Filed 2/18/16 P. v. Ehrman 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042008
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS142999A)

         v.

HEATHER LEE EHRMAN,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Heather Lee Ehrman committed a forgery offense prior to the
enactment of Proposition 47, which reclassified certain felony drug and theft related
offenses as misdemeanors, including forgery relating to a check with a value of $950 or
less. (Pen. Code, §§ 470, subd. (d), 473, subd. (b).)1 After the effective date of
Proposition 47, defendant was charged with felony forgery related to a $190 check.
(§ 470, subd. (d).) Defendant moved to have the trial court designate the charge as a
misdemeanor pursuant to Proposition 47, but the trial court denied her motion.
Defendant subsequently pleaded no contest to felony forgery. The trial court imposed a
felony sentence, then granted defendant’s petition to recall her sentence (§ 1170.18,

         1
             All further statutory references are to the Penal Code unless otherwise noted.
subd. (a)), reclassified her forgery offense as a misdemeanor, suspended imposition of
sentence, and placed defendant on informal probation for three years.
       On appeal, defendant contends that her forgery offense became a misdemeanor
upon the effective date of Proposition 47, and thus that the trial court erred by initially
imposing a felony sentence. In the alternative, defendant contends that if the trial court
correctly imposed an initial felony sentence, it erred by placing her on informal
(misdemeanor) probation after recalling that sentence.
       For reasons that we will explain, we conclude that the issue of Proposition 47’s
retroactivity is moot in this case, and that the trial court did not err by placing defendant
on informal probation after recalling her initial felony sentence. We will therefore affirm
the order placing defendant on informal probation.

                                  II.    BACKGROUND
       On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and
Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), effective
Nov. 5, 2014.) Proposition 47 reclassified certain felony drug and theft related offenses
as misdemeanors, including forgery related to a check with a value of $950 or less.
(§§ 470, subd. (d), 473, subd. (b).) Through Proposition 47, voters also enacted new
statutory provisions whereby a person serving a felony sentence for a reclassified offense
can petition for a recall of his or her sentence. (§ 1170.18, subd. (a).)
       On December 1, 2014, the District Attorney filed a complaint charging defendant
with felony forgery related to a check (§ 470, subd. (d); count 1) and misdemeanor petty
theft (§ 484a, subd. (a); count 2). The complaint alleged that both offenses had occurred
on July 31, 2014, several months prior to the enactment of Proposition 47. The charges




                                              2
were based on defendant’s use of a forged $190 check to purchase a cell phone.2 Prior
to the instant offenses, defendant’s criminal history consisted of convictions of
misdemeanor battery (§ 242), misdemeanor receiving stolen property (§ 496, subd. (a)),
felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and
misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)).
       On January 21, 2015, defendant filed a motion requesting the court designate the
forgery count “as a misdemeanor for all purposes pursuant to Proposition 47.” Defendant
argued that Proposition 47 applied retroactively to her since her case was not yet final.
Defendant also argued that under the equal protection clauses of the state and federal
constitutions, her offense should be “given Proposition 47 treatment.”
       The trial court denied defendant’s motion to designate her offense as a
misdemeanor. The trial court indicated that its “understanding of the law” was that
Proposition 47 did not apply to defendant’s offense because it was committed before
Proposition 47 went into effect.
       Defendant’s trial counsel then explained that there would be a negotiated
disposition: defendant would plead no contest to the forgery count, and the petty theft
count would be dismissed. Defendant’s trial counsel indicated he anticipated filing a
petition to recall the felony sentence right after defendant was sentenced. Defendant then
pleaded no contest to “Count 1, felony violation of Penal Code section 470(d), forgery.”
       Defendant’s sentencing hearing was held on February 20, 2015. Defendant argued
that it would be “an illegal sentence, to impose sentence on a felony, if, in fact, Prop. 47
is retroactive.” The trial court initially imposed a felony sentence: a two-year jail term,
with a $300 restitution fine (§ 1202.4, subd. (b)(1)).


       2
        The check was from a Wells Fargo Bank account and indicated that the account
holders were Rusty MacMillan and Mary Ellen King. Defendant signed the check as
Mary Ellen King.


