Filed 7/7/16

                          CERTIFIED FOR PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                    E063745

v.                                                   (Super.Ct.No. FVA1301982)

CASEY JONES, JR.,                                    OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with

directions.

        William G. Holzer, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Karl T. Terp,

Deputy Attorneys General, for Plaintiff and Respondent.




                                             1
       Defendant and appellant, Casey Jones, Jr., appeals an order denying his petition to

designate his conviction for burglary (Pen. Code, § 459) as misdemeanor shoplifting

(§ 459.5)1 under section 1170.18, which California voters enacted as part of The Safe

Neighborhoods and Schools Act (Proposition 47). Jones also appeals the order denying

his motion to strike the one-year prison prior enhancement (§ 667.5, subd. (b)) imposed

in this case on the basis of a conviction in a prior case which the superior court had

previously designated a misdemeanor. Jones contends the superior court erred by

inadvertently denying his petition to designate the burglary conviction a misdemeanor

and by denying his motion to strike the enhancement because the redesignated

misdemeanor conviction could not have supported an enhancement had Proposition 47

been in effect at the time of his offenses.

       Proposition 47 creates a procedure for offenders to obtain reclassification and

resentencing on convictions on a retroactive basis, but does not provide a similar

procedure for striking or dismissing sentence enhancements retroactively. As a result, we

conclude the superior court did not err in refusing to strike the prison prior enhancement.

However, we conclude the superior court erred in summarily denying Jones’s petition to

have his burglary conviction reclassified as misdemeanor shoplifting. We therefore

affirm in part, reverse in part, and remand for further proceedings.




       1   Unlabeled statutory citations refer to the Penal Code.

                                              2
                              FACTUAL BACKGROUND

       In case No. FVA1301982, prosecutors charged Jones with one felony count of

commercial burglary (§ 459, count 1), one felony count of petty theft with three priors

(§ 666, subd. (a), count 2), one misdemeanor count of assault on a police animal (§ 600,

subd. (a), count 3), and two felony counts of resisting an executive officer (§ 69, counts

4, 5). The complaint alleged Jones had two prison priors. (§ 667.5, subd. (b).)

       In the commercial burglary count, the prosecution alleged “On or about November

6, 2013 . . . the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation

of PENAL CODE SECTION 459, a felony, was committed by Casey Jones Jr, who did

enter a commercial building occupied by Walgreens with the intent to commit larceny

and any felony.” According to a police incident report, Jones was arrested because he

“walked into the Walgreens business and placed miscellaneous items into his pants

pockets and waistband and walked out of the business without paying for them.” The

report indicates Jones stole three packages of Dove body wash and one 6-pack of Dove

body soap. Together, the items were worth $35.46.

       Regarding the prison priors, the prosecution “further alleged as to count(s) 1, 2, 4,

5 pursuant to Penal Code section 667.5(b) that the defendant(s) Casey Jones Jr, has

suffered . . . prior conviction(s)” in “Court Case FVI1202922 [for violating] PC459” and

in “Court Case FSB1302227 [for violating] PC 666(A),” and “a term was served as

described in Penal Code section 667.5 for said offense(s), and that the defendant(s) did




                                             3
not remain free of prison custody for, and did commit an offense resulting in a felony

conviction during, a period of five years subsequent to the conclusion of said term.”

       On November 22, 2013, Jones pled guilty to the commercial burglary count, the

two resisting an executive officer counts, and admitted the prison prior allegation related

to case No. FSB1302227. On motion of the prosecution, the trial court dismissed counts

2 and 3 and struck the prison prior allegation related to case No. FVI1202922. The trial

court sentenced Jones to the upper term of three years in county jail for the burglary

conviction, two concurrent upper terms of three years for the resisting an executive

officer convictions, and a consecutive one-year enhancement for the prison prior. The

trial court ordered two years six months of the sentence suspended and imposed

mandatory supervision for the same period. However, on March 5, 2014, the trial court

found Jones had violated the conditions of mandatory supervision and ordered him to

serve 730 days in county jail.

       On November 4, 2014, the voters of California passed Proposition 47, reducing

some felony theft-related offenses to misdemeanors when the value of the stolen property

does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as shoplifting],

490.2, subd. (a) [redefining some grand theft offenses as petty theft].) The initiative also

created a procedure allowing offenders “who would have been guilty of a misdemeanor

under [Proposition 47] had [the] act been in effect at the time of the offense” to file a

petition (or application) in the trial court that entered the judgment of conviction “to have

the felony conviction or convictions designated as misdemeanors” if the offender has


                                              4
completed serving his or her sentence (§ 1170.18, subd. (f)) or “to request resentencing in

accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or

Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have

been amended or added” by Proposition 47. (§ 1170.18, subd. (a).)

