Filed 3/14/17




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F071500
        Plaintiff and Respondent,
                                                         (Super. Ct. No. LF010286A)
                  v.

GEORGETTE MAE CALL,                                              OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
        Jyoti Malik, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
                                   INTRODUCTION
       After a jury convicted Georgette Mae Call (defendant) of transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of
methamphetamine for sale (id., § 11378) (the new offenses), and after three prior prison
term enhancement allegations were found true in a bifurcated court trial (Pen. Code,
§ 667.5, subd. (b)), those prior convictions were reduced to misdemeanors pursuant to
Proposition 47, “the Safe Neighborhoods and Schools Act” (Proposition 47 or the Act).1
The reduction occurred prior to defendant’s sentencing on the new offenses. On appeal,
defendant asserts the imposition of those three prior prison terms at her sentencing on the
new offenses was error. In the published portion of this opinion, we agree with
defendant. Even though the prior convictions were felonies when defendant committed
the new offenses, and even though the prior prison term allegations were adjudicated
prior to the convictions being reduced to misdemeanors, the reductions occurred prior to
defendant’s sentencing. Since, at the time of sentencing, the prior convictions were no
longer felonies, the prior prison term enhancements could not be imposed. In the
unpublished portion of this opinion, we hold certain fees and related penalty assessments
must be stayed as they were imposed on a count the sentence for which was stayed
pursuant to section 654. We therefore modify the judgment and remand for resentencing.
                              PROCEDURAL HISTORY
       On October 28, 2014, an information was filed in Kern County Superior Court,
charging defendant with three offenses committed on or about August 30, 2014:
transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1),
possession of methamphetamine for sale (id., § 11378; count 2), and possession of




1      Further statutory references are to the Penal Code unless otherwise stated.


                                            2.
methamphetamine (id., § 11377, subd. (a); count 3).2 As to each count, it was alleged
defendant had served three prior prison terms (§ 667.5, subd. (b)) based on three
convictions for receiving stolen property (§ 496, subd. (a)).
       On March 26, 2015, a jury convicted defendant of counts 1 and 2. That same day,
following a bifurcated court trial, the three prior prison term allegations were found to be
true. Defendant had Proposition 47 petitions pending at the time as to all three prior
convictions.
       On April 6 and 10, 2015, prior to defendant’s sentencing, defendant’s three prior
convictions were redesignated and resentenced as misdemeanors pursuant to section
1170.18. On April 17, 2015, she filed a motion to strike the section 667.5, subdivision
(b) enhancements in her current case, arguing they could not be imposed because, under
Proposition 47, it was now “as if [defendant had] never [been] committed to prison,” and
so the prior convictions could not serve as the basis for the enhancements. The People
opposed the motion, arguing, inter alia, that the fact an offense resulting in a prior prison
term was now a misdemeanor under Proposition 47 did not change the validity of the
enhancement because section 667.5, subdivision (b) was concerned with recidivist
behavior.
       The trial court denied defendant’s motion, finding the People’s analysis
persuasive. As to count 1, it sentenced defendant to four years in jail pursuant to section
1170, subdivision (a)(5), plus three years for the prior prison term enhancements. Of the
seven-year total, defendant was ordered to serve the first four years in custody and the
remaining time on mandatory supervision. The court then stayed the sentence on count 2
pursuant to section 654.



2     As the circumstances of the offenses are not pertinent to the issues on appeal, we
dispense with a statement of facts. Count 3 was ultimately dismissed on the People’s
motion.


                                              3.
                                       DISCUSSION
                                              I*
           FAILURE TO STAY FEES AND PENALTY ASSESSMENTS ON COUNT 2
       The probation officer’s report recommended imposition of a consecutive sentence,
together with fees pursuant to Health and Safety Code sections 11372.5 and 11372.7 and
attendant penalty assessments, on count 2. Because, at sentencing, the parties waived
reading of the imposition of fines and fees and relied on the probation officer’s report, it
is unclear whether the trial court intended to impose and stay the fees on count 2. The
sentencing minutes, however, reflect the imposition of the fees and penalty assessments,
as delineated in the probation officer’s report, as to the stayed count.
       Defendant now contends the trial court pronounced an unauthorized sentence
when it failed to stay the fees and attendant penalty assessments on count 2. The People
concede the laboratory analysis fee (Health & Saf. Code, § 11372.5), drug program fee
(id., § 11372.7), and associated penalty assessments imposed as to count 2 must be
stayed. We agree. (People v. Sharret (2011) 191 Cal.App.4th 859, 863-870; see People
v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Tarris (2009) 180
Cal.App.4th 612, 627-628; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332.)
                                              II
                 IMPOSITION OF PRIOR PRISON TERM ENHANCEMENTS
       Proposition 47 was enacted by voters on November 4, 2014, and went into effect
the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) It reduced certain felony or wobbler drug- and theft-related
offenses to misdemeanors, unless committed by a defendant who was ineligible because
he or she had a prior conviction for a “super strike” offense specified in section 667,
subdivision (e)(2)(C)(iv) or an offense requiring sex offender registration pursuant to

