Filed 12/19/16

                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B267479
                                           (Super. Ct. No. 2011020153)
     Plaintiff and Respondent,                  (Ventura County)

v.

MARINA ELIZALDE,

     Defendant and Appellant.



                 At a post-conviction hearing, the trial court
considered two issues: whether defendant violated the terms of
her postrelease community supervision (“PRCS”)(Pen. Code
§ 3450, et seq.1) and whether she was entitled to relief pursuant
to Proposition 47.
                 The trial court found defendant violated the terms of
her PRCS and ordered her to serve 120 days in custody. It then
immediately granted her petition for Proposition 47 relief under
section 1170.18. The effect of the court‟s inconsistent rulings was
to give and take away at the same time. This rendered the

       All statutory references are to the Penal Code unless
        1

otherwise stated.
court‟s order that defendant serve time in custody a nullity.
Defendant served her time in custody rendering this appeal moot.
Because this is a matter of interest to defendants, practitioners of
criminal law, and the public, we discuss the issue.
            We dismiss the appeal as moot.
                              FACTS
            In 2011, Marina Elizalde was convicted of forgery
(§ 475, subd. (b)) and possession of a controlled substance (Health
& Saf. Code, § 11377, subd. (a)). She was sentenced to 16 months
in prison. In 2012, she was released on PRCS.
            In 2015, the Ventura County Probation Agency filed
a petition to revoke Elizalde‟s PRCS. On the same date, Elizalde
filed a petition to have her convictions declared misdemeanors
pursuant to Proposition 47. The trial court held a hearing on
both petitions.
            At the hearing, Elizalde requested that the trial court
consider her Proposition 47 petition before the petition to revoke
her PRCS. The court denied the request.
            Elizalde submitted the matter of her PRCS
revocation on the facts alleged in the petition. The trial court
found her in violation and ordered her to serve 120 days in
county jail with 46 days total credit.
            Immediately thereafter at the same hearing, the trial
court granted Elizalde‟s Proposition 47 petition, redesignated her
convictions as misdemeanors and ordered her to be on
misdemeanor parole for one year.


                                  2
                           DISCUSSION
            Elizalde contends the trial court erred in refusing to
consider her Proposition 47 petition prior to revoking her PRCS.
She argues that had the trial court first reduced her convictions
to misdemeanors, it would have terminated her PRCS and she
could not have been held in violation.
            Proposition 47 reduced certain nonserious and
nonviolent felonies to misdemeanors and added section 1170.18.
Subdivision (a) of section 1170.18 provides that a person who is
currently serving a sentence for a felony conviction that was
reduced to a misdemeanor may petition for a recall of the
sentence.
            Section 1170.18, subdivision (b) provides in part:
“Upon receiving a petition under subdivision (a), the court shall
determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in
subdivision (a), 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.”
            Section 1170.18 contains no language that requires
the trial court to consider Elizalde‟s petition prior to considering
the People‟s petition to find her in violation of PRCS.
Nevertheless, section 1170.18, subdivision (k) provides, “Any
felony conviction that is recalled and resentenced under


                                   3
subdivision (b) . . . shall be considered a misdemeanor for all
purposes . . . .”
             PRCS applies only to felony convictions. (§§ 3450,
subd. (b)(5), 3451, subd. (a).) There is no PRCS for
misdemeanors. Thus, once Elizalde‟s Proposition 47 petition is
granted, PRCS terminates by operation of law, and any
punishment attendant to its violation ends. Therefore it makes
no difference in what order the petitions were decided.
             Here, because the trial court granted Elizalde‟s
Proposition 47 petition, the court‟s prior finding that she violated
PRCS and the attendant sentence of 120 days in jail were
rendered moot. What other sentencing options may have been
available to the court are not before us.
             In response to the concurring opinion, we concur.
                          DISPOSITION
             We dismiss the appeal as moot.
             CERTIFIED FOR PUBLICATION.




                                     GILBERT, P. J.


I concur:



             TANGEMAN, J.




                                 4
YEGAN, J.,
              I reluctantly concur. The result we reach today does
not invoke application of the absurdity rule. (See, e.g., People v.
Harbison (2014) 230 Cal.App.4th 975, 987 (dis. opn. of Yegan,
J.).) It is a good thing that courts do not judge the wisdom of
statutes passed by the legislature or propositions approved by the
voters. (See, e.g., Wells Fargo Bank v. Superior Court (l991) 53
Cal.3d 1082, 1099; Unzueta v. Ocean View School Dist. (l992) 6
Cal.App.4th 1689, 1700.) If we did, the application of Proposition
47 to PRCS violation cases such as this one could result in an “F”
grade. I do not believe that the drafters of Proposition 47 or the
electorate had in mind this situation. PRCS was designed to help
defendants released from state prison. In some instances, the
threat of incarceration will be the only motivation to comply with
the terms of PRCS. The message appellant, and others similarly
situated, receive, is that there is no penal consequence for
violating PRCS. This is not a good idea. Appellant has a severe
addiction to methamphetamine and apparently funds her habit
by the manufacture of fraudulent identification and credit cards.
As indicated in the probation officer‟s written PRCS report:
“Since being released from prison on PRCS, the offender‟s
performance on community supervision has been non-existent.
Not only is she a habitual absconder but she continues to use
drugs and engage in felonious behavior. She is undeserving of
leniency and is deserving of a substantial amount of time in
custody.”
       Appellant received the benefit of “realignment” and was
released from prison on PRCS. She agreed to the terms of PRCS
but has been an abject failure thereon. This occurred long before
she petitioned for Proposition 47 relief. Thereafter, she filed a




                                 1
proposition 47 petition seeking further leniency. She argues that
the proposition 47 petition “must be given priority.” Nothing in
Penal Code, § 1170.18 subdivision (b) so indicates and our opinion
recognizes this. (Maj. opn. ante, p. 3.) Our opinion holds that
Proposition 47 has priority over a precedent PRCS violation.
This results in the erasure of appellant‟s signature from the
PRCS agreement and undercuts the Legislative direction that
realigned defendants should be punished if they violate the terms
of PRCS.
       In People v. Espinoza (2014) 226 Cal.App.4th 635, 640, we
said that “. . . the Legislative largess which resulted in
appellant‟s release from prison came with a price, PRCS. This
was the tradeoff.” Now, the tradeoff‟s teeth have been removed
where Proposition 47 has application. To me, it would make good
sense to hold appellant, and other appellants similarly situated,
to the express terms of their agreements. Thereafter, the trial
court could determine the merits of the proposition 47 petition.
Of course, if, in the discretion of the trial court, it were to
determine that there are circumstances which alleviate the need
for PRCS punishment, so be it. Our holding is obedient to the
letter and perhaps even the spirit of Proposition 47. But it
eviscerates the legislative intent to “. . . „improve public safety
outcomes‟ and facilitate . . . „reintegration back into society.‟” (Id.,
at p. 641, citing Penal Code, § 3450.) Instead, the net effect of
our holding is a “get out of jail free card” for a PRCS violator who
receives Proposition 47 relief.



                                             YEGAN, J.




                                   2
                    David R. Worley, Judge

              Superior Court County of Ventura
               ______________________________

            Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Mary Sanchez and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.
