Filed 8/18/16 P. v. Valdez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042346
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS132528A,
                                                                     SS140906A)
         v.

PETE CALDERON VALDEZ, SR.,

         Defendant and Appellant.




                                              I. INTRODUCTION
         In case No. SS132528A, defendant Pete Calderon Valdez, Sr., pleaded no contest
to possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a))
and misdemeanor inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)).1
In case No. SS140906A, defendant pleaded no contest to possession of a controlled
substance (former Health & Saf. Code, § 11377, subd. (a)) and misdemeanor violating a
protective order (§ 166, subd. (c)(1)). The trial court suspended imposition of sentence in
each case and placed defendant on probation.




         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       While defendant was on probation, section 1170.18 was enacted by the voters as
part of Proposition 47, which reclassified certain offenses as misdemeanors. Defendant
filed a petition in each case for recall of sentence and resentencing to a misdemeanor
under section 1170.18 with respect to his felony drug convictions. The trial court
implicitly determined that defendant, as a probationer, was not serving a sentence within
the meaning of section 1170.18. However, in order to sentence the drug convictions as
misdemeanors, the court proceeded to terminate probation in both cases, sentence
defendant to 16-month jail terms for his felony drug convictions, and then immediately
recall the sentences and resentence defendant to misdemeanors.
       On appeal, defendant contends that the trial court erred by failing to automatically
designate his felony drug convictions as misdemeanors. Defendant argues that the
provisions of Proposition 47 in reclassifying certain offenses as misdemeanors applied
retroactively to him, and that the trial court erred in terminating probation and sentencing
him to felony jail terms before resentencing his drug offenses as misdemeanors.
       For reasons that we will explain, we will order the vacation of the orders
terminating probation and imposing felony sentences, and affirm the orders as so
modified.
                 II. FACTUAL AND PROCEDURAL BACKGROUND
       In February 2014, in case No. SS132528A, defendant was charged by information
with possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a);
count 1), misdemeanor inflicting corporal injury on a spouse (§ 273.5, subd. (a); count 2),
and misdemeanor child endangerment (§ 273a, subd. (b); count 3). In March 2014,
defendant pleaded no contest to counts 1 and 2.
       In April 2014, in case No. SS140906A, defendant was charged by complaint with
possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a);
count 1), and misdemeanor violating a protective order (§ 166, subd. (c)(1); count 2).
Defendant pleaded no contest to both counts.

                                             2
       At a combined sentencing hearing in May 2014, the trial court suspended
imposition of sentence in each case and placed defendant on probation for three years
with various terms and conditions. The remaining count against defendant in case
No. SS132528A was dismissed.
       Defendant thereafter filed an application in case No. SS140906A to have his
felony drug conviction designated as a misdemeanor under section 1170.18. Defendant
later withdrew the petition before the court ruled on it.
       In the meantime, on October 15, 2014, defendant admitted violating probation in
both cases. On December 10, 2014, the trial court reinstated probation in both cases on
modified terms and conditions.
       In mid-December 2014, defendant filed a petition in each case for recall of
sentence and resentencing under section 1170.18. In the petitions, defendant stated
that he had been convicted of felony violations of former Health and Safety Code
sections 11377 and those offenses had since been reclassified as misdemeanors.
Defendant contended that he was “sentenced to” probation in each case, and that he
was “currently serving the . . . sentence” in each case. He requested that he be
resentenced to misdemeanors.
       In case No. SS140906A, the prosecutor filed a written response indicating that
defendant was not eligible for the requested relief because he was “on probation and
therefore no[t] serving a sentence.” In case No. SS132528A, a different prosecutor filed
a written response indicating that the prosecution had “no objection” to defendant’s
petition and that defendant was “entitled to the requested relief.”
       A hearing was held on the petitions on April 24, 2015. The trial court stated its
understanding that the prosecution’s “objection was that [defendant] hadn’t been
sentenced.” The court, in apparent agreement with the prosecution that defendant was
not serving a sentence within the meaning of section 1170.18, stated, “Typically I
sentence to [the] lower term, recall the sentence and resentence as a misdemeanor.”

