Filed 11/18/15 P. v. Littlefield CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                                  C078865

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR85487)

         v.

OCEAN SUNFLOWER LITTLEFIELD,

                   Defendant and Appellant.




         Approved by the voters at the November 2014 general election, Proposition 47
reduced certain felony offenses -- including possession of controlled substance in
violation of Health and Safety Code section 11377 -- to misdemeanors. It also provided a
procedure by which “[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
[Proposition 47] had [Proposition 47] 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



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conviction in his or her case to request resentencing . . . .” (Pen. Code,1 § 1170.18,
subd. (a).) Under the terms of Proposition 47, however, relief is not available to “persons
who have one or more prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of Section 290.” (§ 1170.18, subd. (i),
italics added.)
       The issue in this case is whether a conviction qualifies as a “prior” conviction
within the meaning of Proposition 47 if that conviction occurred at the same time as the
conviction on which the defendant seeks resentencing. Defendant Ocean Sunflower
Littlefield contends that to be a “prior” conviction, the disqualifying conviction must
have occurred before the date of the conviction for which resentencing is sought. We
disagree. Although the language of the proposition is ambiguous on this point, the most
reasonable interpretation of that language is that a conviction is a “prior” conviction
within the meaning of the proposition if that conviction occurred at any time before the
court rules on the resentencing petition. Under that reading of Proposition 47, the trial
court here correctly denied defendant’s petition and therefore we affirm.
                            PROCEDURAL BACKGROUND
       In September 2013, defendant was convicted of three offenses: (1) going to an
arranged meeting place to meet a minor for lewd purposes (§ 288.4, subd. (b));
(2) contacting a minor to commit a sexual offense (§ 288.3, subd. (a)); and (3) possession
of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). In November 2013,
the trial court sentenced defendant to a two-year prison term on the first offense, a
concurrent 4-month term on the second offense, and a consecutive eight-month term on
the third offense, but suspended execution of the sentence and placed defendant on five




1      All further undesignated section references are to the Penal Code.

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years’ probation. The first two offenses require registration as a sex offender pursuant to
subdivision (c) of section 290.
       In January 2015, defendant filed a petition under Proposition 47 seeking
resentencing on his conviction of possession of a controlled substance.2 In his petition,
defendant attested that he had “no prior convictions . . . for an offense requiring
registration pursuant to Penal Code § 290(c).” The People opposed the petition on the
ground that defendant “would be ineligible [for] relief because of [the] 290 requirement
that came with the other counts that he was found guilty of.” Defendant argued that those
convictions were “contemporaneous convictions,” not prior convictions. The court
granted a continuance to allow the parties to brief the issue.
       At the next hearing in February, the People agreed with defendant that his
convictions did not qualify as prior convictions within the meaning of Proposition 47 and
thus would not bar resentencing on the drug possession charge. The trial court expressed
doubt and continued the matter again to consider the issue. At the next hearing in March,
the court concluded that because defendant had a prior conviction for an offense that
required sex offender registration “at the time [he] brought [his] . . . petition” for
resentencing, he was not entitled to resentencing on the drug possession charge,
“notwithstanding the fact that . . . all [of the offenses] happened at once.” Accordingly,
the court denied defendant’s petition. Defendant timely appealed.
                                        DISCUSSION
       “ ‘In interpreting a voter initiative like [Proposition 47], we apply the same
principles that govern statutory construction.’ [Citation.] ‘ “The fundamental purpose of




2      As neither party has raised the issue and we can affirm the trial court’s decision on
another basis, we have no occasion to consider whether a defendant who is on probation
following the suspension of the execution of his sentence is “currently serving a
sentence” within the meaning of subdivision (a) of section 1170.18.