       Jones filed a Proposition 47 petition in a prior case (No. FSB1302227), requesting

the conviction treated as a prison prior in this case (No. FVA1301982) be designated a

misdemeanor. On April 24, the trial court granted the petition in the prior case and

ordered his felony conviction for violating section 666 reduced to a misdemeanor under

section 1170.18.2

       On April 10, 2015, Jones submitted a petition in this case asking the trial court to

designate his second degree burglary conviction as a misdemeanor under section

1170.18, subdivision (f). Jones requested a hearing under section 1170.18,

subdivision (h). On April 20, 2015, Jones filed a motion for resentencing in this case.3

Jones sought “an overall reduction in his sentence of one year based on the

reclassification of the ‘prison prior’ to a misdemeanor.”




       2
         At Jones’s request, we take judicial notice of the minute order designating his
prison prior conviction a misdemeanor. (Evid. Code, §§ 452, subd. (d)(1), 459,
subd. (a).) The People do not oppose Jones’s request.
       3
         Jones’s motion precedes the superior court’s order designating the prison prior
as a misdemeanor. Jones based the motion on his understanding that “opposing counsel
appear to be in agreement that defendant is entitled to reclassification of this offense to
misdemeanor status pursuant to Penal Code Section 1170.18 (f)-(n).”

                                             5
       On May 22, 2015, the superior court held a hearing.4 As the People concede,

neither the parties nor the superior court mentioned Jones’s petition to reclassify his

second degree commercial burglary conviction as misdemeanor shoplifting at the

hearing. Nor did the superior court take evidence at the hearing. Instead, the court heard

argument limited to the issue of whether a prison prior enhancement must be stricken if

the underlying conviction has been designated a misdemeanor under a separate section

1170.18 petition. The trial court held “[t]he fact that the underlying offense has now

been re-classified as a misdemeanor does not change the fact that the person, in fact, did

serve a prior prison term. And does not change the public policy arguments behind

[section] 667.5(b), that a person who did serve a prior prison term deserves an enhanced

sentence for that effect [sic], despite the fact that that underlying conviction has been

reduced to a misdemeanor.” The trial court also rejected the objection that interpreting

the statutes in that way violates equal protection. The court concluded that for those

reasons “the petition for resentencing to strike the prior prison term allegation and strike

the one-year enhancement for that prior prison term allegation is denied.” In a minute

order filed after the hearing, the superior court denied Jones’s petition.




       4
           The superior court heard consolidated argument in two cases on the issue.

                                              6
                                       DISCUSSION

I.     Standard of Review

       The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh

v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) We apply

the same principles that govern statutory construction to interpret a voter initiative.

(People v. Rizo (2000) 22 Cal.4th 681, 685.) “‘The fundamental purpose of statutory

construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of

the law. [Citations.]’” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) “In

determining intent, we look first to the words themselves. [Citations.] When the

language is clear and unambiguous, there is no need for construction. [Citations.] When

the language is susceptible of more than one reasonable interpretation, however, we look

to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to

be remedied, the legislative history, public policy, contemporaneous administrative

construction, and the statutory scheme of which the statute is a part. [Citations.]”

(People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.) This appeal also requires us to

decide whether the principles of equal protection require striking Jones’s sentencing

enhancement, a question we review de novo. (Raef v. Appellate Division of Superior

Court (2015) 240 Cal.App.4th 1112, 1120.)

II.    Motion to Strike the Prison Prior Enhancement

       A.     Proposition 47 does not provide for striking enhancements retroactively




                                               7
       Jones contends the superior court erred by denying his motion to strike the one-

year enhancement of his sentence based on a felony conviction in a prior case

(No. FSB1302227) reclassified as a misdemeanor after his conviction was final and he

had begun serving his prison sentence. We disagree.

       Proposition 47 changed portions of the Penal Code to reduce certain theft-related

offenses from felonies or wobblers to misdemeanors, unless the offenses were committed

by certain ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)

Proposition 47 also created a procedure making those changes available to offenders who

had previously been convicted of reclassified offenses. (§ 1170.18; Alejandro N. v.

