People v. Williams

Filed 3/3/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B264110

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA060453-2)
v.

JAIMEE J. WILLIAMS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Christopher G. Estes, Judge. Affirmed.

Brad Kaiserman, 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, Senior Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

******
 The Safe Neighborhoods and Schools Act, enacted by the voters as Proposition 47
in the November 2014 election, downgrades several felonies and wobblers to
misdemeanors and permits persons convicted of those felonies and wobblers to have
1
them redesignated as misdemeanors. (Pen. Code, § 1170.18.) As relevant here, section
667.5, subdivision (b), requires a court to increase any sentence of imprisonment for a
felony by one extra year for each of a defendant’s prior felony convictions that resulted in
a separate term of imprisonment. This case deals with the interaction of these two
provisions: When a defendant’s sentence for felony no. 2 is enhanced under section
667.5, subdivision (b), for defendant’s service of a term of imprisonment on felony no. 1,
and when the defendant later has felony no. 1 redesignated as a misdemeanor under
Proposition 47, does that redesignation operate retroactively and thereby entitle the
defendant to be resentenced on felony no. 2 to eliminate the section 667.5, subdivision
(b) enhancement? We conclude that it does not, and accordingly affirm the trial court’s
order declining to resentence in this case.
FACTS AND PROCEDURAL BACKGROUND
In September 2013, the People charged Jaimee J. Williams (defendant) and a
codefendant with eight crimes, including felony grand theft involving property worth
2
more than $950. (§ 487, subd. (a).) The People further alleged that defendant’s 2008
conviction for felony burglary (§ 459) was a “strike” under our state’s “Three Strikes”
3
law (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(j)), and that defendant had served prior
prison terms within the meaning of section 667.5, subdivision (b), for that 2008

1 Unless otherwise noted, all further statutory references are to the Penal Code.

2 Defendant was also charged with first-degree burglary (Pen. Code, § 459);
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); receiving
stolen property (Pen. Code, § 496, subd. (a)); identity theft (Pen. Code, § 530.5, subd.
(a)); and three counts of identifying information theft (Pen. Code, § 530.5, subd. (c)(1)).

3 The People also alleged defendant’s 2008 conviction for assault with a deadly
weapon (§ 245, subd. (a)(1)) as a second strike.

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conviction as well as for a 2010 Orange County conviction for felony petty theft with a
prior (§ 666). Later that month, defendant entered a no contest plea to the felony grand
theft count, admitted that her felony burglary conviction constituted a “strike,” and
admitted that she had served prison terms for her convictions of felony burglary and petty
theft with a prior. That same day, the trial court imposed a prison sentence of four years
and eight months—32 months for the grand theft conviction (that is, the low-end sentence
of 16 months, doubled as a second strike sentence), plus one year for each of the two
prior prison sentences. The remaining counts and allegations against her were dismissed.
In March 2015, defendant filed a petition in Orange County Superior Court
requesting, under Proposition 47, that her felony petty theft with a prior conviction be
reduced from a felony to a misdemeanor. Her petition was granted.
In April 2015, defendant filed a motion seeking to be resentenced in the felony
grand theft case on the ground that the redesignation of the petty theft with a prior
conviction as a misdemeanor meant it was no longer a prior prison term for a felony
under section 667.5, subdivision (b); thus, she argued, she was entitled to have her felony
grand theft sentence reduced by a year.
The trial court denied the motion. The court reasoned that “the focus of [section]
667.5(b)[] is not on the underlying criminal conduct that resulted in the felony
conviction, but on the status of [the] defendant as a recidivist, a repeat offender, showing
a pattern of ongoing criminal conduct, despite a prison term.” Due to this focus, the
redesignation of defendant’s petty theft with a prior conviction from a felony to a
misdemeanor did not “unravel[] the underlying [section] 667.5(b) punishment,” and thus
provided no occasion for resentencing.
Defendant timely appeals.
DISCUSSION
Proposition 47 redesignates as misdemeanors “certain drug- and theft-related
offenses” that were charged as felonies or charged as “wobblers” (that is, offenses that
are punishable as a felony until a court reduces them to a misdemeanor) and ultimately