                                              3
Defense counsel responded, “Okay. That’s fine. If the Court wants to 17(b) it, I can also
request that. But if the Court wants to do it the other way, I would just list my objections
for the record and submit it.” The court stated, “[D]oing it that way instead of the 17(b)
he could still be placed on parole for a year.” Defense counsel responded, “Correct.”
Defense counsel later stated, “I’ll submit it to the Court with my objections.” The
prosecution stated, “The Court correctly understands and stated the People’s position.”
       The trial court proceeded to revoke and terminate probation in each case and
sentence defendant to the lower term of 16 months in jail for his felony convictions under
former Health and Safety Code section 11377, subdivision (a). The court immediately
recalled the sentences and resentenced defendant to misdemeanors for the convictions.
In each case, the court denied probation and ordered defendant to serve 365 days in
county jail with credit for time served of 365 days. Further, in case No. SS140906A,
the court placed defendant on parole for one year. In case No. SS132528A, the court
released defendant from parole.
       Defendant filed a notice of appeal from the April 24, 2015 order in each case.
                                     III. DISCUSSION
       A. Legal Background: Proposition 47
       On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014),
eff. Nov. 5, 2014.) Proposition 47 reclassified certain drug and theft related offenses as
misdemeanors instead of felonies or alternative felony misdemeanors. (§ 1170.18,
subd. (a); People v. Shabazz (2015) 237 Cal.App.4th 303, 308.) The statutes amended
by Proposition 47 include Health and Safety Code section 11377, subdivision (a), the
former version of which provided the basis for defendant’s felony conviction in each
case. Prior to Proposition 47, possession of a controlled substance in violation of Health
and Safety Code section 11377, subdivision (a) was a wobbler. (People v. Lynall (2015)
233 Cal.App.4th 1102, 1108.) As a result of Proposition 47, Health and Safety Code

                                             4
section 11377, subdivision (a) now provides that possession of specified controlled
substances is punishable as a misdemeanor unless the defendant has certain disqualifying
prior convictions.2
       Proposition 47 also enacted a new statutory provision, section 1170.18, which sets
forth two different procedures for defendants seeking to have a felony conviction
resentenced or designated as a misdemeanor.
       The first procedure under section 1170.18 applies to a defendant who is “currently
serving a sentence” for a felony conviction and who would have been guilty of a
misdemeanor under the Act if the Act had been in effect at the time of the offense.
(§ 1170.18, subd. (a), italics added.) Such a defendant may petition for a recall of his or
her sentence and request resentencing in accordance with the amended statute that
reclassified the defendant’s offense as a misdemeanor. (Ibid.) If the petitioner meets the
requisite statutory criteria, “the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor . . . unless the court, in its discretion, determines
that resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (Id., subd. (b); see id., subd. (c).) Section 1170.18 sets forth various factors that
a court may consider in exercising its discretion. (Id., subd. (b)(1)-(3).) A defendant is
not eligible for resentencing if he or she has suffered a specified prior conviction. (Id.,
subd. (i).) Generally, a defendant who is resentenced pursuant to section 1170.18 is
subject to a one-year period of parole, unless the court as part of its resentencing order



       2
         Health and Safety Code section 11377, subdivision (a) provides for the following
punishment: “imprisonment in a county jail for a period of not more than one year,
except that such person may instead be punished pursuant to subdivision (h) of
Section 1170 of the Penal Code if that person has one or more prior convictions for an
offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667 of the Penal Code or for an offense requiring registration pursuant to
subdivision (c) of Section 290 of the Penal Code.”


                                              5
releases the defendant from parole, and the defendant continues to be subject to the ban
on firearms possession that is applicable to felons. (Id., subds. (d) & (k).)
       The second procedure under section 1170.18 applies to a defendant who has
“completed his or her sentence” for a felony conviction and who would have been guilty
of a misdemeanor under the Act if the Act had been in effect at the time of the offense.
(§ 1170.18, subd. (f), italics added.) Such a person may file an application to have the
felony conviction designated a misdemeanor, and the trial court must make the
misdemeanor designation if the defendant meets the requisite criteria and has not suffered
a specified prior conviction. (Id., subds. (f), (g) & (i).)
       On appeal, defendant contends that the trial court erred by revoking his probation
and imposing 16-month jail sentences in order to make him eligible for resentencing as a
misdemeanor under section 1170.18, subdivisions (a) and (b). Defendant argues that the
trial court should have instead retroactively applied Proposition 47’s reclassification of
his felony offenses as misdemeanors and automatically designated his felony convictions
as misdemeanors. Defendant also contends that, as a probationer, he was not “currently
serving a sentence” within the meaning of section 1170.18, subdivision (a). Defendant
requests that his probation revocations, parole requirement, and firearm bans be
“stri[cken].”
       The Attorney General contends that defendant was not entitled to an automatic
reduction of his felonies to misdemeanors. The Attorney General also contends that the
trial court erred in determining that defendant, as probationer, was not currently serving a
sentence within the meaning of section 1170.18, subdivision (a). The Attorney General
argues that the court nevertheless granted defendant the relief he sought, that is,
resentencing of the felony convictions to misdemeanors, and that the judgments should
therefore be affirmed.




