Filed 7/13/16 P. v. Castillo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041972
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1349126)

         v.

RACHELLE KATHERINE CASTILLO,

         Defendant and Appellant.


         After admitting a violation of her probation, defendant Rachelle Katherine Castillo
was ordered to serve two months in jail and probation was reinstated. On appeal, she
contends that the court should have designated one of her two convictions as a
misdemeanor under Penal Code section 1170.181 without the requirement of a petition
for recall and resentencing. We will affirm the order.
                                                     Background
         On March 4, 2013, pursuant to a negotiated disposition, defendant pleaded no
contest to one count of possessing methamphetamine (Health & Saf. Code, § 11377,
subd. (a)) and one count of resisting, delaying, and obstructing an officer (§ 148,
subd. (a)(1)). The trial court suspended imposition of sentence and placed defendant on
three years’ formal probation, conditioned on a term of eight months in county jail.

         1
        All further statutory references are to the Penal Code except as otherwise
specified. Section 1170.18, part of the “Safe Neighborhoods and Schools Act,” was
enacted by the voters on November 4, 2014 in passing Proposition 47. (Proposition 47,
as approved by voters, Gen. Elec. (Nov. 4, 2014).
An additional charge, possessing controlled substance paraphernalia, was dismissed,
along with an enhancement allegation that she was out of custody on her own
recognizance for burglary when she possessed the methamphetamine.
       On May 22, 2014, the court revoked probation. According to the probation
officer, she had failed to report for a scheduled office appointment, she had tested
positive for amphetamine in February, she had failed to pay victim restitution or the
previously ordered fines and fees, and she had failed to provide proof of enrollment in a
substance abuse counseling program.
       On November 5, 2014, section 1170.18 became effective following the passage of
Proposition 47 by the voters the previous day. On November 20, 2014, defense counsel
announced that he had “a petition in hand” to reduce defendant’s offenses to
misdemeanors under Proposition 47, given his understanding that he “cannot have this
amended orally.”2 A hearing took place five days later, at which defendant admitted
violating probation. The court reinstated probation and continued the matter for
resolution of the Proposition 47 petition.
       At the continued hearing on December 19, 2014, the parties and the court
discussed “what it means to be currently serving a sentence under . . . [section 1170.18],”
as applied to several defendants then before the court. Defense counsel argued that there
had to be an entry of final judgment for the filing of a petition to be required; a person on
probation with imposition or execution of sentence suspended, on the other hand, has not
had a “final judgment of conviction” entered and should not be viewed as “currently
serving a sentence” within the meaning of section 1170.18. A probationer therefore was
automatically entitled to a reduced sentence without the necessity of a petition.


       2
        Defendant characterizes this statement as an oral motion to redesignate count 1
as a misdemeanor. There is no indication in the reporter’s transcript that this was
anything but a presentation of a written motion, based on counsel’s assumption that an
oral motion would not be permitted.

                                                2
The district attorney maintained, however, that probation, as commonly understood, was
a sentence and was thus subject to section 1170.18.
       The trial court rejected the argument that a probationer should benefit from the
redesignation by operation of law without being required to submit to the procedures set
forth in section 1170.18. On December 23, 2014, and again in a January 20, 2015
amended order, the court ruled that “[n]othing in the express language of Proposition 47
suggests it should be applied only to persons who are denied probation and formally
sentenced, or only to those granted probation whose sentence is imposed but execution
suspended. Instead, the expressed statutory intent strongly indicates [that] the provisions
of section 1170.18(a) apply to all persons ‘sentenced’ as that term is commonly and
colloquially understood—and as any voter would likely understand this term.” The
defense view was “contrary to the voters’ intent and overly restrictive, and inconsistent
with the rule of lenity.” Accordingly, the court concluded, “in order for these defendants
to now receive the benefits of Proposition 47, they must proceed by petition for recall of
sentence under section 1170.18(a) and be subject to the requirements of subdivision (b).”
The court limited its ruling to those probationers for whom imposition of sentence was
suspended.
       On January 21, 2015, the required petition having been filed, the court resentenced
defendant. It redesignated the possession of methamphetamine count as a misdemeanor,
again suspended imposition of sentence, and ordered defendant to complete two years of
court probation. Defendant then filed this timely appeal and obtained a certificate of
probable cause.3