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 4
sentenced as felonies. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 (Lynall);
§ 1170.18; see also § 17 [defining “wobbler” offenses].) Proposition 47 operates
prospectively: Since it has taken effect on November 5, 2014 (Cal. Const., art. II, § 10,
subd. (a)), the People are required, as to any eligible defendant, to charge any of the
redesignated offenses as misdemeanors. (§ 1170.18, subd. (i) [limiting redesignation to
defendants without prior convictions of crimes enumerated in section 667, subdivision
(e)(2)(C)(iv) and crimes requiring sex registration].) Proposition 47 also operates
retroactively by creating two mechanisms for the court that originally imposed a felony
sentence on an eligible defendant to redesignate any conviction for an offense
downgraded by the Proposition. (§ 1170.18, subds. (a), (b), (f), (g); see also, People v.
Valenzuela (2016) __ Cal.App.4th __, 2016 Cal.App.LEXIS 76, 23-26 (Valenzuela)
[specifying that Proposition 47 applications must be filed in the trial court]; People v.
Marks (2015) 243 Cal.App.4th 331, 334-335 [specifying where Proposition 47 petition
must be filed].) But does Proposition 47 further require a court to resentence a defendant
on crimes not affected by Proposition 47 because the sentence for those crimes was
enhanced based on a prior conviction that is affected by the Proposition?
5
This is the question presented here. Our resolution of this question turns on two
issues: (1) does the text of Proposition 47, the purpose of Proposition 47, the canons of

4 These redesignated offenses can be found in sections 459.5, 473, 476a, 490.2, 496
and 666, as well as in Health and Safety Code sections 11350, 11357, 11377.
(Pen. Code, § 1170.18, subds. (a) & (b).)

5 Our Supreme Court currently has many separate but related questions pending
before it, including (1) whether Proposition 47 entitles a defendant to vacate a felony
conviction for failing to appear in court while charged with an offense redesignated as a
misdemeanor (see People v. Eandi (2015) 239 Cal.App.4th 801, review granted Nov. 18,
2015, S229305; People v. Perez (2015) 239 Cal.App.4th 24, review granted Nov. 18,
2015, S229046), and (2) whether a defendant who is entitled under Proposition 47 to
redesignate the felony underlying his current sentence and the felony used to enhance that
sentence is entitled to have both offenses treated as misdemeanors at the time of the
resentencing on the current sentence (see People v. Buycks (2015) 241 Cal.App.4th 519,
review granted Jan. 20, 2016, S231765).

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statutory construction, or the text or purpose of section 667.5, subdivision (b) require
resentencing in this context?; and (2) do the principles of equal protection otherwise
compel it? The first presents a question of statutory interpretation, and the second a
question of constitutional law; we review both types of questions de novo. (Raef v.
Appellate Division (2015) 240 Cal.App.4th 1112, 1120.) These standards of review
dovetail neatly with the general rule that the “retroactive application of [a] statute [is
reviewed] de novo.” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183.) In
conducting this independent review, we are concerned with the trial court’s ruling, not its
reasoning. (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
I. Statutory Interpretation
The principles for interpreting a proposition enacted by popular vote are the same
as those used to interpret a statute enacted by our Legislature. (People v. Park (2013) 56
Cal.4th 782, 796 (Park).) We start with the text, and if its plain meaning is unambiguous,
we end there as well. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192-
193.) If the meaning is ambiguous, we may also consider the statute’s purpose and
intent. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) Our
overarching goal is to ascertain and implement the voters’ intent. (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1099-1100 (Rivera), citing Horwich v. Superior Court
(1999) 21 Cal.4th 272, 276 and People v. Jones (1993) 5 Cal.4th 1142, 1146.)
Applying these principles, we conclude that the redesignation of a felony or
wobbler to a misdemeanor under Proposition 47 applies prospectively (that is, from the
date of redesignation forward), but not retroactively (that is, as if the offense had been a
misdemeanor from the date it was committed).
A. Text of Proposition 47
The text of Proposition 47 does not speak directly to the question of whether the
redesignation of a felony as a misdemeanor has a retroactive effect. However, the text
implies that redesignation is to have no retroactive effect for two reasons.
First, and as noted above, the text of Proposition 47 creates two separate
mechanisms for redesignating felonies or wobblers sentenced as felonies: The first