                                               6
       We will first consider the issue of retroactivity before turning to the question of
whether the procedure set forth in section 1170.18, subdivision (a) was applicable to
defendant in order to be resentenced to misdemeanors.
       B. Retroactivity
                                   1. Legal background
       Section 3 specifies that no part of the Penal Code is retroactive, “unless expressly
so declared.” Section 3 “provides the default rule” regarding retroactivity, “codifying
‘the time-honored principle . . . that in the absence of an express retroactivity provision, a
statute will not be applied retroactively unless it is very clear from extrinsic sources that
the Legislature [or electorate] . . . must have intended a retroactive application.’
[Citations.]” (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).)
       A “qualification” to the prospective-only presumption regarding statutory
amendments was set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). (Brown,
supra, 54 Cal.4th at p. 323.) That qualification is: “When the Legislature [or electorate]
has amended a statute to reduce the punishment for a particular criminal offense, we will
assume, absent evidence to the contrary, that the Legislature [or electorate] intended the
amended statute to apply to all defendants whose judgments are not yet final on the
statute’s operative date. [Citation.]” (Ibid., fn. omitted.) As the Estrada court explained:
“When the Legislature amends a statute so as to lessen the punishment[,] it has obviously
expressly determined that its former penalty was too severe and that a lighter punishment
is proper as punishment for the commission of the prohibited act. It is an inevitable
inference that the Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the lighter punishment can be
applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.)



                                              7
       In In re May (1976) 62 Cal.App.3d 165 (May), the appellate court addressed the
application of Estrada and the issue of when a judgment is final for a defendant placed
on probation. In May, the “proceedings in the case were suspended and [the defendant]
was placed on probation” for a drug offense. (Id. at p. 167.) A statutory amendment
subsequently reduced the offense from a felony to a misdemeanor. (Ibid.) In the
defendant’s case, however, the trial court continued to treat the offense as a felony when
the defendant was later found in violation of probation. (Id. at pp. 167-168.) The
appellate court determined that, “[s]ince the proceedings were suspended, no final
judgment was entered for the purposes of this case. [Citations.] Thus, the rationale of
Estrada applies to this case because the amendatory statute became effective after the
commission of the act but before the judgment of conviction was final.” (Id. at p. 169.)
The appellate court therefore concluded that the defendant’s offense should be designated
and treated as a misdemeanor. (Ibid.)
       “The rule in Estrada, of course, is not implicated where the Legislature clearly
signals its intent to make the amendment prospective, by the inclusion of either an
express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793,
fn. omitted (Nasalga) (plur. opn. of Werdegar, J.); see Estrada, supra, 63 Cal.2d at p. 747
[“where there is an express or implied saving clause,” the prior statute “should continue
to operate as to past acts”].) If there is no express saving clause, one will be implied if
the Legislature or electorate has “demonstrate[d] its intention with sufficient clarity that a
reviewing court can discern and effectuate it.” (In re Pedro T. (1994) 8 Cal.4th 1041,
1049 (Pedro T.).)
       For example, the “functional equivalent of a saving clause” was included in
Proposition 36, the Three Strikes Reform Act of 2012 (the Reform Act). (People v.
Yearwood (2013) 213 Cal.App.4th 161, 172 (Yearwood).) The Reform Act “change[d]
the requirements for sentencing a third strike offender” by authorizing life sentences only
in certain cases. (Yearwood, supra, at p. 167.) The Reform Act also enacted a new

