Filed 12/15/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064243
v. (Super.Ct.No. SWF1402787)
JOHN WILLIAM EVANS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judge Elaine M. Kiefer,
Judge. Affirmed with directions.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Marvin
E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant John William Evans appeals his 2015 sentence, arguing it improperly
includes a one-year enhancement under Penal Code section 667.5, subdivision (b)
(Section 667.5(b)) for an offense the trial court designated a misdemeanor shortly after
imposing the enhancement. The People argue the sentence is lawful because the offense
was a felony at the time the court imposed the enhancement and Proposition 47 does not
apply retroactively to enhancements. While we agree Proposition 47 does not apply
retroactively to enhancements, we conclude that, under the California Supreme Court’s
holding in In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada), Proposition 47 applies to
Section 667.5(b) enhancements in judgments that have not yet become final. Because the
offense on which Evans’s Section 667.5(b) enhancement was based is no longer a felony
and his judgment is not yet final, Evans falls into the narrow class of offenders who are
entitled to relief under Estrada. We therefore strike the enhancement from his sentence.
I
PROCEDURAL BACKGROUND
On February 9, 2015, a jury found Evans guilty of battery of a cohabitant (Pen.
Code, § 243, subd. (e)(1)), abuse of a dependent adult (Pen. Code, § 368, subd. (c)),
assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and
violation of a no contact order (Pen. Code, § 166, subd. (c)(1)). Evans admitted having a
prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1)) and
three prison priors (Pen. Code, § 667.5, subd. (b)). The prison prior at issue here is for a
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2007 felony possession of a controlled substance conviction (Health & Saf. Code, § 1377,
subd. (a)).
On April 17, 2015, the trial court granted Evans’s request to continue sentencing
to May 15, 2015. In advance of the continued sentencing hearing, Evans asked the court
to strike his 2007 prison prior enhancement. The People opposed his request, arguing
Proposition 47 does not apply to Section 667.5(b) prior prison term enhancements
because such enhancements are meant to punish recidivists, regardless of the
classification of the underlying offense at the time of sentencing. In the alternative, the
People argued that even if Proposition 47 does apply to Section 667.5(b) enhancements,
it does not apply to them retroactively. They pointed out Evans’s 2007 drug conviction
currently remained a felony because the hearing on his Proposition 47 reclassification
petition was not scheduled to take place until May 29, 2015, several days after his
sentencing hearing.
At the May 15, 2015 sentencing hearing, the trial court decided to continue the
hearing again because “Mr. Evans has currently a petition to have that [2007 drug
conviction] reduced pursuant to Prop. 47” and the court needed time to research
Proposition 47’s application to enhancements. The continued hearing took place on June
26, 2015. At the start of the hearing, the court noted it was unable to locate any
information on the outcome of Evans’s reclassification petition. Defense counsel added,
“those [Proposition 47] cases just have been getting continued, and they haven’t been
getting resolved, so my guess is . . . there’s going to be another status hearing in about a
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month.” The court refused to grant another continuance because sentencing had already
been continued “several [times in] . . . the last six months.” Defense counsel again
requested the court strike the prison prior for his 2007 conviction on the ground the
underlying offense now qualified as a misdemeanor under Proposition 47. The court
thought the issue was “unclear,” but ultimately agreed with the People that Evans’s
“status as a recidivist” warranted imposition of the enhancement. The court imposed a
total term of nine years in prison, which included a one-year prison prior enhancement
for the 2007 conviction. Less than a month after Evans filed his notice of appeal
challenging his sentence, the trial court granted his Proposition 47 petition and designated
his 2007 conviction a misdemeanor.1
II
DISCUSSION
Penal Code section 1170.18, subdivision (k) (Section 1170.18(k)) directs that any
felony reclassified a misdemeanor under Proposition 47 “shall be considered a
misdemeanor for all purposes.” (Italics added.) Evans argues the phrase “for all
purposes” includes for purposes of relief from Section 667.5(b) enhancements. The
People agree Section 1170.18(k) provides relief from enhancements, but they argue the
relief should be available only if the reclassification occurs before imposition of the
enhancement. They argue Evans seeks an impermissibly retroactive application of
1We granted Evans’s request to take judicial notice of a September 9, 2015
minute order showing the trial court granted his Proposition 47 petition.
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Section 1170.18(k) because reclassification of his 2007 drug offense occurred after the
court imposed the enhancement in his 2015 sentence. Evans contends he is entitled to the
benefits of Section 1170.18(k) because his 2015 sentence is not yet final.