Superior Court (2015) 238 Cal.App.4th 1209, 1217.)

       The plain language of the section setting out the new procedures expressly allows

offenders to seek redesignation of and resentencing on felony convictions that have

become final. (§ 1170.18.) An offender “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.”

(§ 1170.18, subd. (a).) An offender 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 [it] been in effect at the time of the offense, may file an application




                                              8
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.” (§ 1170.18, subd. (f).)

       The focus of these procedures is redesignation of convictions, not enhancements.

Neither procedure provides for either the recall and resentencing or the redesignation,

dismissal, or striking of sentence enhancements. (§ 1170.18, subds. (a), (b), (f), (g).) No

similar provision provides a process for offenders to seek to strike or otherwise

redesignate sentencing enhancements. It follows that nothing in the language of section

1170.18 allows or even contemplates the retroactive redesignation, dismissal, or striking

of sentence enhancements imposed in a final judgment entered before Proposition 47

passed, even where the offender succeeds in having the underlying conviction itself

deemed a misdemeanor.

       Jones contends section 1170.18, subdivision (k) provides the statutory basis for

altering sentencing enhancements. That subdivision states “[a]ny 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.” (Italics added.)

According to Jones, since the conviction underlying his prison prior was deemed a

misdemeanor, subdivision (k) required the superior court (and requires us) to treat the

offense as a misdemeanor for all purposes, including “for the purpose of [the] prison

prior enhancement.” Imposing a sentence enhancement under section 667.5, subdivision

(b) requires proof the defendant was previously convicted of a felony. (In re Preston




                                              9
(2009) 176 Cal.App.4th 1109, 1115.) Thus, Jones argues, his prior conviction—now a

misdemeanor—no longer supports imposing the enhancement.

       We assume, without deciding, that subdivision (k) bars a post-Proposition 47

sentencing court from imposing a section 667.5, subdivision (b) enhancement based on a

prior felony conviction that has been redesignated as a misdemeanor. It does not follow,

however, that subdivision (k) allows the courts to strike prison prior enhancements

imposed prior to Proposition 47 based on prior convictions redesignated as misdemeanors

after judgment and sentence have become final. The first case involves the prospective

application of section 1170.18, subdivision (k). The second case, which describes

Jones’s situation, involves its retroactive application. We conclude subdivision (k) does

not apply retroactively.




                                           10
       No part of the Penal Code is retroactive, unless it expressly so declares. (§ 3;

People v. Brown (2012) 54 Cal.4th 314, 319.) Proposition 47 does not contain a

provision declaring its provisions automatically retroactive. Instead, it provides

procedures making its provisions available retroactively to certain offenders who petition

for resentencing or redesignation of their convictions. (§ 1170.18; Alejandro N. v.

Superior Court, supra, 238 Cal.App.4th at p. 1217 [“By adding section 1170.18 to the

Penal Code, the Proposition 47 voters made this felony-to-misdemeanor reclassification

available to qualifying offenders on a retroactive basis”], italics added.) Thus,

Proposition 47 has retroactive effect only to the extent section 1170.18 provides a

procedure to petition for reclassification or resentencing.

       As we conclude above, section 1170.18 provides no such procedure for the

retroactive dismissal or striking of enhancements. Absent express language in section

1170.18 allowing the redesignation, dismissal, or striking of past sentence enhancements,

we cannot infer voters intended the Act to apply retroactively to past sentence

enhancements. As a result, the direction of section 1170.18, subdivision (k) that any

redesignated conviction “shall be considered a misdemeanor for all purposes,” applies, at

most, prospectively to preclude future or non-final sentence enhancements based on

felony convictions redesignated as misdemeanors under Proposition 47.

       We conclude section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow

offenders to request and courts to grant retroactive designation of offenses such as

Jones’s prison prior, but no provision allows offenders to request or courts to order


                                             11
retroactively striking or otherwise altering an enhancement based on such a redesignated

prior offense. Absent such an express provision, we cannot apply the statute

retroactively.5 (§ 3.)

       B.      Equal protection does not require retroactive striking of enhancements

       Jones contends refusing to strike the prison prior enhancement retroactively

violates his right to equal protection of the laws. (U.S. Const., 14th Amend., § 1 [“No

state shall . . . deny to any person within its jurisdiction the equal protection of the laws”];

Cal. Const., art. I, § 7 [“A person may not be . . . denied equal protection of the laws”].)

We disagree.

