People v. Edwards CA2/3

Filed 7/25/16 P. v. Edwards CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B263931

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA060075)
v.

RHETT E. EDWARDS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Christopher G. Estes, Judge. Affirmed.
Melissa L. Camacho-Cheung, 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.
_________________________
 Appellant Rhett E. Edwards appeals the trial court’s order denying his petition to
recall his sentence and resentence him pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act. Edwards is currently serving a prison sentence that
includes seven one-year prior prison term enhancements imposed pursuant to Penal Code
section 667.5, subdivision (b).1 After passage of Proposition 47, Edwards successfully
petitioned to have four of the seven prior convictions redesignated as misdemeanors. He
then moved for resentencing in his current case, claiming that his sentence had to be
reduced by four years because the four section 667.5, subdivision (b) enhancements were
predicated upon convictions that had become misdemeanors. We conclude the
enhancements were unaffected by Proposition 47 and affirm the trial court’s order
denying Edwards’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Edwards of transportation of a controlled substance,
methamphetamine (Health & Saf. Code, § 11379, subd. (a)); possession for sale of a
controlled substance, methamphetamine (Health & Saf. Code, § 11378); and false
personation (§ 529, subd. (a)(3)). Edwards admitted suffering one prior drug-related
conviction (Health & Saf. Code, § 11370.2, subd. (c)) and serving 10 prior prison terms
within the meaning of section 667.5, subdivision (b). On January 22, 2014, the trial court
imposed a sentence of 14 years, consisting of the upper term of four years on the
transportation offense, plus a three-year Health and Safety Code section 11370.2,
subdivision (c) enhancement and seven one-year prior prison term enhancements
pursuant to section § 667.5, subd. (b). The court imposed a concurrent three-year term on
count 3, false personation and stayed sentence on count 2, possession for sale, pursuant to
section 654. On October 16, 2015, we affirmed the judgment in an unpublished opinion.
(People v. Edwards (Oct. 16, 2015, B254610.)2

1 All further undesignated statutory references are to the Penal Code.
2 We take judicial notice of our unpublished opinion. (Evid. Code, §§ 459,
subd. (a), 452, subd. (d).)

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 On November 4, 2014, while Edwards was serving his sentence on the current
convictions, the voters enacted Proposition 47, which went into effect the following day.
(People v. Morales (2016) 63 Cal.4th 399, 404; People v. Lynall (2015) 233 Cal.App.4th
1102, 1108.) Proposition 47 amended and enacted various provisions of the Penal and
Health and Safety Codes that reduced certain drug and theft offenses to misdemeanors,
unless committed by ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th
1085, 1091; Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222;
People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328.) These offenses had previously
been either felonies or wobblers. (People v. Rivera, supra, at p. 1091; People v. Lynall,
supra, at p. 1108.) Proposition 47 also enacted section 1170.18, which created a
procedure whereby an eligible defendant who has suffered a felony conviction of one of
the enumerated crimes can petition to have it redesignated as a misdemeanor.
Upon Edwards’s application, in March 2015, pursuant to Proposition 47, section
1170.18, subdivisions (f) and (g), the trial court designated as misdemeanors four of the
seven prior felony convictions that served as the basis for the section 667.5,
subdivision (b) enhancements.
On April 1, 2015, Edwards sought recall of his current sentence and resentencing
on the current offenses pursuant to Proposition 47, section 1170.18. He averred that
because four of the prior felony convictions underlying the section 667.5, subdivision (b)
enhancements had been reduced to misdemeanors, those priors could no longer serve as
predicate offenses supporting imposition of the enhancements. The People opposed
Edwards’s request. After hearing argument from the parties, the trial court denied the
motion, concluding that the section 667.5, subdivision (b) enhancements were imposed
for Edwards’s recidivism, not the underlying criminal conduct, and that Proposition 47
did not “unravel[ ] the underlying [section] 667.5(b) punishment.” Edwards appeals.
DISCUSSION
1. Sections 1170.18 and 667.5, subdivision (b)
Proposition 47 created two separate procedures for redesignating an offense as a
misdemeanor. A defendant who is currently serving a felony sentence for an offense now

