Filed 3/21/16 P. v. Gomez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042357
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS130021A &
                                                                     SS141092A)
         v.

MARTHA OCHOA GOMEZ,

         Defendant and Appellant.



         Defendant Martha Ochoa Gomez was convicted by plea of two counts of felony
possession of heroin (Health & Saf. Code, § 11350, subd. (a)) in separate cases. The
court suspended imposition of sentence and placed her on formal felony probation in
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each case. When Penal Code section 1170.18 was enacted by the voters as part of
Proposition 47 in November 2014, defendant remained on probation. She filed petitions
to recall her “sentence” in each case. The trial court denied her petitions on the ground
that she was not “currently serving a sentence” despite the fact that she remained on
felony probation in both cases. Defendant challenges this ruling on appeal, and the
Attorney General concedes that the trial court erred. We agree and reverse the orders
denying defendant’s petitions.



1
         Subsequent statutory references are to the Penal Code unless otherwise specified.
                                       I. Background
       In January 2013, defendant was charged by complaint with felony possession of
heroin (Health & Saf. Code, § 11350, subd. (a)), misdemeanor possession of controlled
substance paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), and misdemeanor
interference with a business by obstructing or intimidating customers (§ 602.1, subd. (a)).
These offenses were alleged to have occurred in December 2012. Defendant pleaded
guilty to the felony count, and the other counts were dismissed. In August 2013, the
court suspended imposition of sentence and placed defendant on probation for the
December 2012 possession offense. In May 2014, defendant was charged by complaint
with a May 2014 felony possession of heroin. She pleaded no contest. In June 2014, the
court suspended imposition of sentence for the May 2014 offense and placed defendant
on probation. In October 2014, the court reinstated probation for both convictions.
       In March 2015, defendant filed petitions under section 1170.18 for recall of her
sentences in both cases. She alleged in her petitions that she was “currently serving”
sentences for these convictions. The prosecution responded that defendant was ineligible
because she “has not been sentenced” and is “not serving a sentence.” Defendant argued
that either she had been sentenced on her felony convictions or she was eligible to have
them automatically reduced to misdemeanors under In re Estrada (1965) 63 Cal.2d 740.
       In May 2015, the court denied defendant’s petitions. It stated: “I do believe that
the court feels a traditional definition of sentence is the one it will follow until told
otherwise. So I’m going to either deny the petition, or if Ms. Gomez wishes to be
sentenced, I’m happy to do that also.” Defendant chose not “to proceed to sentencing at
this time.” Defendant timely filed notices of appeal from the court’s orders.


                                         II. Analysis
       Section 1170.18 is derived from Proposition 47, the Safe Neighborhoods and
Schools Act, passed by voter initiative at the November 4, 2014 election. Subdivision (a)

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of the statute provides: “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 the act that added this section (‘this act’) had this act 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 conviction in his or her case to request resentencing in accordance with
Sections 11350, 11357, or 11377 of the Health and Safety Code . . . as those sections
have been amended or added by this act.” (§ 1170.18, subd. (a).) If the petitioner meets
the criteria in subdivision (a) of the statute, the felony sentence “shall be recalled and the
petitioner resentenced to a misdemeanor” pursuant to the statutes under which he or she
was convicted, as those sections were amended or added by the Act, “unless the court, in
its discretion, determines that resentencing the petitioner would pose an unreasonable risk
of danger to public safety.” (§ 1170.18, subd. (b)); cf. T.W. v. Superior Court (2015) 236
Cal.App.4th 646, 650; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092-1093.)
       The parties agree that in passing Proposition 47 the voters intended to embrace
probationers within the reach of the resentencing provisions of section 1170.18. To
interpret the statutory language otherwise would, in their view, lead to absurd
consequences. We find merit in this position. As the Attorney General acknowledges,
there is nothing in either the ballot materials or the statutory language that appears to
limit the phrase “currently serving a sentence for a conviction” to those serving a term of
imprisonment. Defendant points out that granting probation is in some contexts a
“sentencing choice” (see, e.g., Cal. Rules of Court, rule 4.405(6) [“ ‘Sentence choice’
means the selection of any disposition of the case that does not amount to a dismissal,
acquittal, or grant of a new trial”]). (Cf. People v. Howard (1997) 16 Cal.4th 1081, 1084
[referring to court’s authority “at time of sentencing” either to suspend imposition of
sentence or impose sentence and suspend its execution]; In re DeLong (2001) 93
Cal.App.4th 562, 571 [“an order granting probation and suspending imposition of
sentence is a form of sentencing”].) Both parties observe that the language of another