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applies to a defendant “currently serving a sentence for [that] conviction[],” and allows
for the “recall” of that felony sentence and for resentencing contingent upon a finding
that the redesignation will not pose an “unreasonable risk that the [defendant] will
commit a new violent felony within the meaning of” section 667, subdivision
(e)(2)(c)(iv). (§ 1170.18, subds. (a) & (b).) The second applies to a defendant who has
“completed his or her sentence” and allows for re-“designation” of that offense as a
misdemeanor. (§ 667, subds. (f) & (g).) Tellingly, the text does not create a mechanism
for obtaining a resentencing on a felony not affected by Proposition 47 just because an
offense underlying one of its enhancements is so affected. (Valenzuela, supra, __
Cal.App.4th __, 2016 Cal.App.LEXIS 76, 28 [“(s)ection 1170.18 provides a mechanism
for reducing felony convictions to misdemeanors, but contains no procedure for striking a
prison prior if the felony underlying the enhancement has subsequently been reduced to a
misdemeanor”]; People v. Ruff (2016) __ Cal.App.4th __, 2016 Cal.App.LEXIS 99, 16
(Ruff) [noting same]; People v. Carrea (2016) __ Cal.App.4th __, 2016 Cal.App.LEXIS
100, 6-7 (Carrea) [noting same].)
This is significant because Proposition 47 expressly provides that the two
mechanisms it creates are meant to be exhaustive, not illustrative: “Nothing in this and
related sections is intended to diminish or abrogate the finality of judgments in any case
not falling within the purview of this act.” (§ 1170.18, subd. (n); accord, Carrea, supra,
__ Cal.App.4th __, 2016 Cal.App.LEXIS 100, 14-15 [concluding that subdivision (n)
would be violated if Proposition 47 were construed to create a third mechanism allowing
for resentencing due to the redesignation of an offense used solely as a sentencing
enhancement].) Proposition 47’s choice of words also implicitly counsels against
creating a new mechanism: The statute allows for the “recall” of sentences currently
being served and for a full resentencing on those offenses, but allows only for the re-
“designation” of completed sentences. Fashioning a new mechanism for “recalling” and
resentencing (rather than re-“designating”) convictions whose sentences have been
completed would contravene these express and implied limitations as well as the general
rule that we are not “[o]rdinarily . . . free to add text to the language selected by the

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Legislature” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 350) or by the
voters.
Second, Proposition 47 borrows language from section 17 that has a well-defined
meaning and that does not grant an offense’s redesignation as a misdemeanor retroactive
effect. Proposition 47 expressly provides that “[a]ny felony conviction that is recalled
and resentenced” under either of the two statutory mechanisms “shall be considered a
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misdemeanor for all purposes.” (§ 1170.18, subd. (k), italics added.) This language is
identical to the language used in section 17 to describe the effect of a judicial declaration
that a wobbler offense—which is punishable as a felony until designated a
misdemeanor—is to be considered a misdemeanor. (§ 17, subds. (b) & (b)(3) [where a
crime is a wobbler, “it is a misdemeanor for all purposes . . . when . . . the court declares
the offense to be a misdemeanor”], italics added; see also People v. Rivera (2015) 233
Cal.App.4th 1085, 1100 (Rivera) [noting how Proposition 47 borrowed section 17’s
language].)
“[W]hen a wobbler is reduced to a misdemeanor [under section 17], the offense
thereafter is deemed a ‘misdemeanor for all purposes.’” (Park, supra, 56 Cal.4th at
p. 795; People v. Banks (1959) 53 Cal.2d 370, 381-382; People v. Pryor (1936) 17
Cal.App.2d 147, 152.) Put differently, redesignation under section 17 makes the wobbler
“a misdemeanor from that point on.” (People v. Feyrer (2010) 48 Cal.4th 426, 439, 443,
fn. 8 (Feyrer); People v. Marshall (1991) 227 Cal.App.3d 502, 504 [redesignated offense
is treated as a misdemeanor after redesignation]; Gebremicael v. California Com. on
Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1482-1483, 1487 [same]; People v.
Camarillo (2000) 84 Cal.App.4th 1386, 1390, 1394 [same]; People v. Rowland (1937) 19
Cal.App.2d 540, 541-542 [same].) Critically, however, this “misdemean[or] status [is]

6 In full, subdivision (k) provides: “Any 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 that such resentencing shall
not permit that person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).)