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classified as a misdemeanor by Proposition 47 may petition to recall the sentence and
request resentencing. (§ 1170.18, subd. (a); People v. Rivera, supra, 233 Cal.App.4th at
pp. 1092, 1099.) If the petitioner meets the statutory eligibility criteria, he or she is
entitled to resentencing unless the trial court determines, in its discretion, that
resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.18,
subd. (b).) Eligible persons who have already completed their sentences for such
offenses may file an application to have their felony convictions designated as
misdemeanors. (§ 1170.18, subds. (f), (g); People v. Abdallah (2016) 246 Cal.App.4th
736, 743-744; People v. Rivera, supra, at pp. 1093, 1099.)3 Section 1170.18, 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

3 Section 1170.18, subdivisions (a), (b), (f), and (g) provide, in pertinent part:
“(a) 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 the act
that added this section (‘this act’) 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 in accordance with Sections 11350,
11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code, as those sections have been amended or added by this act.
“(b) 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 Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, [as] those sections have been amended or added by this act, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety. . . .
“[¶] . . . [¶]
“(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.
“(g) If the application satisfies the criteria in subdivision (f), the court shall
designate the felony offense or offenses as a misdemeanor.”

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misdemeanor for all purposes,” except in regard to restrictions on the ownership or
possession of firearms. Subdivision (n) states: “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.”
Section 667.5, subdivision (b), requires imposition of a one-year enhancement for
each of a defendant’s prior felony convictions that resulted in a separate term of
imprisonment, when the defendant commits another felony within five years of release
from custody.4 (See People v. Abdallah, supra, 246 Cal.App.4th at p. 740; People v.
Langston (2004) 33 Cal.4th 1237, 1241.) “Imposition of a sentence enhancement under
Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted
of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of
imprisonment; and (4) did not remain free for five years of both prison custody and the
commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993)
6 Cal.4th 559, 563; In re Preston (2009) 176 Cal.App.4th 1109, 1115.)
2. Standard of review and principles of statutory interpretation
Application of Proposition 47 on the facts presented here is a pure question of law
that we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Camp
(2015) 233 Cal.App.4th 461, 467.) When interpreting a voter initiative, our task is to
ascertain and effectuate the voters’ intent. (People v. Park (2013) 56 Cal.4th 782, 796;

4 Section 667.5, subdivision (b) provides, in pertinent part and subject to exceptions
not relevant here, that “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 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.”

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People v. Briceno (2004) 34 Cal.4th 451, 459.) We apply the same principles that govern
interpretation of a statute enacted by the Legislature. Thus, we look first to the language
of the statute, giving the words their ordinary meaning. (People v. Park, supra, at p. 796;
People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) If not ambiguous, the
plain meaning of the statutory language controls, unless it would lead to absurd results
the electorate could not have intended. (People v. Birkett (1999) 21 Cal.4th 226, 231;
People v. Bush (2016) 245 Cal.App.4th 992, 1003.) The statutory language must be
construed in the context of the statute as a whole and the overall statutory scheme.
(People v. Brown (2014) 230 Cal.App.4th 1502, 1509; People v. Bush, supra, at p. 1003.)
When the statutory language is ambiguous, we refer to other indicia of the voters’ intent,
particularly the analyses and arguments contained in the official ballot pamphlet. (People
v. Superior Court (Pearson), supra, at p. 571; People v. Shabazz (2015) 237 Cal.App.4th
303, 313.)
3. Redesignation of an offense as a misdemeanor under Proposition 47 does not
retroactively alter the designation of that crime for purposes of imposition of an
enhancement imposed before the redesignation
Edwards contends that because his four prior convictions were reduced from
felonies to misdemeanors, they can no longer be used to enhance his sentence under
section 667.5. After a prior is designated a misdemeanor, he argues, “there is no longer a
felony conviction for which an enhancement under section 667.5(b) can be imposed.”
Therefore, he avers, the trial court should have reduced the sentence on his current crimes
by four years. We disagree.
Our California Supreme Court is currently considering whether a defendant is
eligible for resentencing on a section 667.5, subdivision (b) enhancement after the
underlying felony is reclassified as a misdemeanor pursuant to Proposition 47. (People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; see
also, e.g., People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016,
S233539; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016,