This case therefore asks us to decide whether the benefits of Section 1170.18(k)
apply to non-final judgments. Before we can answer this question, however, we must
first determine whether section 1170.182 provides relief from enhancements at all.
Although the People concede Section 1170.18(k) provides prospective relief from
enhancements, we must undertake an independent review of Proposition 47, applying the
same principles that govern statutory construction. (Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 916; People v. Rizo (2000) 22 Cal.4th
681, 685.)
A. Section 1170.18(k) Applies Prospectively to Enhancements
Proposition 47 changed portions of the Health and Safety and Penal Codes to
reduce certain drug possession and theft-related offenses from felonies or wobblers to
misdemeanors, unless the offenses were committed by certain ineligible offenders. The
initiative also created a petitioning procedure designed to allow offenders who had
previously been convicted of reclassified offenses to have their convictions designated
misdemeanors and their sentences reduced. (Pen. Code, § 1170.18, subds. (a), (b), (f), &
(g); People v. Jones (2016) 1 Cal.App.5th 221, 228 (Jones).) The plain language of the
initiative made those changes retroactive, that is Proposition 47 “allows offenders to seek
2 Undesignated statutory citations refer to the Penal Code.
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redesignation of and resentencing on felony convictions” even if they “have become
final.” (Jones, at p. 228.)
The plain language of Proposition 47 also explicitly anticipates misdemeanor
reclassification will affect the collateral consequences of felony convictions. Among
other things, suffering a felony conviction may result in the offender losing the right to
vote (Elec. Code, § 2101), losing the right to own or possess a firearm (Pen. Code,
§ 29800, subd. (a)(1)), being required to provide biological samples to law enforcement
for identification purposes (Pen. Code, § 296, subd. (a)(1)), and, if the offender is
convicted of a felony in the future, losing probation as a sentencing option (Pen. Code,
§ 1203, subd. (e)) and being exposed to sentence enhancements (Pen. Code, § 667.5,
subd. (b)). To ensure qualified offenders gain relief from those collateral consequences,
Section 1170.18(k) directs “[a]ny felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered
a misdemeanor for all purposes, except that such resentencing shall not permit that
person to own, possess, or have in his or her custody or control any firearm.” (Italics
added.)
Section 1170.18(k)’s “for all purposes” language is broad, indicating the voters
intended it to apply to all collateral consequences except firearm possession. (Hisel v.
County of Los Angeles (1987) 193 Cal.App.3d 969, 974 [statement of a “specific
exception[] implies the exclusion of others”].) In People v. Abdallah (2016) 246
Cal.App.4th 736 (Abdallah), our colleagues in Division Seven of the Second Appellate
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District concluded Section 1170.18(k) reflects the voters’ clear intention that—with the
exception of firearm possession—reclassified misdemeanors be treated like any other
misdemeanor offense, including for purposes of enhancements under section 667.5,
subdivision (a). (Abdallah, at p. 746 [“Once the trial court recalled Abdallah’s 2011
felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k),
reclassified that conviction as a misdemeanor ‘for all purposes’ ”].) The Abdallah court
held the defendant’s one-year enhancement was improper because the trial court imposed
it after the underlying felony had been reclassified. (Ibid. [holding trial court erred by
imposing enhancement because “Abdallah was not a person who had committed ‘an
offense which result[ed] in a felony conviction’ ”].) We agree with Abdallah’s
interpretation that Section 1170.18(k) prohibits a court from imposing an enhancement
based on an offense that has already been reclassified a misdemeanor.
This interpretation finds support in section 17, subdivision (b) (Section 17(b)),
which contains similar language directing a crime designated a misdemeanor “is a
misdemeanor for all purposes.” Section 17(b) addresses when a crime that can be
punished as a felony or a misdemeanor (a wobbler) must be treated as a misdemeanor.
The statute directs that an offense “is a misdemeanor for all purposes” when, among
other circumstances, “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.” (§ 17,
subd. (b)(3).) The California Supreme Court has interpreted that language to mean once
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a court designates a wobbler offense a misdemeanor, “the offense thereafter is deemed a
‘misdemeanor for all purposes,’ except when the Legislature [or electorate] has
specifically directed otherwise.” (People v. Park (2013) 56 Cal.4th 782, 795 (Park).) In
Park, the trial court enhanced a sentence by five years because the offender had suffered
a prior serious felony conviction. However, the court presiding over the prior case had
reduced the felony conviction to a misdemeanor under Section 17(b) before the defendant
had committed the present offense. (Park, at p. 787.) The Supreme Court held “when
the court in the prior proceeding properly exercised its discretion by reducing the [felony]
conviction to a misdemeanor, that offense no longer qualified as a prior serious felony . . .
and could not be used . . . to enhance defendant’s sentence.” (Ibid.)