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not . . . given retroactive effect.” (People v. Moomey (2011) 194 Cal.App.4th 850, 857
(Moomey); Feyrer, at p. 439 [“the offense is (made) a misdemeanor from that point on,
but not retroactively”], italics added.) In other words, a court’s declaration of
misdemeanor status renders an offense a misdemeanor for all purposes, not for all times.
Thus, a declaration that a wobbler is a misdemeanor does not “relate back” and alter that
offense’s original status as a wobbler that is by definition to be treated as a felony until
declared otherwise. For this reason, a court’s order declaring a wobbler to be a
misdemeanor has been held not to call into question a defendant’s burglary conviction for
entering a building with intent to commit a felony (Moomey, at pp. 857-858), a
defendant’s ineligibility for a diversionary drug sentence due to a prior felony (People v.
Marsh (1982) 132 Cal.App.3d 809, 812-813), a defendant’s conviction for being a felon
in possession of a firearm (People v. Holzer (1972) 25 Cal.App.3d 456, 460, overruled on
other grounds in People v. Palmer (2001) 24 Cal.4th 856, 860-862), or perhaps most
relevant here, the imposition of a sentencing enhancement for a prior felony (Park, supra,
56 Cal.4th at p. 802 [“(t)here is no dispute that . . . defendant would be subject to the
(Penal Code) section 667(b) enhancement (for “serious” felonies) had he committed and
been convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor”]).
Because “identical language appearing in separate statutory provisions should
receive the same interpretation when the statutes cover the same or analogous subject
matter” (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6; People v. Lamas (2007)
42 Cal.4th 516, 525), and because Proposition 47 and section 17 both address the effect
to be given the redesignation of a felony (or a wobbler that starts out as a felony) as a
misdemeanor, we are presumptively obligated to construe the phrase “misdemeanor for
all purposes” under Proposition 47 to mean the same as it does under section 17—
namely, that a felony offense redesignated as a misdemeanor under Proposition 47 retains
its character as a felony prior to its redesignation, and is treated as a misdemeanor only
after the time of redesignation. (Accord, Ruff, supra, __ Cal.App.4th __, 2016
Cal.App.LEXIS 99, 10-12 [so holding].)

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 This is precisely why the appeal of a redesignated offense under Proposition 47
lies with the Court of Appeal and not the Appellate Division—namely, because the
redesignation does not retroactively convert the offense to a misdemeanor at the time of
charging, which is the relevant point in time for determining where an appeal lies.
(Lynall, supra, 233 Cal.App.4th at pp. 1110-1111; Rivera, supra, 233 Cal.App.4th at pp.
1096-1097, 1099-1100.) Where, as here, the status of a prior conviction is assessed at the
time of the original sentencing, it is presumptively unaffected by later events. (Accord,
People v. Harty (1985) 173 Cal.App.3d 493, 499 [later invalidation of felony conviction
underlying felon-in-possession charge does not negate that charge]; People v. Sanchez
(1989) 211 Cal.App.3d 477, 479-480 [same]; In re Watford (2011) 186 Cal.App.4th 684,
690 [same, as to sex registration offense].)
Defendant urges that we depart from the general canon of statutory interpretation
that points us to section 17’s interpretation and that we instead read the phrase
“misdemeanor for all purposes” literally, giving effect to the lexical truism that “all
means all” (Rubin v. W. Mutual Ins. Co. (1999) 71 Cal.App.4th 1539, 1547). The canon
we cite above, like all interpretive canons, is merely a “guide” (Burris v. Superior Court
(2005) 34 Cal.4th 1012, 1017), and defendant offers four reasons why we should ignore
its guidance and adopt a different definition of “misdemeanor for all purposes” under
Proposition 47.
To begin, she notes that Proposition 47 directs that its provisions “shall be
liberally construed to effectuate its purposes.” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 18, p. 74.) However, it is well settled that “the
legislative intent in favor of the retrospective operation of a statute cannot be implied
from the mere fact that the statute is remedial and subject to the rule of liberal
construction.” (Di Genova v. State Board of Education (1962) 57 Cal.2d 167, 174.)
Next, defendant points us to the voters’ decision to carve out a single exception to
Proposition 47’s “misdemeanor for all purposes” declaration—namely, that any “such
resentencing shall not permit that person to own, possess, or have in his or her custody or
control any firearm or prevent his or her conviction” under provisions governing

