Filed 10/28/15 P. v. King 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C078775

                   Plaintiff and Respondent,                                     (Super. Ct. No. 99F07845)

         v.

DAVID KING,

                   Defendant and Appellant.




         Defendant David King appeals from the trial court’s order denying his petition to
have prior felonies redesignated as misdemeanors and to modify his sentence. (Pen.
Code, § 1170.18.)1 Defendant, who represents himself on appeal, contends in a
supplemental brief2 that the trial court should have granted his motion as to prior



1   Undesignated statutory references are to the Penal Code.
2  We grant the Attorney General’s motion to strike defendant’s opening brief (motion
filed June 16, 2015) because the arguments raised in the brief attack defendant’s prior
conviction and sentence and are not related to the section 1170.18 petition that is the
subject of this appeal.

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convictions for petty theft with a prior (§ 666) and second degree burglary (§ 459) that
supported prior prison term enhancements. We affirm.
                                     BACKGROUND3
        Defendant was convicted of robbery (§ 211) and burglary (§ 459). (People v. King
(Nov. 26, 2002, C037815) [nonpub. opn.].) The trial court “found defendant had four
prior convictions -- two for first degree burglary (§§ 459, 460) each of which constituted
strikes (§ 667, subds. (b)-(i), § 1170.12) and serious prior felony convictions (§ 667,
subd. (a)); one for second degree burglary (§§ 459, 460) and one for theft with a prior
related theft conviction (§ 666) for which he served separate prison terms (§ 667.5,
subd. (b)).” (King, supra, C037815.) Defendant was sentenced to state prison for
25 years to life plus 12 years. (Ibid.) We modified his conviction to award extra custody
credits and affirmed his conviction as modified. (Ibid.)
        On January 29, 2015, defendant filed his section 1170.18 petition. The trial court
subsequently summarily denied the petition without the appointment of counsel, finding
that defendant’s current convictions were not subject to modification pursuant to
section 1170.18.
                                       DISCUSSION
        Proposition 47 requires “misdemeanors instead of felonies for nonserious,
nonviolent crimes . . . unless the defendant has prior convictions for specified violent or
serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
p. 70.) It also added section 1170.18 to the Penal Code, which provides that a person
who is “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




3   We omit the facts of defendant’s crimes as they are unnecessary to resolve this appeal.

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before the trial court that entered the judgment of conviction in his or her case to request
resentencing . . . .”
       Of the convictions that form the basis of defendant’s sentence, his current
convictions for burglary and robbery, and his prior convictions for first degree burglary,
second degree burglary, and petty theft with a prior, only one, petty theft with a prior,
was modified by Proposition 47.
       Following Proposition 47, the felony petty theft with a prior is limited to a
defendant “who is required to register pursuant to the Sex Offender Registration Act, or
who has a prior violent or serious felony conviction, as specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction
pursuant to subdivision (d) or (e) of Section 368.” (§ 666, subd. (b).) Since defendant is
not subject to sex offender registration and does not have a prior conviction that would
support a conviction under the new section 666, his petty theft with a prior conviction, if
committed now, would constitute simple petty theft, a misdemeanor. (§ 490.)
       This is relevant to defendant’s current sentence because the prior prison term
enhancement applies only to prior felony convictions. (§ 667.5, subd. (b).) While
defendant’s conviction would now be a misdemeanor, it was a felony when the felony
was used to support a prior prison term allegation in 2001. (See former § 666.) Since
defendant’s conviction and sentence on the allegation are now final, the question here is
whether section 1170.18 operates to reduce the prior section 666 conviction to a
misdemeanor and thereby remove a necessary element from the prior prison term
enhancement.
       A very similar situation was confronted by a panel of this court in People v. Eandi
(2015) 239 Cal.App.4th 801 (Eandi). In Eandi, a complaint was filed against the
defendant charging her with felony failure to appear (§ 1320, subd. (b)) on a charge of
felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
(Eandi, at p. 803.) The defendant pleaded no contest to the felony failure to appear