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statutory construction is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.]” ’ [Citation.] In the case of a provision adopted by the
voters, ‘their intent governs.’ [Citation.]
       “ ‘In determining such intent, we begin with the language of the statute itself.’
[Citation.] We look first to the words the voters used, giving them their usual and
ordinary meaning. ‘ “If there is no ambiguity in the language of the statute, ‘then . . . the
plain meaning of the language governs.’ ” [Citation.] “But when the statutory language
is ambiguous, ‘the court may examine the context in which the language appears,
adopting the construction that best harmonizes the statute internally and with related
statutes.’ ” [Citation.] [¶] In construing a statute, we must also consider “ ‘the object to
be achieved and the evil to be prevented by the legislation.’ ” ’ ” (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1099-1100.)
       Here, defendant contends subdivision (i) of section 1170.18 is unambiguous with
regard to what constitutes a “prior” conviction that will render a defendant ineligible for
relief under Proposition 47 because “[t]he statute clearly uses the term ‘prior’ to refer to
convictions prior to the one for which relief is sought.” He points to the use of the terms
“prior or current felony conviction” and “prior or current conviction” in
subdivision (h)(3)(A) of section 1170 and argues that if the voters “meant to disqualify
defendants from Proposition-47 eligibility based on current or contemporaneous
convictions [they] would have used the ‘prior or current’ language of section 1170,
subdivision (h)(3)(A).”3




3      In its entirety, subdivision (h) of section 1170 provides as follows:

       “(1) Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision where the term is not specified in the underlying offense shall be punishable
by a term of imprisonment in a county jail for 16 months, or two or three years.

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        We are not persuaded. Subdivision (h) of section 1170 is part of the Criminal
Justice Realignment Act of 2011 under which “numerous offenses previously punishable
by specified terms in state prison are now punishable by serving that same term in local
custody at the county jail.” (People v. Vega (2014) 222 Cal.App.4th 1374, 1379.) By its
very nature, that statute operates at the time of sentencing. Thus, in disqualifying certain
defendants from serving their sentences in county jail based on “a prior or current felony
conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior
or current conviction for a violent felony described in subdivision (c) of Section 667.5”
(italics added), subdivision (h)(3)(A) of section 1170 uses the term “prior or current” to
describe (1) convictions that occurred before the current sentencing proceeding (prior




       “(2) Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision shall be punishable by imprisonment in a county jail for the term described in
the underlying offense.

       “(3) Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior
or current felony conviction for a serious felony described in subdivision (c) of
Section 1192.7 or a prior or current conviction for a violent felony described in
subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction
for an offense that has all the elements of a serious felony described in subdivision (c) of
Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is
required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section
290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an
enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony
punishable pursuant to this subdivision shall be served in state prison.

       “(4) Nothing in this subdivision shall be construed to prevent other dispositions
authorized by law, including pretrial diversion, deferred entry of judgment, or an order
granting probation pursuant to Section 1203.1.

        “(5)(A) Unless the court finds that, in the interests of justice, it is not appropriate
in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2),
shall suspend execution of a concluding portion of the term for a period selected at the
court’s discretion.”

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convictions) and (2) convictions that are being sentenced as part of the current sentencing
proceeding (current convictions).
       Unlike subdivision (h) of section 1170, however, section 1170.18 does not operate
at the time of sentencing; rather, it operates when a person is “currently serving a
sentence for a conviction” (§ 1170.18, subd. (a)) or “has completed his or her sentence
for a conviction” (id., subd. (f)). Given that section 1170.18 does not operate at the time
of sentencing, there is no reason to expect that the voters would have used the term
“current conviction” in subdivision (i) of the statute to refer to a conviction that occurred
at the same time as the conviction for which the defendant seeks relief under Proposition
47, given that both such convictions will always have occurred in the past. Thus, the fact
that subdivision (i) of section 1170.18 does not use the term “current conviction” does
not lead to the conclusion that the statute is unambiguous with respect to what constitutes
a “prior” conviction.
       That being said, while the absence of the term “current conviction” does not carry
the day for defendant, we do believe that subdivision (i) of section 1170.18 is ambiguous
as to what constitutes a disqualifying “prior” conviction because the language of the
statute does not necessarily answer the question, “prior” to what? On the one hand,
because subdivision (a) of section 1170.18 grants a conditional right to relief to “[a]
person currently serving a sentence for a conviction”4 (italics added), and subdivision (f)
grants a similar right to “[a] person who has completed his or her sentence for a
conviction” (italics added), the term “prior conviction” in subdivision (i) could be
understood by reference to the term “a conviction” in subdivisions (a) and (f) to refer to a