9
possession of firearms by prohibited persons. (§ 1170.18, subd. (k).) Defendant reasons
that the inclusion of this exception precludes any other exceptions, including any
“exception” against retroactive effect. (E.g., Alejandro N. v. Superior Court (2015) 238
Cal.App.4th 1209, 1227 [recall and resentencing, under Proposition 47, of a juvenile
adjudication when the defendant is currently serving that sentence requires the removal of
the defendant’s name from the DNA database for felony offenders because this collateral
consequence is not excepted under subdivision (k)]; see generally Gikas v. Zolin (1993) 6
Cal.4th 841, 842 [“(t)he expression of some things in a statute necessarily means the
exclusion of other things”].) But the Legislature has also carved out several exceptions to
the effect of redesignation of wobblers under section 17 (Park, supra, 56 Cal.4th at
pp. 794-795 [listing exceptions]), and, as noted above, the existence of these exceptions
has not compelled the conclusion that section 17 redesignations are retroactive. Instead,
the effect of a section 17 redesignation—and any exception to that effect—attach from
the moment of redesignation onward.
Further, defendant argues that Proposition 47 is different from section 17 because
Proposition 47 makes redesignation automatic upon a finding that an eligible defendant’s
conduct “would have been a misdemeanor under [the Proposition] had [it] been in effect
at the time of the offense” (§ 1170.18, subds. (f), (g) & (i)), while section 17 makes
redesignation discretionary as a reward for a defendant’s demonstrated good conduct on
probation. However, the distinction defendant urges us to draw does not always exist:
Prosecutors can charge a wobbler offense as a misdemeanor at the outset unless the
defendant objects (§ 17, subd. (b)(4)), and judges can redesignate a wobbler offense as a
misdemeanor before or during the preliminary examination (§ 17, subd. (b)(5)); in either
case, there is no period of probation during which time the defendant can “earn” his or
her redesignation. Even if a wobbler is sometimes reduced as a “reward,” this distinction
does not provide a basis for treating section 17 differently from Proposition 47 for
purposes of retroactivity. Relatedly, the fact that Proposition 47 requires a retrospective
inquiry—requiring a court to ask whether the defendant’s conduct would have constituted
a “misdemeanor had [Proposition 47] been in effect at the time of that” conduct—does

10
not mean that it requires a retroactive effect. The Proposition downgrades the offenses it
enumerates by altering the definitions of existing offenses and creating new misdemeanor
offenses; the only way a court can apply the Proposition is to examine what the defendant
did and assess whether that conduct fits into these new definitions or offenses. Thus, the
retrospective inquiry is a product of how Proposition 47 works, and nothing more.
Lastly, defendant asserts that we should construe Proposition 47 differently
because it would be “absurd” not to give redesignations a retroactive effect. (See
generally, Hudec v. Superior Court (2015) 60 Cal.4th 815, 828 [courts are not to construe
statutes to lead to absurd results].) The ninety years of precedent interpreting section 17
discussed above would seem to indicate to the contrary.
Our construction of Proposition 47’s text is consistent with the emerging
consensus that a Proposition 47 redesignation does not apply retroactively. (See
Valenzuela, supra, __ Cal.App.4th __, 2016 Cal.App.LEXIS 76, at 23-26; Ruff, supra, __
Cal.App.4th __, 2016 Cal.App.LEXIS 99, 10-24; Carrea, supra, __ Cal.App.4th __, 2016
Cal.App.LEXIS 100, 6-17.) Moreover, our construction also sits comfortably alongside
the recent decision in People v. Diaz (2015) 238 Cal.App.4th 1323 (Diaz). Diaz held that
a defendant seeking to reduce a felony conviction used to enhance his sentence under
section 667.5, subdivision (b) had to file his petition to redesignate under Proposition 47
in the court of conviction of that felony—not the court where the current sentence was
imposed. (Id. at p. 1328.) Diaz’s direction as to where to file a petition for redesignation
may seem to imply that the defendant, after obtaining that redesignation, would be able to
return to the court of current sentence and have that sentence reduced—a reduction that
would only be possible if the redesignation had a retroactive effect. However, Diaz took
pains to “express no opinion whether . . . a felony conviction which has been designated a
misdemeanor under section 1170.18(k) can be used to support a section 667.5,
subdivision (b) enhancement.” (Id. at p. 1336, italics omitted.)
B. Purpose of Proposition 47
The statutory purposes of Proposition 47 also do not speak to whether the
redesignation of an offense should have retroactive effect; however, like its text,