                                              8
statute, section 1170.126, which “created a postconviction release proceeding whereby
[an eligible] prisoner . . . may have his or her sentence recalled and be sentenced as a
second strike offender unless the court determines that resentencing would pose an
unreasonable risk of danger to public safety. [Citation.]” (Yearwood, supra, at p. 168.)
       The Yearwood defendant was sentenced as a third strike offender prior to the
Reform Act. (Yearwood, supra, 213 Cal.App.4th at p. 167.) Had he been sentenced after
the Reform Act, he would not have been sentenced to an indeterminate life term.
(Yearwood, supra, at p. 168.) The appellate court considered whether it could issue an
order that he be resentenced, or whether his remedy was “limited to filing a petition for a
recall of his sentence in compliance with section 1170.126.” (Ibid.)
       The Yearwood defendant argued that the Reform Act should apply retroactively,
based on Estrada, because the Reform Act reduced the punishment for his offense. The
Yearwood court disagreed, finding that “[t]he Estrada rule does not apply to the [Reform]
Act because section 1170.126 operates as the functional equivalent of a saving clause.”
(Yearwood, supra, 213 Cal.App.4th at p. 172.) The court examined the language of
section 1170.126, subdivision (b), which provides, “Any person serving an indeterminate
term of life imprisonment” imposed for a third strike conviction “may file a petition for a
recall of sentence.” The court found this phrase was “not ambiguous” and that
section 1170.126 “is correctly interpreted to apply to all prisoners serving an
indeterminate life sentence imposed under the former three strikes law.” (Yearwood,
supra, at p. 175.)
       On June 30, 2016, the California Supreme Court similarly held that third strike
defendants who were sentenced prior to the effective date of the Reform Act, but whose
judgments were not yet final as of that date, “are not entitled to automatic resentencing,
but instead may seek resentencing by petitioning for recall of sentence under
section 1170.126.” (People v. Conley (2016) 63 Cal.4th 646, 652 (Conley).) Among the
court’s reasons in reaching this conclusion was the fact that “the Reform Act is not silent

                                             9
on the question of retroactivity.” (Id. at p. 657.) Rather, “[s]ection 1170.126 creates a
special mechanism that entitles all persons ‘presently serving’ indeterminate life terms
imposed under the prior law to seek resentencing under the new law. By its terms, the
provision draws no distinction between persons serving final sentences and those serving
nonfinal sentences, entitling both categories of prisoners to petition courts for recall of
sentence under the Act.” (Ibid.; see § 1170.126, subd. (a).)
       The California Supreme Court further explained that “[t]he recall procedures in
Penal Code section 1170.126 were designed to strike a balance between [the] objectives
of mitigating punishment and protecting public safety by creating a resentencing
mechanism for persons serving indeterminate life terms under the former Three Strikes
law, but making resentencing subject to the trial court’s evaluation of whether, based on
their criminal history, their record of incarceration, and other relevant considerations,
their early release would pose an ‘unreasonable risk of danger to public safety.’
[Citation.]” (Conley, supra, 63 Cal.4th at p. 658.) The California Supreme Court
“[could] discern no basis to conclude that the electorate would have intended for courts to
bypass the public safety inquiry altogether in the case of defendants serving sentences
that are not yet final.” (Id. at p. 659.) Lastly, the court reasoned that the Reform Act did
not address certain procedural complexities, regarding the pleading and proof of new
disqualifying factors, which would arise if the Reform Act automatically applied to
previously sentenced defendants, because voters intended for such defendants to instead
follow the petition process which did not implicate those procedural complexities. (Id. at
pp. 659-661.)
                                        2. Analysis
       Defendant contends that he was automatically entitled to relief under
Proposition 47 and the resulting statutory amendment that changed his drug offenses
from felonies to misdemeanors.