                                              3
        In open court immediately after the trial court imposed the felony sentence,
defendant filed a petition to recall her sentence. (See § 1170.18, subd. (a).) The
prosecutor indicated he had no objection to the petition, and the trial court granted it.
The trial court designated defendant’s forgery conviction as a misdemeanor, recalled the
felony sentence, suspended imposition of sentence, and placed defendant on informal
probation for three years. The trial court imposed the same $300 restitution fine that it
had previously imposed. The trial court dismissed the petty theft count.
        Defendant thereafter filed a notice of appeal, indicating her appeal was based on
the sentence or other matters occurring after the plea that do not affect the validity of the
plea.

                                    III.    DISCUSSION
        Defendant contends that her forgery offense became a misdemeanor upon the
effective date of Proposition 47. Thus, defendant contends, the trial court erred by
refusing to designate her offense as a misdemeanor prior to sentencing and by initially
imposing a felony sentence. In the alternative, defendant contends that if the trial court
correctly imposed an initial felony sentence, it erred by placing her on informal
(misdemeanor) probation after recalling that sentence.
        A.     Legal Background: Proposition 47
        As noted above, Proposition 47 was a voter initiative that was enacted on
November 4, 2014 and became effective the following day, November 5, 2014.
        In section 2 of the initiative, the electorate declared that it was enacting
Proposition 47 “to ensure that prison spending is focused on violent and serious offenses,
to maximize alternatives for nonserious, nonviolent crime, and to invest the savings
generated from this act into prevention and support programs in K–12 schools, victim
services, and mental health and drug treatment.” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 2.)



                                               4
       Section 3 of the initiative specified six items that comprised the “purpose and
intent of the people of the State of California” in enacting Proposition 47: “(1) Ensure
that people convicted of murder, rape, and child molestation will not benefit from this
act. [¶] (2) Create the Safe Neighborhoods and Schools Fund. . . . [¶] (3) Require
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession, unless the defendant has prior convictions for specified violent or
serious crimes. [¶] (4) Authorize consideration of resentencing for anyone who is
currently serving a sentence for any of the offenses listed herein that are now
misdemeanors. [¶] (5) Require a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that they do not pose a risk to
public safety. [¶] (6) This measure will save significant state corrections dollars on an
annual basis. . . . This measure will increase investments in programs that reduce crime
and improve public safety, . . . which will reduce future expenditures for corrections.”
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3.)
       The statutes amended by Proposition 47 include section 473, which specifies the
punishment for forgery. Section 473 now provides in subdivision (b) that “any person
who is guilty of forgery relating to a check, . . . where the value of the check . . . does not
exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a
county jail for not more than one year,” unless the defendant has certain disqualifying
prior convictions or if he or she is “convicted both of forgery and of identity theft . . . .”
       Proposition 47 also created a new statutory remedy for “[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” had Proposition 47 been in effect at the time
of the offense. (§ 1170.18, subd. (a).) Such a person “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 the statutes that were “amended or added by
this act.” (Ibid.) If, “[u]pon receiving a petition under subdivision (a),” the trial court

                                               5
finds that the petitioner is eligible for resentencing, “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” (§ 1170.18, subd. (b)), which is defined in section 1170.18,
subdivision (c) as “an unreasonable risk that the petitioner will commit” one of the
“super strike” offenses listed in section 667, subdivision (e)(2)(C)(iv).3 (See People v.
Rivera (2015) 233 Cal.App.4th 1085, 1092.) “In exercising its discretion, the court may
consider all of the following: [¶] (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to victims, the length of
prior prison commitments, and the remoteness of the crimes. [¶] (2) The petitioner’s
disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any other
evidence the court, within its discretion, determines to be relevant . . . .” (§ 1170.18,
subd. (b).)
       B.     Prejudice/Mootness
       We first determine whether a reversal of the orders in this case would have any
practical effect. “ ‘An action that involves only abstract or academic questions of law

       3
         The following felonies are listed in section 667, subdivision (e)(2)(C)(iv):
“(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under
14 years of age, and who is more than 10 years younger than he or she as defined by
Section 288a, sodomy with another person who is under 14 years of age and more than
10 years younger than he or she as defined by Section 286, or sexual penetration with
another person who is under 14 years of age, and who is more than 10 years younger
than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a
child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense,
including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
[¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault
with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of
subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction,
as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious
and/or violent felony offense punishable in California by life imprisonment or death.”