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Proposition 47’s purposes imply it should not. Sections 2 and 3 of Proposition 47 lay out
the voters’ chief aims—“ensur[ing] that prison spending is focused on violent and serious
offenses,” “maximiz[ing] alternatives for nonserious, nonviolent crime,” and “invest[ing]
the savings generated from this act into prevention and support programs in K-12
schools, victim services, and mental health and drug treatment.” (Voter Information
Guide, supra, text of Prop. 47, §§ 2 & 3, p. 70.) These purposes do not necessarily
include giving redesignations retroactive effect. Moreover, such an effect would obligate
a court to resentence on any offense, including violent crimes, enhanced by a
redesignated offense. This would directly contravene the voters’ expressed intent that
“people convicted of murder, rape, and child molestation . . . not benefit from this act.”
(Voter Information Guide, § 3(1), p. 70.) We therefore reject defendant’s argument that
the voters’ intent to generate savings by freeing up jail space—a goal defendant says is
better achieved by making redesignation fully retroactive—should be given dispositive
weight. (Accord, Valenzuela, supra, __ Cal.App.4th __, 2016 Cal.App.LEXIS 76, 29
[“(t)he procedures set forth in section 1170.18 . . . indicate the electorate’s intent for a
specific, limited prospective application of the relief available under the new law”], italics
added.)
C. Interpretive canons
Proposition 47 does not rebut the statutory presumption that amendments to the
Penal Code operate prospectively. Section 3 provides that “[n]o part of [the Penal Code]
is retroactive, unless expressly so declared.” This presumption “codif[ies] ‘the time-
honored principle that . . . in the absence of an express retroactivity provision, a statute
will not be applied retroactively unless it is very clear from extrinsic sources that the
Legislature [or voters] . . . must have intended a retroactive application.’” (People v.
Brown (2012) 54 Cal.4th 314, 319 (Brown), quoting Evangelatos v. Superior Court
(1988) 44 Cal.3d 1188, 1208-1209.) As a general rule, only an express legislative
declaration of retroactivity or “‘a clear and compelling implication’” of such will suffice
(People v. Alford (2007) 42 Cal.4th 749, 753); “vague phrases and broad, general
language in statutes” will not (Brown, at p. 319). As explained above, Proposition 47

12
contains neither an express declaration nor a clear and compelling implication that a
Proposition 47 redesignation should be given retroactive effect.
Defendant raises two challenges to this analysis. First, he cites People v. Flores
(1979) 92 Cal.App.3d 461 (Flores). In Flores, the defendant sought to overturn a long-
final marijuana possession conviction used to enhance a later drug-related conviction on
the basis of subsequent legislation reducing the penalty for marijuana possession crimes
and mandating that records of arrests and convictions pertaining to those crimes be
destroyed. (Id. at pp. 471-472.) Flores held the defendant was entitled to the relief he
sought. (Id. at pp. 473-474.) In so holding, the court concluded that the Legislature’s
destruction-of-court-records mandate evinced a clear intent that those records (and the
convictions they recorded) not be used to enhance future sentences. (Ibid.) No such
clear intent exists with Proposition 47. (Accord, Ruff, supra, __ Cal.App.4th __, 2016
Cal.App.LEXIS 99, 21 [Proposition 47 “contains no clear expression with respect to
retroactivity as was found in Flores”].)
Second, defendant argues that section 3’s general presumption of prospectivity is
subject to the counter-presumption of retroactivity set forth in In re Estrada (1965) 63
Cal.2d 740 (Estrada), and that Estrada applies here. As recently construed by our
Supreme Court in Brown, supra, 54 Cal.4th 314, Estrada erects a “reasonable
presumption that a legislative act mitigating the punishment for a particular criminal
offense is intended to apply to all nonfinal judgments.” (Brown, at p. 324; Estrada,
supra, 63 Cal.2d at p. 744 [“(i)f the amendatory statute lessening punishment becomes
effective prior to the date the judgment of conviction becomes final, then . . . it, and not
the old statute in effect when the prohibited act was committed, applies”].) But Estrada’s
presumption applies only to convictions that are “not yet final.” (People v. Smith (2015)
234 Cal.App.4th 1460, 1465 (Smith).) “A judgment becomes final when the availability
of an appeal and the time for filing a petition for certiorari [with the United States
Supreme Court] have expired.” (Ibid.; Diaz, supra, 238 Cal.App.4th at p. 1336; In re
Pine (1977) 66 Cal.App.3d 593, 594; People v. Kemp (1974) 10 Cal.3d 611, 614.) The
2010 prior conviction used to enhance defendant’s sentence under section 667.5,