                                              10
       The question of whether retroactive application of Proposition 47’s reduced
penalty provisions is required under Estrada requires a determination of the intent of the
electorate (Estrada, supra, 63 Cal.2d at p. 744), which may be signaled by the inclusion
of “either an express saving clause or its equivalent” (Nasalga, supra, 12 Cal.4th at
p. 793; see Estrada, supra, at p. 747).
       We determine that although Proposition 47 does not have an express saving
clause, it did create section 1170.18, which is functionally equivalent to a saving clause.
(See Nasalga, supra, 12 Cal.4th at p. 793; Pedro T., supra, 8 Cal.4th at p. 1049; Estrada,
supra, 63 Cal.2d at p. 747.) In enacting Proposition 47, the electorate drew distinctions
between three categories of defendants—those who had not yet been sentenced, those
who were “currently serving” sentences (§ 1170.18, subd. (a)), and those who had
completed their sentences (id., subd. (f))—and it provided procedures for those latter two
categories of defendants who sought to benefit from the ameliorative provisions provided
by Proposition 47. In particular, under section 1170.18, subdivision (a), a defendant who
is “currently serving a sentence for a conviction” may petition for a recall of sentence and
resentencing. Like the resentencing petition process created by the Reform Act, the
resentencing petition process contained in section 1170.18, subdivision (a) expressly
applies to defendants who are “currently serving a sentence” for a crime that would have
been a misdemeanor after the passage of Proposition 47. (Cf. § 1170.126, subds. (a) &
(b); see Conley, supra, 63 Cal.4th at pp. 657-658; Yearwood, supra, 213 Cal.App.4th at
p. 173.) Further, like the resentencing process created by the Reform Act, the
resentencing process contained in section 1170.18, subdivision (b) makes resentencing
subject to the trial court’s evaluation of whether resentencing the defendant “would pose
an unreasonable risk of danger to public safety.” (Cf. § 1170.126, subd. (f); see Conley,
supra, at pp. 658-659; Yearwood, supra, 213 Cal.App.4th at p. 176.) By setting forth a
specific procedure for those defendants who were “currently serving a sentence” at the
time the initiative took effect and in view of the nature of that procedure (§ 1170.18,

                                             11
subd. (a); see id., subd. (b)), the electorate effectively and clearly “demonstrate[d] its
intention” that such defendants follow those procedures set forth in section 1170.18
before being resentenced (Pedro T., supra, at p. 1049).3
       We therefore turn to the question of whether defendant is “currently serving a
sentence” (§ 1170.18, subd. (a)), such that the recall and resentencing procedure set forth
in section 1170.18 applies to him. (See, e.g., id., subds. (a) - (d).)
       C. “Currently Serving a Sentence”
       Defendant contends that, because the imposition of his sentence was suspended in
each case and he was placed on probation (see § 1203, subd. (a)), he was not “currently
serving a sentence” within the meaning of section 1170.18, subdivision (a). The Attorney
General contends that defendant, as a probationer, was “currently serving a sentence”
within the meaning of section 1170.18, subdivision (a).
       “ ‘In interpreting a voter initiative . . . , we apply the same principles that govern
statutory construction. [Citation.] Thus, [1] “we turn first to the language of the statute,
giving the words their ordinary meaning.” [Citation.] [2] 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]. [Citation.] [3] 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.] [¶] In other words,
our ‘task is simply to interpret and apply the initiative’s language so as to effectuate the



       3
         In People v. Davis (2016) 246 Cal.App.4th 127 (Davis), review granted July 13,
2016, S234324, the appellate court similarly concluded that, for defendants who were
currently serving a sentence or who had completed a sentence for a felony covered by
Proposition 47, “the electorate made clear its intent as to the nature and extent of the
retroactive application of the amendments. For those persons, there is no need, and no
place, for inferences about retroactive application, and therefore no basis for invoking
Estrada.” (Davis, supra, at p. 137.)


                                              12
electorate’s intent.’ [Citation.]” (Robert L. v. Superior Court (2003) 30 Cal.4th 894,
900-901.)
       In People v. Garcia (2016) 245 Cal.App.4th 555 (Garcia), we determined that the
phrase “currently serving a sentence” in section 1170.18, subdivision (a), “appl[ies] to all
those with felony dispositions, including those placed on probation who otherwise meet
the conditions specified in the statutory scheme.” (Garcia, supra, at p. 559.)4 In Garcia,
as in the instant case, the trial court suspended imposition of sentence and placed the
defendant on probation for felony possession of a controlled substance (former Health &
Saf. Code, § 11377, subd. (a)). (Garcia, supra, at p. 557.)
       We agreed with the parties in Garcia that interpreting the statutory language to
not include probationers would lead to absurd consequences. We observed that “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.” (Garcia, supra, 245 Cal.App.4th at p. 558.) Moreover, “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’].)” (Ibid.) Indeed, “the
language of another voter initiative, Proposition 36, the Substance Abuse and Crime
Prevention Act of 2000, used the language ‘sentenced to probation.’ (See People v.


