this act."4 Section 1170.18, subdivision

(b), provides:

"Upon receiving a petition under subdivision (a), the court shall
determine whether the petitioner satisfies the criteria in subdivision
(a). If the petitioner satisfies the criteria in subdivision (a), the
petitioner's felony sentence shall be recalled and the petitioner
resentenced to a misdemeanor pursuant to . . . Section . . . 490.2,
496, or 666 of the Penal Code . . . unless the court, in its discretion,
determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety."

B

Citing In re Estrada (1965) 63 Cal.2d 740, Motsenbocker argues that because his

judgment is not yet final and Prop. 47 does not contain any savings clause, Prop. 47

operates retroactively to automatically reduce the punishment for his convictions on

counts 4, 11, 12, and 13 to misdemeanor sentences and he is not required to file in the

trial court a petition to recall his sentence under section 1170.18. He also argues the

voters intended that Prop. 47's provisions retroactively apply to nonfinal judgments. We

disagree.

Based on our review of section 1170.18 and giving its words their ordinary and

usual meaning (People v. Park (2013) 56 Cal.4th 782, 796), we conclude its language is

unambiguous that a defendant, such as Motsenbocker, serving a sentence for a Prop. 47

qualifying offense when Prop. 47 became effective (i.e., on November 5, 2014) may

4 For example, Prop. 47 amended section 496 to provide punishment for possession
of stolen property only as a misdemeanor if the value of the property does not exceed
$950. (§ 496, subd. (a).)

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petition for a recall of his or her sentence and request resentencing under Prop. 47, and

that any resentencing under Prop. 47 must be effected in that manner. Because its

provisions are clear, there is no issue regarding Prop. 47's retroactivity. In any event, we

agree with other courts that Prop. 47's provisions do not apply retroactively. (See, e.g.,

People v. Shabazz (2015) 237 Cal.App.4th 303, 310-314; People v. Noyan (2014) 232

Cal.App.4th 657, 672.) Accordingly, to obtain relief under Prop. 47, Motsenbocker must

file a petition for recall of his sentence under Prop. 47 once the judgment is final and

jurisdiction of the case has been returned to the trial court.

DISPOSITION

The judgment is modified to strike the section 667.5, subdivision (b),

enhancement. In all other respects, the judgment is affirmed. The clerk of the trial court

shall file an amended abstract of judgment reflecting that modification and forward a

copy to the Department of Corrections and Rehabilitation.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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