*      See footnote, ante, page 1.


                                              4.
section 290, subdivision (c). (See § 1170.18, subd. (i); People v. Lynall (2015) 233
Cal.App.4th 1102, 1108-1109.) Insofar as is pertinent here, it also provided a mechanism
by which a person who completed his or her sentence for a conviction of a felony that
was made a misdemeanor by the Act, could apply to the trial court that entered the
judgment of conviction and have the felony offense designated as a misdemeanor.
(§ 1170.18, subds. (f), (g).)
       One of the felonies reduced to a misdemeanor by the Act was receiving stolen
property with a value not exceeding $950. (§ 496, subd. (a).) This change affected the
convictions underlying all three of defendant’s prior prison term enhancements. The
Attorney General argues the enhancements were properly imposed because, at the time
defendant committed her current offenses, the prior felony convictions had not yet been
reduced.
       Section 1170.18 provides, in pertinent part:

                “(f) A person who has completed his or her sentence for a conviction
       . . . 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.
       [¶] . . . [¶]

              “(k) Any felony conviction that is . . . 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.)
       Defendant contends that once her prior convictions were redesignated as
misdemeanors under subdivision (g) of section 1170.18, they became misdemeanors “for
all purposes” except certain firearm restrictions. Hence, they could not form the basis for
enhancements that subsequently were imposed pursuant to section 667.5, subdivision (b).


                                                5.
        In People v. Johnson (2017) 8 Cal.App.5th 111, petition for review pending (petn.
filed Mar. 8, 2017) (Johnson), we held that where a sentence enhanced by a section
667.5, subdivision (b) prior prison term had already been imposed at the time the felony
that gave rise to the prison term was reduced to a misdemeanor pursuant to
Proposition 47, the redesignation of that prior felony did not alter the current sentence.
(Johnson, supra, at p. 115.) For guidance, we looked to the California Supreme Court’s
analysis in People v. Park (2013) 56 Cal.4th 782 (Park) of the analogous “misdemeanor
for all purposes” language in section 17, subdivision (b)(3). (Johnson, supra, at pp. 118-
119.)
        In Park, the defendant’s sentence for his current offenses was enhanced by five
years, pursuant to section 667, subdivision (a), based on his earlier conviction of a serious
felony. Prior to the defendant’s commission of his current crimes, the trial court reduced
the prior offense to a misdemeanor under section 17, subdivision (b)(3).3 (Park, supra,
56 Cal.4th at p. 787.) Our high court held that “when the court in the prior proceeding
properly exercised its discretion by reducing the . . . conviction to a misdemeanor, that
offense no longer qualified as a prior serious felony within the meaning of section 667,
subdivision (a), and could not be used, under that provision, to enhance defendant’s
sentence.” (Ibid.) The court noted there was “a long-held, uniform understanding 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.” (Id. at p. 795.)




3      Section 17, subdivision (b)(3) states in part: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail . . . , it is a misdemeanor for all purposes . . . [¶] . . . [¶] . . . [w]hen the court
grants probation to a defendant without imposition of sentence and at the time of granting
probation . . . declares the offense to be a misdemeanor.”