13
subdivision (b) in this case became final long ago. To be sure, Flores, supra, 92
Cal.App.3d 461 suggests a different definition of finality—namely, that “the effect of [a]
prior conviction is not final as long as the defendant has the right of appeal from the
[sentence] enhanced” by that conviction. (Id. at pp. 470-471). But we reject Flores’
suggestion because it is inconsistent with Estrada’s definition of finality. (Accord,
Carrea, supra, __ Cal.App.4th __, 2016 Cal.App.LEXIS 100, 16-17 [applying Estrada’s
definition of finality to Proposition 47].) Where, as here, the prior conviction being used
to support an enhancement under section 667.5, subdivision (b) is “final” under Estrada,
Estrada’s counter-presumption does not apply; to hold otherwise is “to stretch[] the
Estrada rule to [its] breaking point.” (Diaz, at p. 1336.)
D. Effect of section 667.5, subdivision (b)
Because this case lies at the intersection of Proposition 47 and section 667.5,
subdivision (b), we also examine whether anything in the text or purpose of section
667.5, subdivision (b) counsels in favor of resentencing a defendant to eliminate this
enhancement if the offense resulting in a term of imprisonment is later redesignated as a
misdemeanor under Proposition 47. Nothing does.
Section 667.5, subdivision (b) provides that a “court shall,” when imposing a
sentence of imprisonment on any felony, “impose a[n additional, consecutive] one-year
term for each prior separate prison term or county jail term . . . for any felony.” (§ 667.5,
subd. (b).) Although our Supreme Court has previously commented that “667.5(b) is
aimed primarily at the underlying felony conviction, and only secondarily, as an indicium
of the felony’s seriousness, at the prior prison term” (People v. Prather (1990) 50 Cal.3d
428, 440), the Court has since taken a different view, noting that “[t]he purpose of [this]
enhancement is ‘to punish individuals’ who have shown that they are ‘“hardened
criminal[s] who [are] undeterred by the fear of prison.”’” (In re Preston (2009) 176
Cal.App.4th 1109, 1115, quoting People v. Jones (1993) 5 Cal.4th 1142, 1148; People v.
Fielder (2004) 114 Cal.App.4th 1221, 1232.) As this text and purpose indicate, the
enhancement is designed to provide an extra deterrent for criminals who were not
deterred by prior terms of imprisonment in prison or in county jail under lengthier felony

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sentences. The critical factor is thus the fact of imprisonment, not the designation of the
offense that lead to it. (Accord, Valenzuela, supra, __ Cal.App.4th __, 2016
Cal.App.LEXIS 76, 31 [“a section 667.5 enhancement is based on the defendant’s status
as a recidivist, not on the underlying criminal conduct”]; Ruff, supra, __ Cal.App.4th __,
2016 Cal.App.LEXIS 99, 17 [noting the same].) These considerations counsel against
making the effect of a Proposition 47 redesignation retroactive as to the section 667.5,
subdivision (b) enhancement.
Defendant disputes this, noting that a section 667.5, subdivision (b) enhancement
is contingent upon “proof that the defendant . . . was previously convicted of a felony”
(People v. Tenner (1993) 6 Cal.4th 559, 562), and that the redesignation of a felony as a
misdemeanor precludes such a finding. It only does so, however, if redesignation has a
retroactive effect. We have concluded it does not.
For all these reasons, we hold as a matter of statutory construction that the
redesignation of a felony or wobbler under Proposition 47 operates from the moment of
redesignation forward and does not retroactively alter the designation of that crime as a
felony or wobbler.
II. Equal Protection
“Even where the Legislature expressly intends an ameliorative provision to apply
prospectively, constitutional considerations may require that it be applied retroactively.”
(In re Chavez (2004) 114 Cal.App.4th 989, 1000 (Chavez); Smith, supra, 234
Cal.App.4th at pp. 1466-1467.) Both the United States and California Constitutions
guarantee the equal protection of the laws. (U.S. Const., 14th Amend., § 1; Cal. Const.,
art. I, § 7; see In re Evans (1996) 49 Cal.App.4th 1263, 1270 [noting that “(t)he scope
and effect of the two clauses is the same”].) This guarantee assures that the Legislature
and voters cannot “‘“adopt[] a classification that affects two or more similarly situated
groups in an unequal manner”’” unless the classification “‘has [a] rational relationship to
a legitimate state purpose’”—at least where, as here, that classification does not involve a
suspect class or a fundamental right. (Brown, supra, 54 Cal.4th at p. 328; People v. Singh
(2011) 198 Cal.App.4th 364, 369.)