We reach the same conclusion here. (People v. Cornett (2012) 53 Cal.4th 1261,
1269, fn. 6 [recognizing “the rule of statutory construction that identical language
appearing in separate statutory provisions should receive the same interpretation when
the statutes cover the same or analogous subject matter”].) Imposing a one-year
enhancement based on a prison prior under Section 667.5(b) requires proof defendant (1)
was convicted of a felony, (2) was imprisoned as a result, (3) completed the term of
imprisonment, and (4) did not remain free for five years of prison custody and
committing a new offense that resulted in a felony conviction. (In re Preston (2009) 176
Cal.App.4th 1109, 1115.) Once the trial court granted Evans’s petition, “section 1170.18,
subdivision (k) reclassified that conviction as a misdemeanor ‘for all purposes’ ” and he
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no longer satisfied the first element of Section 667.5(b). (Abdallah, supra, 246
Cal.App.4th at p. 746.)
B. Section 1170.18(k) Applies to Non-Final Enhancements
The People argue our conclusion applies Section 1170.18(k) retroactively because
Evans’s 2007 offense was not reclassified until after the trial court imposed the
enhancement in his 2015 sentence. We recently held in Jones that Proposition 47 does
not allow “the courts to strike prison prior enhancements imposed prior to Proposition 47
based on prior convictions designated as misdemeanors after judgment and sentence have
become final.” (Jones, supra, 1 Cal.App.5th at p. 229.) However, Evans does not ask us
to depart from the holding in Jones. Evans asks us to recognize only that petitioners
whose sentences are not yet final when their underlying felony is reclassified may receive
the benefits of Section 1170.18(k). The California Supreme Court’s holding in Estrada
supports Evans’s argument.
Under Estrada, when an amendatory statute mitigates punishment, contains no
saving clause, and “becomes effective prior to the date the judgment of conviction
becomes final,” then “[that statute] and not the old statute in effect when the prohibited
act was committed, applies.” (Estrada, supra, 63 Cal.2d at pp. 744, 748.) Under this
long-settled precedent, the “key date” in deciding whether a defendant receives the
benefit of the statutory change is “the date of final judgment.” (Id. at p. 744.) “A
judgment becomes final when the availability of an appeal and the time for filing a
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petition for certiorari [with the United States Supreme Court] have expired.” (People v.
Smith (2015) 234 Cal.App.4th 1460, 1465.)
The Estrada rule is based on legislative intent. “When the Legislature amends a
statute so as to 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, italics added.) The Supreme Court noted
the Legislature could indicate a desire that a defendant be punished under the law in
existence at the time the offense was committed by enacting a saving clause spelling out
such an intent, but held “[i]f there is no saving clause [the defendant] can and should be
punished under the new law.” (Ibid.)
The same principles guide our interpretation of successful ballot initiatives. (Park,
supra, 56 Cal.4th at p. 796.) As we discussed in part II.A., ante, Section 1170.18(k)
shows the voters specifically anticipated reclassification would have collateral effects and
directs that a reclassified offense “shall be considered a misdemeanor for all purposes.”
(Italics added.) This language is broad and not limited by a saving clause that would
indicate the voters intended offenders should continue being punished under the old law.
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The plain language of the statute therefore indicates the voters intended offenders should
be able to avoid punishment for reclassified offenses imposed through Section 667.5(b)
enhancements, so long as they are not subject to final judgment. Consistent with this
understanding, the statute specifies it does not apply to convictions or sentences that are
subject to final judgment. (§ 1170.18, subd. (n) [“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”].) We therefore conclude the electorate, in passing Proposition
47, determined the penalties for drug possession crimes like Evans’s were too severe and
intended to reduce those penalties in every case to which the proposition constitutionally
could apply. As a result, offenders may challenge prison prior enhancements based on
reclassified convictions so long as the enhanced sentence is not subject to a final
judgment.
Here, Evans’s 2015 sentence had not yet been imposed when he sought to take
advantage of Proposition 47 reclassification and reduce his 2007 felony drug conviction
to a misdemeanor. He asked the trial court to wait to sentence him until after the hearing
on his reclassification petition, but the court did not do so. By the time the trial court
granted his petition, his sentence had already been imposed but it was not yet final
because it was on appeal to this court. Thus, Proposition 47 provided a means for Evans
to mitigate punishment, and he successfully took advantage of that procedure before his
11
sentence became final.3 Evans’s request that we correct his sentence on appeal therefore
does not seek to apply Proposition 47 in a retroactive manner not approved by the voters.