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voter initiative, Proposition 36, the Substance Abuse and Crime Prevention Act of 2000,
used the language “sentenced to probation.” (Voter Information Guide, Gen. Elec.
(Nov. 7, 2000) ballot measure summary of Prop. 36, p. 3; see People v. Mendoza (2003)
106 Cal.App.4th 1030, 1034 [quoting ballot pamphlet to distinguish conviction from
sentence and referring to “sentence of probation”].)
       The ballot materials for Proposition 47 likewise indicate that the voters regarded
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probation as one of the options within a sentencing procedure; the legislative analysis
refers to offenders who are “sentenced” to supervision by a county probation officer
while indicating that both jail time for eligible offenders and the caseloads of probation
officers would be reduced by including felony probation as a disposition eligible for
resentencing under section 1170.18. (See People v. Shabazz (2015) 237 Cal.App.4th 303,
310 [discussing Proposition 47 mechanism for resentencing after being “sentenced or
placed on probation”].) The Legislative Analyst discussed these options under the
heading of “Misdemeanor Sentencing” and generally noted the fiscal consequences of
“the resentencing of individuals currently serving sentences for felonies that are changed
to misdemeanors . . . .” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of
Prop. 47 by Legislative Analyst, pp. 34-36, italics added.) Nothing in the text of the
initiative, the legislative analysis, or the arguments for and against it indicate an intent to
distinguish between a prison sentence and felony probation, or between a grant of
probation after suspending imposition of sentence and an order imposing sentence but



2
        “ ‘In interpreting a voter initiative . . . “we turn first to the language of the statute,
giving the words their ordinary meaning.” [Citation.] The statutory language must also
be construed in the context of the statute as a whole and the overall statutory scheme [in
light of the electorate’s intent]. . . . When the language is ambiguous, “we refer to other
indicia of the voters’ intent, particularly the analyses and arguments contained in the
official ballot pamphlet.” [Citation.]’ [Citation.]” (Robert L. v. Superior Court (2003)
30 Cal.4th 894, 900-901, quoting Horwich v. Superior Court (1999) 21 Cal.4th 272, 276
and People v. Birkett (1999) 21 Cal.4th 226, 231.)

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suspending its execution. The statute itself allows the recall of a “felony sentence” and
allows the petitioner to request “resentencing” in Health and Safety Code section 11350
cases, without segregating those serving prison sentences from those serving probation
terms. (§ 1170.18, subds. (a), (b).) And as defendant points out, Proposition 47 was
intended to reach those with “nonserious, nonviolent crimes like . . . drug possession,”
which would encompass many who were granted probation. (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70, § 3.) To deprive those defendants of the
benefit of the reduced penalty for their offenses would create an incongruity the voters
would not have either anticipated or approved.
       We accordingly adopt the parties’ proffered liberal construction of the statute to
apply to all those with felony dispositions, including those placed on probation who
otherwise meet the conditions specified in the statutory scheme. Because she met the
criteria for eligibility under section 1170.18, defendant was entitled to consideration of
her petitions for resentencing.


                                     III. Disposition
       The orders are reversed, and the matters are remanded for consideration of
defendant’s petitions under section 1170.18.




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      Neither party suggests any significance in the latter distinction for purposes of
Proposition 47 treatment.

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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




People v. Gomez
H042357


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