       3
         The People have moved to dismiss the appeal for lack of appellate jurisdiction,
asserting that “the Notice of Appeal is untimely from any order that might arguably be
appealable.” Among the orders listed in defendant’s notice of appeal, however, is that of
January 21, 2015, the date on which the court terminated probation, redesignated count 1
as a misdemeanor, and again suspended imposition of sentence with a new two-year
probation order. The People’s motion for dismissal on this ground is denied.

                                               3
                                         Discussion
       Defendant renews her argument that as a probationer, she was not “currently
serving a sentence for a [felony] conviction,” the factual premise of eligibility for
resentencing under section 1170.18. In defendant’s view, the court’s requirement that
she file a petition was inconsistent with the voters’ intent in passing Proposition 47 and
violated her equal protection rights. Citing In re Estrada (1965) 63 Cal.2d 740, she
contends that she was entitled to automatic relief under Health and Safety Code
section 11377 as amended by Proposition 47, because the new law must be applied
retroactively to all those, like her, who were not “currently serving a sentence” under the
pre-Proposition 47 law. Defendant further asserts that the court’s order again imposing
probation was unauthorized, because “nothing in . . . section 1170.18 authorizes a court
to place a resentenced defendant on probation or any type of supervised release other than
parole.”
       Defendant has anticipated the People’s initial response: that the issue raised by
defendant—whether she was bound by the procedures outlined in section 1170.18—is
moot. Defendant contends that it is not moot, because the petitioning procedure resulted
in her having a lifetime ban on owning or possessing a firearm under section 1170.18,
subdivision k.4
       The People maintain that defendant was not prejudiced by the petitioning
requirement because “[s]he ultimately received all the relief to which she was entitled
under Proposition 47 and would not have been relieved of the firearms ban.” We agree.
It is undisputed that defendant suffered a felony conviction for second degree burglary in

       4
         Subdivision (k) of section 1170.18 states, in pertinent part: “Any felony
conviction that is recalled and resentenced under subdivision (b) . . . 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.”

                                                4
an accompanying case No. C1244239, for which she had received (and subsequently
violated) probation. Defendant acknowledges that she was already subject to a firearms
ban from this burglary conviction, but she suggests that “she may be able to obtain relief
from the ban if this court decides in this appeal that the trial court should have designated
count one a misdemeanor as a matter of law.” Defendant cites neither factual support nor
legal authority for this speculative assertion.5
       “ ‘An action that involves only abstract or academic questions of law cannot be
maintained. [Citation.] And an action that originally was based on a justiciable
controversy cannot be maintained on appeal if all the questions have become moot by
subsequent acts or events. A reversal in such a case would be without practical effect,
and the appeal will therefore be dismissed.’ [Citation.]” (People v. Herrera (2006) 136
Cal.App.4th 1191, 1198.) In this case, defendant has not shown that as to her, resolution
of the issue presented would have any “practical effect.” (Ibid.) Thus, we need not
address the merits of defendant’s claim that she was entitled to misdemeanor sentencing
without the petitioning procedures outlined in section 1170.18.
                                         Disposition
       The order is affirmed.




       5
         Defendant further suggests that the issue is not moot “because the answer will
determine whether she could have been placed on probation or parole after resentencing.”
This point is not sufficiently developed to be cognizable as a discrete contention. (See
People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; People v. Miralrio (2008) 167
Cal.App.4th 448, 452, fn. 4.) The underlying argument on which it is premised—that the
court at resentencing should not have placed her on any supervised release other than
parole—is unsupported by the authority defendant cites, section 1170.18, subdivision (d),
which provides for parole to those who have completed their sentences.

                                                   5
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




People v. Castillo
H041972