                                               6
cannot be maintained. [Citation.] And an action that originally was based on a
justiciable controversy cannot be maintained on appeal if all the questions have become
moot by subsequent acts or events. A reversal in such a case would be without practical
effect, and the appeal will therefore be dismissed.’ [Citation.]” (People v. Herrera
(2006) 136 Cal.App.4th 1191, 1198 (Herrera).)
       The Attorney General contends that even if Proposition 47 required defendant’s
offense to be designated as a misdemeanor prior to sentencing, defendant was not
prejudiced by the imposition of an initial felony sentence, because after the trial court
granted her recall petition, defendant received the exact misdemeanor sentence she would
have received if the trial court had simply imposed a misdemeanor sentence in the first
instance.
       Defendant asserts that she “suffered felony consequences” from the initial felony
sentence: the potential use of her conviction as a “prior felony conviction” to enhance
her punishment in a future case, and the imposition of “felony restitution fines.”
              1.     Prior Felony Conviction
       Under subdivision (k) of section 1170.18, “Any felony conviction that is recalled
and resentenced under subdivision (b) . . . shall be considered a misdemeanor for all
purposes, except that such resentencing shall not permit that person to own, possess, or
have in his or her custody or control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (Italics
added.)
       In People v. Park (2013) 56 Cal.4th 782 (Park), the California Supreme Court
interpreted an identical phrase to that italicized above, contained in section 17,
subdivision (b).4 The Park court found that the language “ ‘a misdemeanor for all

       4
        Section 17, subdivision (b)(3) governs the procedure for reducing felony
“wobbler” offenses to misdemeanors. It provides: “When a crime is punishable, in the
(continued)

                                              7
purposes’ ” precluded imposition of a section 667, subdivision (a) sentencing
enhancement based on a prior “wobbler” conviction that had been reduced to a
misdemeanor. (Park, supra, at pp. 793, 798-799.) The Supreme Court held that the
reduction of the wobbler to a misdemeanor pursuant to section 17, subdivision (b)(3)
meant there was no prior serious felony within the meaning of section 667,
subdivision (a). (Park, supra, at p. 787.) The court explained, “It is evident from the
statutory language that a wobbler becomes a ‘misdemeanor for all purposes’ under
section 17(b)(3) only when the court takes affirmative steps to classify the crime as a
misdemeanor. When the court properly has exercised its discretion to reduce a wobbler
to a misdemeanor under the procedures set forth in section 17(b), the statute generally has
been construed in accordance with its plain language to mean that the offense is a
misdemeanor ‘for all purposes.’ ” (Id. at p. 793.) The Park court found that nothing in
the language or history of section 667, subdivision (a) signaled an intent to override that
general rule. (Park, supra, at p. 799.)
       Similarly, here, since defendant’s conviction for forgery is now a misdemeanor
“for all purposes” (§ 1170.18, subd. (k)), there is no prior felony conviction that could be
used to enhance defendant’s punishment in future cases.
       Subdivision (k) of section 1170.18 does provide for other consequences of
defendant’s initial felony sentence: “Any felony conviction that is recalled and
resentenced under subdivision (b) . . . shall be considered a misdemeanor for all purposes,
except that such resentencing shall not permit that person to own, possess, or have in his


discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances: [¶] . . . [¶] (3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or on application of the
defendant or probation officer thereafter, the court declares the offense to be a
misdemeanor.” (Italics added.)