                                                6.
       In Johnson, we recognized that the reduction at issue in Park occurred prior to
Park’s commission of his current crimes, whereas in Johnson, the Proposition 47
reduction occurred after Johnson’s commission of, conviction of, and sentence on, his
current crimes. (Johnson, supra, 8 Cal.App.5th at p. 119; see Park, supra, 56 Cal.4th at
p. 787.) We observed that the issue before us was not whether Johnson’s prior
convictions and prison commitment could be used to enhance a future sentence pursuant
to section 667.5, subdivision (b), should he commit a new felony following his release
from custody in his current case, but rather “whether defendant’s current sentence,
enhanced pursuant to section 667.5, subdivision (b), must now be altered because,
subsequent to defendant’s sentencing, the convictions that gave rise to that enhancement
were reduced to misdemeanors pursuant to section 1170.18, subdivision (f). In other
words, does the Act operate retroactively?” (Johnson, supra, at p. 119.) After examining
the presumption of prospective operation contained in section 3, the qualification to this
presumption set forth in In re Estrada (1965) 63 Cal.2d 740, voters’ intent in enacting
Proposition 47, and the purpose of an enhancement under section 667.5, subdivision (b)
— to punish recidivists who have shown they are undeterred by fear of prison (In re
Preston (2009) 176 Cal.App.4th 1109, 1115, People v. Gokey (1998) 62 Cal.App.4th 932,
936) — we concluded Proposition 47 did not “reach back to ancillary consequences such
as enhancements resulting from recidivism considered serious enough to warrant
additional punishment. Accordingly, section 3’s default rule of prospective operation . . .
applies.” (Johnson, supra, 8 Cal.App.5th at p. 122.) We held: “Defendant served a
prison term for the prior convictions at a time the offenses were felonies. It is the service
of that prison term, coupled with defendant’s continuing recidivism, that section 667.5,
subdivision (b) punishes. Absent a clear statement of the electorate’s intent to the
contrary — which we do not find — we conclude that, because defendant served a prison
term for his [prior] convictions . . . at a time when the offenses were felonies, and had his



                                             7.
current sentence enhanced accordingly before the convictions were reduced, he is not
entitled to relief.” (Id. at p. 123.)
         The case now before us stands in a markedly different posture than Johnson. The
receiving stolen property convictions that resulted in defendant’s prior prison terms were
made “misdemeanor[s] for all purposes” except firearm restrictions (§ 1170.18, subd. (k))
prior to her sentencing. In other words, although Proposition 47 does not apply
retroactively to alter a prior prison term enhancement imposed before the felony
conviction underlying that prison term is reduced to a misdemeanor, it does act
prospectively. The reduction, in effect, removes an element of a section 667.5,
subdivision (b) enhancement, the element of having been “convicted of a felony.”4 (See
People v. Evans (2016) 6 Cal.App.5th 894, 902, review granted Feb. 22, 2017, S239635.)
With respect to defendant, this means that had the section 667.5, subdivision (b)
enhancements already been imposed when her Proposition 47 petitions were granted and
the underlying receiving stolen property convictions reduced to misdemeanors, she would
not be entitled to relief. Because the underlying convictions were reduced prior to
sentencing on defendant’s current offenses, however, the requisite prior felony conviction
no longer existed at the time of sentencing, and so imposition of the enhancements was
error.
         We recognize defendant’s prior convictions had not yet been reduced to
misdemeanors at the time the prior prison term enhancement allegations were
adjudicated. (Cf. People v. Kindall (2016) 6 Cal.App.5th 1199, 1201, 1204-1205.)
Moreover, in response to an argument that People v. Feyrer (2010) 48 Cal.4th 426 and

4      “Imposition of a sentence enhancement under . . . 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. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563, italics
added.)


                                             8.
People v. Banks (1959) 53 Cal.2d 370 were contrary to its conclusion, the Park court
stated: “There is no dispute that, under the rule in those cases, defendant would be
subject to the section 667[, subdivision ](a) enhancement had he committed and been
convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor.” (Park, supra, 56 Cal.4th at p. 802, italics added.)
       Nevertheless, as we explained in Johnson, supra, 8 Cal.App.5th at page 120, the
question of retroactivity is ultimately one of voter intent. Our task is to interpret and
apply an initiative’s language so as to effectuate that intent. (Ibid.; see Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.) Park, of course, did not deal with
Proposition 47 or the voters’ intent behind it.
       It is readily apparent Proposition 47 was intended to lessen punishment for
“nonserious, nonviolent crimes like petty theft and drug possession” (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70), in order “to
ensure that prison spending is focused on violent and serious offenses . . . .” (Id., § 2,
p. 70.)5 Voters were also concerned with public safety, however, and, as we explained in
Johnson, nothing in Proposition 47’s language or the related ballot materials indicates
voters intended retroactively to override the operation of section 667.5, subdivision (b).
(Johnson, supra, 8 Cal.App.5th at p. 123.)
       The present case does not involve retroactive application, but rather prospective
application. In our view, contrary to the situation that exists when a felony conviction
underlying a prior prison term enhancement is reduced to a misdemeanor after the
enhancement is imposed, imposing said enhancement after the underlying conviction is
reduced would not comport with — and would be directly contrary to — voters’ intent in
enacting Proposition 47. (See People v. Evans, supra, 6 Cal.App.5th at pp. 902-904;


5      The voter information guide can be accessed at <http://www.sos.ca.gov/elections/
voting-resources/voter-information-guides/> [as of Mar. 14, 2017].