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charge and the drug possession charge was dismissed. (Ibid.) However, Proposition 47
had reduced the drug possession offense to a misdemeanor by the time of its dismissal.
(Eandi, at pp. 803-804.) “[T]he trial court concluded that it should amend the charge of a
felony violation of section 1320, subdivision (b) for failure to appear on felony charges to
a misdemeanor violation of section 1320, subdivision (a) for failure to appear on
misdemeanor charges.” (Eandi, at p. 804.) It then suspended imposition of sentence and
placed defendant on probation. (Ibid.) The People appealed; we agreed the court’s
action was unauthorized and vacated the order of probation. (Ibid.)
       We found that because the crime of failure to appear is based on the defendant’s
breach of a promise, “the ultimate disposition of the underlying offense is immaterial.
[Citation.]” (Eandi, supra, 239 Cal.App.4th at p. 805.) The question therefore was
whether Proposition 47 “has a collateral retroactive effect such that the pending felony
drug possession charge at the time of the breach of promise of failure to appear in
August 2014 became a misdemeanor as a matter of law retroactively, thereby negating a
necessary statutory element of a failure to appear on a felony charge: having been
‘charged with . . . the commission of a felony’ [citation].” (Ibid.) We concluded that it
did not. (Ibid.)
       This court initially found that “nothing in the express language of the initiative or
its ballot materials reflects any intent to provide retroactive collateral relief as a matter of
law in the absence of a petition in a prosecution for a different offense premised upon a
former felony violation of the affected statutes. At the time of defendant’s failure to
appear in August 2014, there was a felony charge pending against defendant for which
she had promised to appear. The initiative did not purport to exercise a power to go back
in time and alter the felony status of every affected offense in every context. It merely
offered the possibility of a reduction in current punishment for a conviction or a
redesignation of the status of completed punishment for a conviction on a petition for a
recall of sentence. [Fn. omitted.] Prior felony convictions remain such absent a petition;

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we do not discern, nor does defendant provide, any cogent reason why a then pending
felony charge should transform to a misdemeanor as a matter of law for purposes of its
collateral effect on a different offense.” (Eandi, supra, 239 Cal.App.4th at pp. 805-806.)
       Section 1170.18 likewise did not support complete retroactive effect for the
change of an offense from a misdemeanor to a felony. Subdivision (k) of this provision
states in relevant part: “Any 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 . . . .” This language parallels the provision for reducing
“wobbler” felonies to misdemeanors, which states that an offense declared a
misdemeanor is “a misdemeanor for all purposes . . . .” (§ 17, subd. (c); Eandi, supra,
239 Cal.App.4th at p. 806.) In the context of section 17, reducing an offense from a
felony to a misdemeanor was given prospective effect only. (Eandi, at p. 806 & fn.7,
citing People v. Moomey (2011) 194 Cal.App.4th 850, 858.) Likewise, another Court of
Appeal gave subdivision (k) prospective effect in determining that jurisdiction over the
appeal of a decision granting a section 1170.18 petition was with the Court of Appeal
rather than the appellate division of the superior court. (Eandi, at p. 806; see People v.
Rivera (2015) 233 Cal.App.4th 1085, 1094-1095, 1099-1101.) Therefore, the trial court
lacked jurisdiction to reduce the felony failure to appear charge to a misdemeanor.
(Eandi, at p. 806.)
       We see no reason to depart from Eandi. Although this case involves a different
offense, the analysis is the same. The gist of the prior prison term enhancement is
additional punishment for recidivists, in particular those who did not change their
lawbreaking behavior after incarceration for a felony conviction. The ultimate
disposition of the underlying offense of petty theft with a prior is immaterial to the fact
that defendant was a recidivist when the prior prison term enhancement was applied to
him. Applying Eandi’s analysis of the text and intent of Proposition 47, we conclude that



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section 1170.18 was not available to collaterally attack the prior prison term enhancement
based on defendant’s conviction for petty theft with a prior.
                                     DISPOSITION
       The judgment (order denying defendant’s petition) is affirmed.



                                                           RAYE             , P. J.



We concur:



      NICHOLSON             , J.



      MAURO                 , J.




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