       “The first prerequisite to a meritorious claim under the equal protection clause is a

showing that the state has adopted a classification that affects two or more similarly

situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530.) If the

state has adopted such a classification, the courts review it under a level of scrutiny

adjusted according to the nature of the distinction the law makes between groups of



       5   Our holding is limited to the retroactive application of section 1170.18 and does
not imply a superior court may impose an enhancement based on a prison prior
reclassified before the court imposes the sentence. (See People v. Abdallah (2016)
246 Cal.App.4th 736; see also Couzens & Bigelow, Proposition 47: “The Safe
Neighborhoods and Schools Act” (May 2016) p. 94-95, at < http://www.courts.ca.gov/
documents/Prop-47-Information.pdf > [as of June 27, 2016] [“[C]hanging the sentence of
one count fairly puts into play the sentence imposed on non-Proposition 47 counts, at
least to the extent necessary to preserve the original concurrent/consecutive sentencing
structure. The purpose of section 1170.18 is to take the defendant back to the time of the
original sentence and resentence him with the Proposition 47 count now a
misdemeanor”].)

                                              12
people. If the law makes distinctions based on suspect classifications or impacts exercise

of a fundamental right, the court will uphold the law only if it is necessary to advancing a

compelling state interest. (People v. Silva (1994) 27 Cal.App.4th 1160, 1167.) Other

legal distinctions are permissible provided they bear a rational relationship to a legitimate

state purpose. (Ibid.)

       Jones contends our interpretation of section 1170.18 creates two similarly situated

groups, members of which will be treated differently under the law.6 Jones suggests “a

defendant who is serving a prison sentence for violating section 666 is eligible for relief

under section 1170.18” whereas “a defendant who is serving an additional year of

custody under section 667.5, subdivision (b)” for the same offense would not be eligible

for relief. We do not understand how the class of offenders who violated section 666 are

situated similarly to Jones. At the time Jones committed his offenses, section 666

imposed increased punishment only for offenders who had three or more qualifying prior

convictions. (§ 666, subd. (a), Stats. 2010, ch. 219 (Assem. Bill No. 1844), § 15, eff.

Sept. 9, 2010, italics added.) Proposition 47 amended section 666 by requiring only one

qualifying prior conviction, but limited its application to offenders who are “required to



       6Jones also contends we should apply strict scrutiny “because personal liberty is
a fundamental right.” However, our Supreme Court has rejected that position,
concluding that “subject[ing] all criminal classifications to strict scrutiny requiring the
showing of a compelling state interest” would “‘intrude[ ] too heavily on the police
power and the Legislature’s prerogative to set criminal justice policy.’” (People v.
Wilkinson (2004) 33 Cal.4th 821, 838.)



                                             13
register pursuant to the Sex Offender Registration Act, or who ha[ve] a prior violent or

serious felony conviction” under section 667, subdivision (e)(2)(C). (§ 666, subd. (b).)

In addition, an offender convicted of petty theft with priors faced a maximum sentence of

three years in state prison (§§ 666, 18), instead of six months in county jail (§ 490). A

defendant who committed the same crime, but pled guilty (as Jones did in this case) to

felony second degree commercial burglary (§ 459) and admitted serving a prison prior

(§ 667.5, subd. (b)), faced a sentence of up to three years in state prison for the burglary

(§§ 461, subd. (b), 1170, subd. (h)) and an additional year for the enhancement (§ 667.5,

subd. (b)). Thus, the defendants Jones posits would face different sentences even before

application of Proposition 47.

       In any event, the California Supreme Court has held “neither the existence of two

identical criminal statutes prescribing different levels of punishments, nor the exercise of

a prosecutor’s discretion in charging under one such statute and not the other, violates

equal protection principles.” (People v. Wilkinson, supra, 33 Cal.4th at p. 838.) The

same reasoning applies to Proposition 47’s provision for the possibility of sentence

reduction for a defendant whose sentence was increased under section 666, but not one

whose sentence was enhanced under section 667.5, subdivision (b). Absent a showing

that a particular defendant “‘has been singled out deliberately for prosecution on the basis

of some invidious criterion,’ . . . the defendant cannot make out an equal protection

violation.” (People v. Wilkinson, supra, at p. 839.) Jones has made no such showing.