6
S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016,
S233011.)
The trial court did not err. By its plain terms, Proposition 47 does not provide a
mechanism for striking enhancements retroactively. (People v. Jones (July 7, 2016,
E063745) __ Cal.App.4th __ [2016 Cal.App. Lexis 550, *2, 8].) Section 1170.18,
subdivision (a) provides that a person currently serving a sentence for a conviction of a
felony or felonies, who “would have been guilty of a misdemeanor under 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 in accordance with Sections 11350, 11357, or 11377
of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the
Penal Code, as those sections have been amended or added by this act.” Edwards is not
currently serving a sentence for any of the offenses that were reduced to misdemeanors
by Proposition 47. His current crimes are transportation of methamphetamine,
possession of methamphetamine for sale, and false personation, none of which are among
the enumerated offenses eligible for resentencing under Proposition 47.
Section 1170.18 also provides that a person who has completed his sentence for a
felony or felonies who would have been guilty of a misdemeanor under Proposition 47,
had it been in effect at the time of the offense, may apply to “have the felony conviction
or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) Edwards has
already received the relief to which he is entitled under subdivision (f), in that his prior
convictions have been redesignated as misdemeanors. Neither subdivisions (a) nor (f) of
section 1170.18 provide for resentencing, striking, or dismissing sentence enhancements.
Section 1170.18 refers only to resentencing and redesignation of convictions, not
enhancements. (People v. Jones, supra, ___ Cal.App.4th at p. __ [2016 Cal.App. Lexis
550, at p. *10].) An enhancement is not a felony or a misdemeanor; it is an additional
term of imprisonment, imposed for the defendant’s criminal history or circumstances
involved in commission of the crime. (See People v. Jefferson (1999) 21 Cal.4th 86, 101;
Cal. Rules of Court, rule 4.405(3).) Neither the Proposition 47 ballot materials nor

7
section 1170.18 itself mention recidivist enhancements, and Proposition 47 did not
amend section 667.5. Proposition 47 did not provide a procedure for resentencing on an
ineligible felony simply because an offense underlying an enhancement was affected. “It
follows that nothing in the language of section 1170.18 allows or even contemplates the
retroactive redesignation, dismissal, or striking of sentence enhancements imposed in a
final judgment entered before Proposition 47 passed, even where the offender succeeds in
having the underlying conviction itself deemed a misdemeanor.” (People v. Jones, at
p. __ [2016 Cal.App. Lexis 550, at p. *10].) To the contrary, the statement in section
1170.18, subdivision (n), that “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,” suggests the resentencing and redesignation mechanisms in section 1170.18,
subdivisions (a) and (f) are the only avenues of relief available.
Edwards argues that the plain language of section 1170.18, subdivision (k), which
states that any felony conviction that is recalled and resentenced or designated as a
misdemeanor “shall be considered a misdemeanor for all purposes,” unambiguously
requires that once a prior conviction is redesignated a misdemeanor, enhancements based
upon the prior’s felony status are no longer valid. In support, he relies upon People v.
Park, supra, 56 Cal.4th 782. We disagree. Proposition 47’s “misdemeanor for all
purposes” language tracks that used in section 17, subdivision (b), pertaining to the effect
of a judicial declaration that a wobbler is to be considered a misdemeanor. (§ 17,
subd. (b)(3);5 People v. Abdallah, supra, 246 Cal.App.4th at p. 745; People v. Rivera,
supra, 233 Cal.App.4th at pp. 1094, 1100.) In construing the “misdemeanor for all

5 Section 17 provides in pertinent part: “(b) When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or on application of the
defendant or probation officer thereafter, the court declares the offense to be a
misdemeanor.”

8
purposes” language in section 17, subdivision (b), our Supreme Court has “stated that the
reduction of the offense to a misdemeanor does not apply retroactively.” (People v.
Rivera, supra, at p. 1100.) “If ultimately a misdemeanor sentence is imposed, the offense
is a misdemeanor from that point on, but not retroactively . . . .” (People v. Feyrer (2010)
48 Cal.4th 426, 439; see People v. Moomey (2011) 194 Cal.App.4th 850, 857.)
Rather than supporting Edwards’s position, People v. Park undercuts it. There,
the defendant was convicted of a felony in 2003. The trial court suspended imposition of
sentence and placed him on probation. In 2006 the court reduced the conviction to a
misdemeanor pursuant to section 17, subdivision (b)(3). (People v. Park, supra,
56 Cal.4th at p. 787.) When the defendant was convicted in 2007 of a new felony, the
court imposed a five-year serious felony enhancement pursuant to section 667,
subdivision (a), predicated on the 2003 felony conviction. (People v. Park, supra, at
pp. 787-788.) Construing section 17’s “misdemeanor for all purposes” language, Park
concluded that “when a wobbler is reduced to a misdemeanor in accordance with the
statutory procedures, the offense thereafter is deemed a ‘misdemeanor for all purposes,’
except when the Legislature has specifically directed otherwise.” (Park, supra, at p. 795,
italics added.) Accordingly, “when a wobbler has been reduced to a misdemeanor the
prior conviction does not constitute a prior felony conviction within the meaning of
section 667(a).” (Id. at p. 799.) Significant to our analysis here, Park recognized that
“until the court actually exercises its discretion to reduce a wobbler to a misdemeanor
under section 17(b), the offense is deemed a felony for all purposes.” (Id. at p. 800.) The
court explained: “There is no dispute that . . . defendant would be subject to the section
667(a) enhancement had he committed and been convicted of the present crimes before
the court reduced the earlier offense to a misdemeanor.” (Id. at p. 802, italics added.)
Proposition 47 and section 17, subdivision (b) both pertain to the effect of
redesignation of an offense as a misdemeanor. (People v. Abdallah, supra,
246 Cal.App.4th at p. 745.) Because identical language appearing in separate statutory
provisions should be interpreted the same way when the provisions cover analogous
subject matter (People v. Rivera, supra, 233 Cal.App.4th at p. 1100; People v. Abdallah,