At oral argument, the People argued the Park decision supports the contrary view
based on dicta indicating a defendant whose prior felony sentence the court reduced to a
misdemeanor under Section 17(b) “would be subject to the . . . enhancement had he
committed and been convicted of the present crimes before the court reduced the earlier
offense to a misdemeanor.” (See Park, supra, 56 Cal.4th at p. 802.) The People contend
this language shows Evans is not entitled to relief because he committed and was
convicted of his 2015 offenses before the court reclassified his 2007 offense. Park does
not support such a conclusion.
As we discussed above, the Estrada rule applies to Section 1170.18(k) because
Proposition 47 expresses the electorate’s determination that we have punished a class of
offenders too harshly. That determination implies the benefits of Proposition 47 “should
apply to every case to which it constitutionally could apply,” including to pending cases
in which the judgment is not yet final. (Estrada, supra, 63 Cal.2d at p. 745.)
3 The People contend Estrada’s holding does not apply here because the sentence
for Evans’s 2007 felony drug offense has long been final. The People misunderstand the
finality aspect of the Estrada analysis. The key date is when the sentence including the
enhancement becomes final (i.e., Evans’s 2015 sentence), not when the sentence for the
offense supporting the enhancement became final.
12
Section 17(b) is different. As the Park court explained at length, Section 17(b)
recognizes incarceration in state prison may not be appropriate for some defendants—not
a class of offenders—who commit wobbler offenses. (Park, supra, 56 Cal.4th at p. 790.)
To address this concern, the provision invests the trial court with discretion to designate
wobbler offenses misdemeanors if doing so would be more likely to rehabilitate the
particular offender. (Ibid.) Thus, Section 17(b) is not a provision expressing the
electorate or Legislature’s determination “that its former penalty was too severe and that
a lighter punishment is proper.” (Estrada, supra, 63 Cal.2d at p. 745.) Rather, Section
17(b) intentionally and explicitly leaves that judgment up to the trial court. The Estrada
rule therefore does not apply to Section 17(b) and the Supreme Court’s discussion of that
provision in Park could not implicate, much less answer, the question we face here.
The People’s argument is wrong for the additional reason that Park does not
address retroactivity at all. As discussed above, Park involved the prospective
consequence of the trial court’s decision to designate the defendant’s wobbler offense a
misdemeanor. (Park, supra, 56 Cal.4th at p. 787 [“when the court in the prior
proceeding properly exercised its discretion by reducing the [felony] conviction to a
misdemeanor, that offense . . . could not be used [thereafter] . . . to enhance defendant’s
sentence”].) We therefore conclude the People’s reliance on Park to avoid the
application of the Estrada rule is doubly misguided.4 (See People v. Jenkins (2010) 50
4 We are aware some courts have accepted the People’s argument that Park
precludes applying Section 1170.18(k) to enhancements in non-final sentences. In our
view, these cases are wrongly decided because, as explained, Park did not involve
[footnote continued on next page]
13
Cal.4th 616, 684 [“ ‘The holding of a decision is limited by the facts of the case being
decided, notwithstanding the use of overly broad language by the court in stating the
issue before it or its holding or in its reasoning’ ”].)
Finally, the People argue imposition of the enhancement remains appropriate
despite reclassification on the ground the enhancement is meant to punish Evans for his
recidivism, not for the underlying offense. This argument contravenes the language of
Section 667.5(b), which makes suffering a felony conviction a necessary requirement for
imposing the enhancement. Contrary to the People’s view, Section 667.5(b) is not
intended to punish any and all recidivists. It is reserved only for those who have
committed a felony, served a prison term, and reoffended. (§ 667.5, subd. (b)
[authorizing enhancement only if the offender has a felony conviction and has served a
term of imprisonment as a result]; In re Preston, supra, 176 Cal.App.4th at p. 1115.)
With the passage of Proposition 47, the voters have determined Evans’s 2007 drug
offense never should have been a felony. One consequence of this policy judgment is
that Evans no longer is the type of recidivist Section 667.5(b) was enacted to punish.
[footnote continued from previous page]
application of an ameliorative amendment to the Penal Code under the Estrada rule and
did not involve retroactive application of Section 17(b). In any event, these cases have
been taken up for review by the Supreme Court and depublished.
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III
DISPOSITION
We strike the one-year prison prior term based on Evans’s 2007 conviction and
direct the trial court to issue an amended abstract of judgment reflecting a modified
sentence for a total of eight years in prison and to forward a certified copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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