4      The right to relief is conditional because even if all of the criteria in
subdivision (a) are satisfied, the sentencing court has discretion to deny resentencing if
“the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

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conviction that occurred prior to the conviction for which relief is sought. On the other
hand, because subdivision (i) specifically makes the provisions of section 1170.18
inapplicable “to persons who have one or more prior convictions for an offense specified
in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
for an offense requiring registration pursuant to subdivision (c) of Section 290” (italics
added), the term “prior conviction” in subdivision (i) could also be understood to refer to
any conviction that occurred prior to the time the trial court rules on the petition for
resentencing.
       This latter reading is the one the People now advocate. According to them, “[t]he
obvious context of section 1170.18 is that in which a convicted felon is seeking
resentencing, by petitioning for recall of sentence. The time period at issue necessarily
encompasses the time after the original sentencing, up until the time the inmate’s petition
for recall of his original sentence is decided.” Thus, in the People’s view, “the use of the
present tense language ‘have’ indicates the convictions must have occurred only before
the time the court decides the inmate’s petition for recall of sentence.”
       The People are correct that use of the present tense of the verb “to have” must be
given meaning. “ ‘In construing statutes, the use of verb tense by the Legislature is
considered significant.’ [Citation.] In particular, the Legislature’s use of present tense
language has often been interpreted as indicating an intent to establish ‘current’
requirements. For example, in People v. Loeun (1997) 17 Cal.4th 1 [69 Cal.Rptr.2d 776,
947 P.2d 1313], the court interpreted the phrase ‘ “ ‘engage in or have engaged in a
pattern of criminal gang activity’ ” ’ as indicating the Legislature’s intent that current
criminal conduct can satisfy the statutory requirement for a pattern of criminal gang
activity. (Id. at p. 10.) Similarly, in Hubbart v. Superior Court (1999) 19 Cal.4th 1138
[81 Cal.Rptr.2d 492, 969 P.2d 584], our Supreme Court concluded that the Legislature’s
use of present tense language in Welfare and Institutions Code section 6600 of the
Sexually Violent Predators Act indicates that ‘the statute clearly requires the trier of fact

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to find that [a sexually violent predator] is dangerous at the time of commitment.’
(Hubbart, supra, 19 Cal.4th at p. 1162.)” (People v. Brewer (2001) 87 Cal.App.4th 1298,
1304-1305.)
       Unfortunately, however, the use of the present tense in subdivision (i) of
section 1170.18 does not resolve the issue here. It is true that subdivision (i) of
section 1170.18 renders the statute inapplicable to persons who “have” certain
disqualifying “prior convictions.” Moreover, just as subdivision (h) of section 1170
speaks to the time when the trial court is imposing sentence, section 1170.18 speaks to
the time when the trial court is either (1) determining whether a defendant who has filed a
petition for resentencing under subdivision (a) “satisfies the criteria in [that] subdivision”
(§ 1170.18, subd. (b)), or (2) determining whether an application to redesignate a felony
conviction as a misdemeanor under subdivision (f) “satisfies the criteria in [that]
subdivision” (id., subd. (g)). Thus, it is at the time the trial court rules on the petition for
resentencing or the petition for redesignation that the court must determine whether a
defendant has a disqualifying prior conviction. But the question still remains, “prior” to
what? Notwithstanding the use of the present tense in subdivision (i) of section 1170.18,
the voters could have intended that a disqualifying conviction be one that occurred either:
(1) prior to the conviction for which relief is sought; or (2) prior to the time the court is
determining whether relief is warranted.
       Defendant contends that we should resolve any ambiguity in the statute in his
favor because “[w]hen language which is susceptible of two constructions is used in a
penal law, the policy of this state is to construe the statute as favorably to the defendant
as its language and the circumstance of its application reasonably permit.” (People v.
Overstreet (1986) 42 Cal.3d 891, 896.) “However, this rule is not inflexible and courts
decline to apply it where it leads to results that are contrary to legislative intent or that
fail to prevent the harm that is identified in the statute or that override common sense and
create palpable absurdities.” (People v. Davis (1985) 166 Cal.App.3d 760, 766, cited