                                             14
       Nor does the sentencing disparity violate equal protection for treating defendants

who have yet to be sentenced and have a prison prior where the underlying conviction has

been reduced to a misdemeanor differently from defendants who are serving or have

served a prison sentence under a judgment imposing a prison prior enhancement based on

a redesignated offense. “A refusal to apply a statute retroactively does not violate the

Fourteenth Amendment.” (People v. Aranda (1965) 63 Cal.2d 518, 532, superseded by

statute on another ground as recognized in People v. Capistrano (2014) 59 Cal.4th 830,

868, fn. 10.) Equal protection principles do “not forbid statutes and statutory changes to

have a beginning, and thus to discriminate between the rights of an earlier and later

time.” (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.) Furthermore,

because prospective sentencing changes presumably recognize “legitimate . . . concerns

associated with the transition from one sentencing scheme to another,” applying the Act

prospectively but not retrospectively bears a rational relationship to the legitimate state

interest of transitioning from the old sentencing scheme to the new sentencing scheme.

(People v. Floyd (2003) 31 Cal.4th 179, 191) Consequently, we conclude Jones has not

shown the superior court’s refusal to strike his sentence enhancement retroactively

violated his right to equal protection of the laws.




                                             15
III.   Petition for Resentencing on the Burglary Conviction

       Jones contends the superior court erred by ruling summarily that he was not

entitled to resentencing on his conviction for burglary of the Walgreens under new

section 459.5.7 We agree.

       Proposition 47 added section 459.5 to the Penal Code. The new section provides:

“(a) Notwithstanding Section 459 [burglary], shoplifting is defined as entering a

commercial establishment with intent to commit larceny while that establishment is open

during regular business hours, where the value of the property that is taken or intended to

be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a

commercial establishment with intent to commit larceny is burglary.” Except in the cases

of offenders with specified serious prior convictions, section 459.5 directs “[s]hoplifting

shall be punished as a misdemeanor.” (§ 459.5, subd. (a), italics added.) Subdivision (b)

further directs “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as

shoplifting” and that “[n]o person who is charged with shoplifting may also be charged

with burglary or theft of the same property.” (§ 459.5, subd. (b), italics added.)

       Under section 459.5, subdivision (a), Jones would be entitled to resentencing for

misdemeanor shoplifting if the items he stole did not exceed $950 in value. The police

incident report related to Jones’s burglary arrest indicates he was arrested because he



       7  Jones also contends the superior court intended to grant his petition and denied
it inadvertently. However, the record on appeal establishes only that Jones believed the
superior court had granted the petition.

                                             16
“walked into the Walgreens business and placed miscellaneous items into his pants

pockets and waistband and walked out of the business without paying for them.”

According to the report, Jones stole three packages of Dove body wash and one 6-pack of

Dove body soap. Together, these items were worth $35.46. This information appears to

establish Jones “would have been guilty of a misdemeanor” had section 459.5 “been in

effect at the time of the offense.” (§ 1170.18, subds. (a), (f).) If the police report is

credited, his offense is a classic case of shoplifting and the superior court should have

reclassified his conviction.

       Jones filed his petition for resentencing under section 1170.18, subdivision (f) and

requested a hearing to determine his eligibility. Given such a request, the trial court was

required to provide a hearing. (People v. Shabazz (2015) 237 Cal.App.4th 303, 311;

§ 1170.18, subd. (h) [“Unless requested by the applicant, no hearing is necessary to grant

or deny an application filed under subsection (f)”].) According to the record, the superior

court held a hearing, but the issue of reducing the second degree burglary conviction to a

misdemeanor conviction was never addressed. Further, the trial court never indicated its

intention to deny the petition with respect to the commercial burglary count, despite the

agreement of the parties that defendant was entitled to relief. Defendant was thereby

denied any opportunity to address the reasons leading the court to its conclusion. The

trial court’s course of action effectively denied Jones a hearing on his petition for

resentencing his commercial burglary conviction.




                                              17
       We do not hold the superior court may never summarily deny a resentencing

petition. However, when a defendant has requested and is statutorily entitled to a

hearing, the superior court must hold a hearing and give the defendant a fair opportunity

to make his case. That did not happen here.

                                      DISPOSITION

       We reverse the order to the extent it denied Jones’s petition for resentencing on

count 1, affirm the order to the extent it denied his motion to strike the prison prior

enhancement, and remand for further proceedings consistent with this opinion.

       CERTIFIED FOR PUBLICATION


                                                                 SLOUGH
                                                                                            J.

We concur:


HOLLENHORST
          Acting P. J.


MILLER
                           J.




                                             18