9
supra, at p. 745), we presume the voters intended the same construction in section
1170.18, subdivision (k). Here, Edwards’s prior offenses were not redesignated as
misdemeanors pursuant to Proposition 47 until after sentence had been imposed on his
current crimes, and therefore the language in subdivision (k) does not preclude
imposition of the enhancements.6
Other authorities cited by Edwards do not suggest a different result.7 In People v.
Flores (1979) 92 Cal.App.3d 461, the defendant was convicted in 1966 of felony
marijuana possession. (Id. at p. 470.) In 1975 the Legislature amended the law to make
marijuana possession a misdemeanor. (Ibid.) The amendment stated that a “ ‘record of a
conviction for an offense specified . . . shall not be considered . . . for any purposes
. . . .’ ” (Id. at p. 471, italics omitted.) In 1977 the defendant was charged with selling
heroin and, upon his conviction, the trial court imposed a section 667.5 enhancement
based on the 1966 marijuana possession. (People v. Flores, supra, at p. 470.) The
appellate court concluded the enhancement was improperly imposed in light of the
“express language of the statute and the obvious legislative purpose” of the amendment.
(Id. at p. 473.) In Gebremicael v. California Com. on Teacher Credentialing (2004)
118 Cal.App.4th 1477, the court concluded that a mandatory denial provision of the

6 People v. Abdallah recently held that in light of section 1170.18, subdivision (k),
“where . . . a prior conviction is no longer a felony at the time the court imposes a
sentence enhancement under section 667.5, Proposition 47 precludes the court from using
that conviction as a felony merely because it was a felony at the time the defendant
committed the offense.” (People v. Abdallah, supra, 246 Cal.App.4th at p. 747, italics
added.) As noted, here the offenses upon which the section 667.5 enhancements were
predicated were not redesignated until after sentence was imposed on the current crimes,
and Abdallah is not inconsistent with our analysis. We express no opinion on whether
section 1170.18, subdivision (k) precludes a sentencing court from imposing a section
667.5, subdivision (b) enhancement when the underlying felony is designated a
misdemeanor before commission of and sentencing on the current crimes.
7 After Edwards filed his reply brief, review was granted in People v. Buycks,
another case upon which he relies. (People v. Buycks (2015) 241 Cal.App.4th 519,
review granted Jan. 20, 2016, S231765.) Accordingly, we do not consider Buycks.