       4
        In Davis, supra, 246 Cal.App.4th at pages 132 and 143, review granted, the
appellate court similarly concluded that probationers fall within the meaning of section
1170.18, subdivision (a).


                                             13
Mendoza (2003) 106 Cal.App.4th 1030, 1034 [quoting ballot pamphlet to distinguish
conviction from sentence and referring to ‘sentence of probation’].)” (Ibid.)
       We explained in Garcia that “[t]he ballot materials for Proposition 47 likewise
indicate that the voters regarded 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 Prop. 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.’ (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
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 11377
cases, without segregating those serving prison sentences from those serving probation
terms. (§ 1170.18, subds. (a), (b).) . . . 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, § 3, p. 70.) 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.” (Garcia, supra, 245 Cal.App.4th at pp. 558-559, fns. omitted.)
       Defendant fails to persuade us that Garcia is distinguishable from his case or that
we should otherwise not follow Garcia.

                                              14
       Defendant argues that, because section 1170.18, subdivision (a) authorizes a
petition for recall of sentence from the trial court that entered the “judgment of
conviction,” subdivision (a) does not apply to a probationer whose imposition of sentence
has been suspended because no such judgment has been entered. However, section 1237,
subdivision (a), which governs criminal appeals, provides that a “final judgment of
conviction” includes an order granting probation.
       Defendant also argues that applying the procedures set forth in section 1170.18 to
probationers “is inconsistent with the voters’ intent in passing Proposition 47.” For
example, according to defendant, probation is only granted to those defendants who pose
minimal risk to public safety, so requiring a trial court to assess those defendants’ risk to
public safety under section 1170.18, subdivisions (b) and (c) is “redundant” and
subjecting those defendants to a parole requirement undermines the purpose of
Proposition 47 “by diminishing the financial resources.”
       We are not persuaded by defendant’s arguments. Some of the provisions in
section 1170.18 may be more appropriately applied to one defendant over another
defendant, whether those two defendants are both in prison, both on probation, or one in
prison and one on probation. The provisions of section 1170.18 are not inconsistent with
an intent by the electorate to include probationers within the recall/resentencing
procedures. For example, that a court may be more likely to have public safety concerns
when a recall petition is brought by a defendant in prison as compared to a petition
brought by a probationer, does not suggest that the electorate intended to allow a recall
petition by a prisoner only and not by a probationer.
       D. Summary
       Defendant, who was on probation, sought to have his felony drug convictions
designated misdemeanors. The trial court apparently determined that defendant had
not yet been sentenced, and that therefore none of the procedures provided by
section 1170.18 was available to defendant while he was on probation. The court

                                             15
consequently revoked and terminated defendant’s probation, sentenced him to 16 months
in jail in each case, immediately recalled the sentences, and resentenced defendant to
misdemeanors for the drug convictions.
       However, as we explained in Garcia, supra, 245 Cal.App.4th 555, which was filed
after the hearing on defendant’s petitions for resentencing in this case, defendant was
“currently serving a sentence” within the meaning of section 1170.18, subdivision (a) at
the time he was on probation. Therefore, the trial court could have properly considered
defendant’s petition for recall and resentencing under subdivision (a) without terminating
his probation and imposing a felony sentence in each case.
       Although defendant ultimately obtained the relief to which he was entitled under
section 1170.18, subdivision (b), that is, resentencing to a misdemeanor for each of his
eligible felony convictions, he contends his claims on appeal are not moot and that there
may be collateral consequences as a result of the trial court’s procedure in revoking
probation and imposing felony sentences. At oral argument, defendant and the Attorney
General agreed that the proper remedy would be to strike the trial court’s orders revoking
probation and imposing felony sentences. Accordingly, we will vacate the trial court’s
orders in these respects and affirm the orders as so modified.
                                   IV. DISPOSITION
       In case No. SS132528A, the order of April 24, 2015 is ordered modified by
vacating: (1) the order revoking and terminating probation, and (2) the order imposing a
16-month felony sentence. As so modified, the order of April 24, 2015 is affirmed.
       In case No. SS140906A, the order of April 24, 2015 is ordered modified by
vacating: (1) the order revoking and terminating probation, and (2) the order imposing a
16-month felony sentence. As so modified, the order of April 24, 2015 is affirmed.




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                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




People v. Valdez
H042346