                                             8
or her custody or control any firearm or prevent his or her conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.” However, prior to
the instant case, defendant suffered a felony conviction for possession of a controlled
substance. (Health & Saf. Code, § 11377, subd. (a).) Thus, even before her conviction in
this case, defendant had a felony conviction that precluded her from possessing a firearm.
(See § 29800, subd. (a)(1).)
                 2.   Felony Restitution Fine
       When the trial court imposed the initial felony sentence for defendant’s forgery
conviction, it imposed a $300 restitution fine pursuant to section 1202.4, subdivision (b).
After recalling defendant’s felony sentence, designating her forgery offense as a
misdemeanor, and placing defendant on informal probation, the trial court also imposed a
$300 restitution fine.
       Under section 1202.4, subdivision (b)(1), the minimum restitution fine for a felony
conviction is $300 and the minimum restitution fine for a misdemeanor conviction is
$150. Defendant’s prejudice argument is based on the assumption that, if the trial court
had not imposed an initial felony sentence, it would have imposed the minimum
restitution fine of $150 for a misdemeanor. The Attorney General points out that the
$300 restitution fine was well within the trial court’s discretion in a misdemeanor case,
since the maximum restitution fine is $1,000 for misdemeanors. (See § 1202.4,
subd. (b)(1).)
       On this record, given that the trial court did not expressly state an intent to order
the minimum restitution fine under section 1202.4, subdivision (b), defendant has not
shown that imposition of the $300 fine for her misdemeanor conviction was a result of
the trial court’s imposition of an initial felony sentence.




                                               9
              3.       Conclusion – Prejudice/Mootness
       Defendant has not shown that as to her, resolution of the issue presented would
have any “practical effect.” (Herrera, supra, 136 Cal.App.4th at p. 1198.) Thus, we
need not reach the merits of defendant’s claim regarding Proposition 47’s retroactivity.
       C.     Probation Order
       Defendant contends that if the trial court correctly imposed an initial felony
sentence, it erred by placing her on informal (misdemeanor) probation after recalling that
sentence.5 Defendant contends the order of informal probation was an unauthorized
sentence because the only sentencing options after the granting of a section 1170.18
recall petition are (1) one year of parole or (2) no supervision.
       Defendant relies on section 1170.18, subdivision (d), which provides in pertinent
part: “A person who is resentenced pursuant to subdivision (b) shall be given credit for
time served and shall be subject to parole for one year following completion of his or her
sentence, unless the court, in its discretion, as part of its resentencing order, releases the
person from parole.”
       The Attorney General contends that section 1170.18, subdivision (d) does not limit
the trial court, upon granting a recall petition, to imposition of a one-year parole term or
no supervision. Rather, the Attorney General argues, section 1170.18, subdivision (d)
requires a one-year parole term following the completion of the new misdemeanor
sentence. The Attorney General also points out that defendant requested she be placed on
informal probation.
       In interpreting section 1170.18, subdivision (d), we apply settled rules of statutory
interpretation, which are applicable to voter initiatives like Proposition 47. “We first
consider the initiative’s language, giving the words their ordinary meaning and

       5
         A grant of informal probation is a “ ‘conditional sentence,’ ” which is authorized
only in a misdemeanor case. (See People v. Glee (2000) 82 Cal.App.4th 99, 104.)


                                              10
construing this language in the context of the statute and initiative as a whole. If the
language is not ambiguous, we presume the voters intended the meaning apparent from
that language, and we may not add to the statute or rewrite it to conform to some assumed
intent not apparent from that language. If the language is ambiguous, courts may
consider ballot summaries and arguments in determining the voters’ intent and
understanding of a ballot measure. [Citation.]” (People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 571.)
       Defendant’s construction of section 1170.18, subdivision (d) does not comport
with its plain language. The statute does not state that upon resentencing, a petitioner is
to be immediately placed on parole. Rather, section 1170.18, subdivision (d) provides
that a “resentenced” person “shall be subject to parole for one year following completion
of his or her sentence” (italics added), meaning that the parole requirement applies after
completion of the new misdemeanor sentence to which the court has resentenced the
person. Defendant’s construction of the statute would mean that the trial court would
never be able to impose a misdemeanor sentence upon granting a resentencing petition.
The statute plainly contemplates that upon recalling a felony sentence, the trial court is to
impose a new misdemeanor sentence, which is to be followed by a one-year parole term
unless that requirement is waived. (See § 1170.18, subd. (b), italics added [upon granting
a petition, “the petitioner’s felony sentence shall be recalled and the petitioner
resentenced to a misdemeanor”].)
       We conclude the trial court did not impose an unauthorized sentence by placing
defendant on informal (misdemeanor) probation after granting defendant’s recall petition.

                                   IV.    DISPOSITION
       The order placing defendant on informal probation is affirmed.




                                              11
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




People v. Ehrman
H042008