10
Education Code did “not apply to [plaintiff] because at the time of his applications he
stood convicted of a misdemeanor, not a felony.” (Id. at p. 1481.) Gebremicael
acknowledged that “[r]elief under Penal Code section 17, subdivision (b), is not
retroactive in operation.” (Id. at p. 1482.) Instead, “once a court has reduced a wobbler
to a misdemeanor pursuant to Penal Code section 17, the crime is thereafter regarded as a
misdemeanor ‘for all purposes.’ ” (Id. at p. 1483, italics added.) In People v. Gilbreth
(2007) 156 Cal.App.4th 53, the defendant’s conviction for possession of a firearm by a
felon was reversed because his predicate felony conviction had been reduced to a
misdemeanor before he committed and was charged with the felon-in-possession offense.
(Id. at pp. 55, 57-58.) Thus in Flores, Gebremicael, and Gilbreth, as in Park, and in
contrast to the present case, the current offense was committed and sentence was imposed
after the earlier offense had been reduced to a misdemeanor. The cited cases do not stand
for the proposition that a current sentence must be altered because subsequent to
sentencing on the current crimes, the convictions that gave rise to the enhancements were
reduced to misdemeanors.
Next, Edwards contends that because his current convictions were not final at the
time the prior convictions were redesignated, the rule of In re Estrada (1965) 63 Cal.2d
740 (Estrada), applies to require retroactive application of Proposition 47. Again, we
disagree. Penal statutes are not given retroactive effect unless a contrary legislative intent
is apparent. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 319.) Section 3 “erects a
strong presumption of prospective operation” and codifies “ ‘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 . . .
must have intended a retroactive application.’ ” (People v. Brown, supra, at pp. 319,
324.) A statute that is ambiguous with respect to retroactive application is construed to
be unambiguously prospective. (Id. at p. 324.)
Estrada established an exception to this general rule. (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1195, disapproved on another point in People v. Rangel (2016)
62 Cal.4th 1192, 1216.) Estrada held: “When the Legislature amends a statute so as to

11
lessen the punishment it has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as punishment for the commission of
the prohibited act. It is an inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply. The amendatory act
imposing the lighter punishment can be applied constitutionally to acts committed before
its passage provided the judgment convicting the defendant of the act is not final.”
(Estrada, supra, 63 Cal.2d at p. 745; People v. Hajek and Vo, supra, at pp. 1195-1196.)
Estrada is “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.]” (People v. Hajek and Vo, at p. 1196.)
Our Supreme Court’s recent decision in People v. Conley (June 30, 2016,
S211275) __ Cal.4th __ [2016 Cal. Lexis 4578]), suggests the Estrada presumption
simply does not apply to Proposition 47. In Conley, the defendant was sentenced under
the Three Strikes law. While his appeal was pending, the electorate enacted the Three
Strikes Reform Act of 2012 (the Reform Act), which included a resentencing provision
(§ 1170.126) very similar to that created by Proposition 47. The defendant argued that
because his judgment was not final when the Reform Act was enacted, he was entitled to
automatic resentencing. (Conley, supra, __ Cal.4th at p. __ [2016 Cal. Lexis 4578, at
pp. *2, 6-8, 10].) Our Supreme Court disagreed. It reasoned that, unlike the statute at
issue in Estrada, “the Reform Act is not silent on the question of retroactivity. Rather,
the Act expressly addresses the question in section 1170.126, the sole purpose of which is
to extend the benefits of the Act retroactively. . . . By its terms, [section 1170.126] draws
no distinction between persons serving final sentences and those serving nonfinal
sentences, entitling both categories of prisoners to petition courts for recall of sentence
under the Act.” (Conley, at p. __ [2016 Cal. Lexis 4578, at pp. *13-14].) “The Estrada
rule rests on an inference that, in the absence of contrary indications, a legislative body

12
ordinarily intends for ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that are final and sentences
that are not. [Citation.] In enacting the recall provision, the voters adopted a different
approach. They took the extraordinary step of extending the retroactive benefits of the
[Reform Act] beyond the bounds contemplated by Estrada—including even prisoners
serving final sentences within the Act’s ameliorative reach—but subject to a special
procedural mechanism for the recall of sentences already imposed. In prescribing the
scope and manner of the Act’s retroactive application, the voters did not distinguish
between final and nonfinal sentences, as Estrada would presume, but instead drew the
relevant line between prisoners ‘presently serving’ indeterminate life terms—whether
final or not—and defendants yet to be sentenced.” (Id. at pp. __ [2016 Cal. Lexis 4578,
at pp. *14-15].) The nature of the recall mechanism “call[ed] into question the central
premise underlying the Estrada presumption . . . .” (Id. at p. __ [2016 Cal. Lexis 4578, at
pp. *15].) “Where, as here, the enacting body creates a special mechanism for
application of the new lesser punishment to persons who have previously been sentenced,
and where the body expressly makes retroactive application of the lesser punishment
contingent on a court’s evaluation of the defendant’s dangerousness, we can no longer
say with confidence, as we did in Estrada, that the enacting body lacked any discernible
reason to limit application of the law with respect to cases pending on direct review.”
(Id. at pp. *16-17.) As applied here, Conley’s reasoning suggests that the fact Edwards’s
judgment on his current convictions was not yet final when his priors were redesignated
is irrelevant.
Moreover, even assuming Estrada applies in the context of Proposition 47, its
application is not warranted here. Section 667.5 enhancements arise from a defendant’s
status as a recidivist. (See generally People v. Gokey (1998) 62 Cal.App.4th 932, 936.)
The purpose of a section 667.5, subdivision (b) enhancement is to punish individuals who
have shown that they are hardened criminals who are undeterred by the fear of prison.
(People v. Abdallah, supra, 246 Cal.App.4th at p. 742; In re Preston, supra,
176 Cal.App.4th at p. 1115.) A defendant who refuses to reform after serving time in