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with approval in People v. Pieters (1991) 52 Cal.3d 894, 899; see also People v. Cruz
(1996) 13 Cal.4th 764, 783 [“ambiguities are not interpreted in the defendant’s favor if
such an interpretation would provide an absurd result, or a result inconsistent with
apparent legislative intent”].)
       The obvious intent behind subdivision (i) of section 1170.18 was to preclude
certain defendants from receiving the benefit otherwise available under that statute --
reducing a felony conviction to a misdemeanor. Specifically, the voters identified two
classes of defendants who, in the voters’ estimation, did not deserve the advantages that
flow from reducing a felony to a misdemeanor: (1) persons with one or more prior
convictions for certain serious and/or violent felonies;5 and (2) persons with one or more


5      Specifically, subdivision (i) of section 1170.18 refers to “an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” The
offenses specified in that clause are as follows:

      “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of
the Welfare and Institutions Code.

       “(II) Oral copulation with a child who is under 14 years of age, and who is more
than 10 years younger than he or she as defined by Section 288a, sodomy with another
person who is under 14 years of age and more than 10 years younger than he or she as
defined by Section 286, or sexual penetration with another person who is under 14 years
of age, and who is more than 10 years younger than he or she, as defined by Section 289.

       “(III) A lewd or lascivious act involving a child under 14 years of age, in violation
of Section 288.

       “(IV) Any homicide offense, including any attempted homicide offense, defined in
Sections 187 to 191.5, inclusive.

       “(V) Solicitation to commit murder as defined in Section 653f.

       “(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245.

      “(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of
subdivision (a) of Section 11418.

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prior convictions for sex offenses that require lifetime registration as a sex offender. The
only criterion that must be met under subdivision (i) to establish a defendant’s
disqualification is that the defendant must “have one or more [disqualifying] prior
convictions.”
       In our view, it would be contrary to common sense and inconsistent with the
apparent intent of the voters for us to conclude that a defendant who sustained a
disqualifying prior conviction before he sustained the conviction he seeks to reduce to a
misdemeanor is barred by subdivision (i) from obtaining the benefit of section 1170.18,
but a defendant who sustained such a conviction at the same time as or after he sustained
the conviction he seeks to reduce to a misdemeanor, but before the court rules on his
petition for relief under section 1170.18, is not barred from obtaining such relief. As far
as we can see, there would have been no rational basis for the voters to draw that
distinction. Certainly defendant does not offer any such basis here. Thus, he does not
explain why it would be consistent with the voters’ intent to allow him to reduce his
felony drug possession offense to a misdemeanor because he was convicted of his
registerable sex offenses at the same time as the drug offense, rather than on a prior date,
while a similarly situated defendant who had a registerable sex offense that predated his
drug offense would be denied that relief.
       Based on the foregoing reasoning, we conclude that the most reasonable
interpretation of subdivision (i) of section 1170.18 is that a conviction is a “prior”
conviction within the meaning of that provision if that conviction occurred at any time
before the court rules on the petition for relief under section 1170.18. Under that reading
of the law, the trial court here correctly denied defendant’s petition for resentencing.




      “(VIII) Any serious and/or violent felony offense punishable in California by life
imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv).)

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                                    DISPOSITION
      The order denying defendant’s petition for resentencing is affirmed.




                                               /s/
                                               Robie, J.


I concur:



/s/
Nicholson, J.




                                          11
BLEASE, J. Concurring in the result.
       The majority opinion goes to great interpretive lengths to read “prior conviction”
to include a “current conviction” for the policy reason that it would made little sense
when the disqualifying conviction occurred at the same time as the current conviction. I
agree it would make no policy sense to conclude otherwise and hence agree with the
result but find the attempt to transmute a current conviction into a prior conviction
sophistical. The simple answer is that Proposition 47 does not provide relief where, as
here, a current qualifying conviction is paired with a current disqualifying conviction. It
only applies where the sole current conviction is qualifying.




                                          /s/
                                          Blease, Acting P. J.




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