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 Defendant makes two equal protection arguments. First and foremost, he argues
that refusing to give a Proposition 47 redesignation retroactive effect sets up two classes
of defendants: (1) those sentenced now, who are able to avoid enhancements based on
prior felony or wobbler convictions (because the redesignations they obtain on those prior
convictions apply prospectively); and (2) those sentenced in the past, who are unable to
avoid enhancements based on prior felony or wobbler convictions (because the
redesignations they obtain on those prior convictions do not apply retroactively). What
distinguishes these two classes of defendants is whether the defendants were able to seek
redesignation before or after the current sentence was imposed, which in turn is a
function of the date Proposition 47 took effect. However, it is well settled that “‘[a]
reduction of sentences only prospectively from the date a new sentencing statute takes
effect is not a denial of equal protection.’” (People v. Floyd (2003) 31 Cal.4th 179, 188-
189; see also, Smith, supra, 234 Cal.App.4th at p. 1468 [“a statute ameliorating
punishment for particular offenses may be made prospective only without offending
equal protection”].) This makes sense because a classification defined by the date an
ameliorative statute takes effect rationally furthers the state’s legitimate interest in
“assur[ing] that penal laws will maintain their desired deterrent effect by carrying out the
originally prescribed punishment as written.” (In re Kapperman (1974) 11 Cal.3d 542,
545 (Kapperman).)
Second, defendant cites Kapperman, supra, 11 Cal.3d 542, and Chavez, supra,
114 Cal.App.4th 989 for the proposition that equal protection can sometimes compel the
retroactive reduction of a final sentence. This is true, but irrelevant in light of our
conclusion that there is no equal protection violation.
Kapperman and Chavez are also distinguishable. Kapperman held that equal
protection compelled the award of presentence credits against sentences for convictions
that were final prior to the enactment of the statute recognizing those credits.
(Kapperman, supra, 11 Cal.3d at pp. 544-545.) But our Supreme Court in Kapperman
specifically distinguished statutes “involving the application to previously convicted
offenders of statutes lessening the punishment for a particular offense”; as to those

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statutes, the court noted, “[t]he Legislature properly may specify . . . prospective only”
application. (Id. at p. 546.) Chavez held that equal protection compelled resentencing on
a final conviction that was originally sentenced under our state’s indeterminate
sentencing law in light of a new statute extending determinate sentencing to the crime at
issue. (Chavez, supra, 114 Cal.App.4th at p. 991.) The court determined that the
Legislature had expressed an intent to make the new statute retroactive, and after citing
equal protection principles, observed that “the purpose of achieving equality and
uniformity in felony sentencing is a legitimate public purpose to which the finality of the
judgment must yield.” (Id. at p. 1000.) We question whether Chavez applies the correct
test for assessing equal protection violations—the test is not whether the court finds a
“legitimate public purpose” for not drawing the classification, but instead whether “the
challenger ‘“negative[s] every conceivable basis”’” for drawing the classification
(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882). In any event, Chavez
dealt with a statute that was part of a larger effort to transmogrify sentencing law in the
state by moving it from indeterminate to determinate; where an enactment has a more
modest effect (as here, of redesignating a handful of drug and theft crimes as
misdemeanors), the Legislature’s legitimate interest in “carrying out the original
prescribed punishment” defeats any equal protection challenge. (Kapperman, at p. 546.)
We are not alone in our analysis of the issue: Valenzuela, Ruff and Carrea have
rejected identical equal protection challenges. (Valenzuela, supra, __ Cal.App.4th __,
2016 Cal.App.LEXIS 76, 32-33; Ruff, supra, __ Cal.App.4th __, 2016 Cal.App.LEXIS
99, 23-24; Carrea, supra, __ Cal.App.4th __, 2016 Cal.App.LEXIS 100, 17-20.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
_______________________, J.
HOFFSTADT
We concur:
_______________________, P.J. _______________________, J.
BOREN ASHMANN-GERST

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