13
prison is more dangerous than one who simply commits, in the first instance, one of the
theft or drug offenses affected by Proposition 47. There is no reason to assume or infer
the electorate intended Proposition 47 to ameliorate punishment for recidivists who fall
within the parameters of section 667.5, subdivision (b). As explained ante, Proposition
47 did not amend section 667.5, nor did it expressly provide for a collateral challenge to
sentence enhancements. Nothing in the ballot materials indicates an intent to allow for
the retroactive collateral consequences at issue here. Therefore it cannot readily be
inferred that, vis-a-vis application of provisions enhancing punishment due to a
defendant’s recidivism, the electorate has indicated a section 667.5 enhancement based
on one of the affected offenses was too harsh. In re Kirk (1965) 63 Cal.2d 761, cited by
Edwards, does not address the situation here, i.e., the application of Estrada to an
enhancement provision.
Edwards argues that the electorate’s clear purpose in enacting Proposition 47 was
to reduce punishment for petty crimes, thereby saving money on incarceration costs and
alleviating prison overcrowding. He reasons that interpreting section 1170.18 to prohibit
section 667.5, subdivision (b) sentence enhancements based on such petty crimes would
promote Proposition 47’s purpose and intent. But where the statutory language is plain
and unambiguous, as is the case with section 1170.18, “there is no need for construction
and the judiciary should not indulge in it.” (People v. Massicot (2002) 97 Cal.App.4th
920, 925; People v. Jones, supra, __ Cal.App.4th at p. __ [2016 Cal.App. Lexis 550, at
p. *8]; People v. Vasquez (2016) 247 Cal.App.4th 513, 519.) In any event, giving
redesignations retroactive effect in regard to section 667.5, subdivision (b) enhancements
would require a court to resentence on any offense – including violent crimes – if an
enhancement is predicated on a redesignated offense. This would undercut the
electorate’s intent that persons convicted of crimes such as murder, rape, and child
molestation not benefit from Proposition 47. (See Voter Information Guide, General
Election (Nov. 4, 2014) § 3, subd. (1), p. 70.)
Edwards further argues that section 1170.18 lists only one exception, that for
firearm ownership and possession. From this, he reasons that the canon of statutory

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construction expressio unius est exclusio alterius suggests the voters did not intend for
any other exception to apply. But the fact that the electorate excepted firearm ownership
from the “misdemeanor for all purposes” language does not clearly imply it intended to
allow the retroactive collateral consequences Edwards advocates. A limitation on how
the statute applies is not an indicator the electorate intended section 1170.18 to be free of
temporal limitations.
Nor are we persuaded that the directives in sections 15 and 18 of Proposition 47,
that the initiative’s provisions should be “broadly” and “liberally” construed, require the
result Edwards seeks. (Voter Information Guide, General Election, supra, Text of
Proposed Laws, §§ 15, 18, p. 74.) 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.” (DiGenova v. State Board of Education
(1962) 57 Cal.2d 167, 174.) In the absence of express language in section 1170.18
allowing the “retroactive dismissal or striking of enhancements,” we cannot infer voters
intended Proposition 47 to apply retroactively to invalidate sentence enhancements based
on offenses now designated as misdemeanors. (People v. Jones, supra, __ Cal.App.4th at
p. __ [2016 Cal.App. Lexis 550, at p. *12].)
Finally, the rule of lenity does not compel a contrary result. The rule of lenity
applies as a tie-breaking principle where two reasonable interpretations of a statute stand
in relative equipoise. (People v. Ramirez (2014) 224 Cal.App.4th 1078, 1085.) The rule
applies only when a reviewing court can do no more than guess at what the Legislature,
or electorate, intended. (Id. at p. 1086; People v. Manzo (2012) 53 Cal.4th 880, 889.) In
our view, there are not two equally reasonable interpretations of section 1170.18 at issue
here.

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 DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

EDMON, P. J.

HOGUE, J.

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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