                                              9.
People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1182-1183; cf. People v. Abdallah
(2016) 246 Cal.App.4th 736, 745-747.) This is so even when the underlying felony
convictions had not yet been reduced at the time the current offenses were committed.6
       We recognize prior prison term enhancements are meant to punish the offender for
his or her recidivism, and not for the underlying offense. (Johnson, supra, 8 Cal.App.5th
at pp. 121-122; People v. Evans, supra, 6 Cal.App.5th at p. 905; People v. Abdallah,
supra, 246 Cal.App.4th at p. 748.) This purpose factored into our decision in Johnson,
where the prior prison term enhancement was imposed in connection with sentencing in
Johnson’s current case before the underlying conviction was reduced to a misdemeanor.
It does not assist the Attorney General in the present case, however, because the language
of section 667.5, subdivision (b) makes a felony conviction a necessary requirement for
imposition of the enhancement.7 (People v. Tenner, supra, 6 Cal.4th at p. 563; People v.
Evans, supra, 6 Cal.App.5th at p. 905.)


6       In passing, the Attorney General refers to defendant’s prior offenses as not having
been “reduced pursuant to the Act until November 2014, several months after [defendant]
committed the current offense.” While a current offense may be reduced by operation of
law, in light of Proposition 47’s amendments to various theft- and drug-related statutes,
reduction where a prior conviction is concerned requires a petition or application,
depending on whether sentence for the conviction has been completed, and a ruling by
the trial court. (§ 1170.18, subds. (a), (b), (f), (g).) Accordingly, reduction of an existing
conviction occurs not when the Act went into effect, but when such application or
petition is granted.
7       Section 667.5, subdivision (b) currently provides: “Except where subdivision (a)
applies, 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

                                             10.
       The Attorney General calls our attention to People v. Weeks (2014) 224
Cal.App.4th 1045, which held that “the trigger date for . . . section 667.5, subdivision (b),
is the date the new offense is committed.” (Id. at p. 1051.) Weeks is not on point, as it
concerned the definition of a “completed” prison term for purposes of a prior prison term
enhancement. (Id. at pp. 1049-1050; see People v. Kindall, supra, 6 Cal.App.5th at
p. 1205.)
       As the California Supreme Court observed in Park, supra, 56 Cal.4th at page 794,
“[O]ne of the ‘chief’ reasons for reducing a wobbler to a misdemeanor ‘is that under such
circumstances the offense is not considered to be serious enough to entitle the court to
resort to it as a prior conviction of a felony for the purpose of increasing the penalty for a
subsequent crime.’ ” By enacting Proposition 47, the electorate determined convictions
for receiving stolen property should not be considered serious enough to be felonies, so
long as the value of the property does not exceed $950 and the offender has no prior
convictions for super strike offenses or offenses requiring sex offender registration.
(§ 496, subd. (a).) Although voters evinced no intent to negate sentence enhancements
pursuant to section 667.5, subdivision (b) imposed before the felony convictions
underlying those enhancements were reduced to misdemeanors (Johnson, supra, 8
Cal.App.5th at p. 123, we are convinced the express language of section 1170.18,
subdivision (k) — that a conviction reduced under Proposition 47 “shall be considered a
misdemeanor for all purposes” except firearm restrictions — evinces such an intent going
forward from the point of reduction.




Section 1170 or any felony sentence that is not suspended. A term imposed under the
provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the
term is suspended by the court to allow mandatory supervision, shall qualify as a prior
county jail term for the purposes of the one-year enhancement.”


                                             11.
                                     DISPOSITION
       The judgment is modified by striking the three one-year enhancements imposed
pursuant to Penal Code section 667.5, subdivision (b), and by staying, as to count 2, the
fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 and the
associated penalty assessments. As so modified, the judgment is affirmed. The matter is
remanded to the trial court with directions to resentence defendant on the modified
judgment.



                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 PEÑA, J.




                                            12.
