Filed 2/10/16




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                     F068131
        Plaintiff and Respondent,
                                                          (Super. Ct. Nos. BF142935A,
                  v.                                        BF143806A, BF146935A,
                                                                  SF016996A)
JAMES TILTON RUFF,

        Defendant and Appellant.                                   OPINION



        APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
        Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.




*      Under California Rules of Court, rules 8.1105(b) and 8.1110, only the
Introduction, part III of the Discussion, and the Disposition are certified for publication.
                                   INTRODUCTION
       James Tilton Ruff (defendant) stands convicted, following a jury trial, of second
degree robbery. (Pen. Code, § 212.5, subd. (c); see id., § 211.)1 He was found to have
served multiple prior prison terms. (§ 667.5, subd. (b).) On September 18, 2013, he was
sentenced to five years in prison for the robbery, plus a consecutive one-year term for two
of the enhancements, for a total of seven years.2
       On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (Proposition 47 or the Act), which went into effect the next day.
(People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony
or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an
ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see
§ 1170.18, subd. (i).) Insofar as is pertinent here, it also provided a mechanism by which
a person who had completed his or her sentence for a conviction of a felony that was
made a misdemeanor by the Act, could apply to the trial court that entered the judgment
of conviction and have the felony offense designated as a misdemeanor. (§ 1170.18,
subds. (f), (g).) While defendant’s appeal was pending, the conviction underlying one of


1      All statutory references are to the Penal Code unless otherwise stated.
2      The trial court struck the punishment on the other prior prison term enhancements.
       Case No. BF146935A is defendant’s conviction from which he appeals. Cases
Nos. BF142935A, BF143806A, and SF016996A are separate convictions. Defendant
was found in violation of probation in each of those cases based on his commission of
robbery in case No. BF146935A. The trial court imposed concurrent sentences in each of
those cases. Subsequent to his appeal in case No. BF146935A, defendant petitioned this
court for an order adding cases Nos. BF142935A, BF143806A, and SF016996A to his
appeal. That petition was granted. Subsequently, the trial court, on application of
defendant pursuant to section 1170.18, subdivision (f), reduced those separate
convictions to misdemeanors and struck all section 667.5, subdivision (b) allegations. In
each of those cases, the trial court sentenced defendant to one year, all to run
concurrently, and gave him credit for one year. Defendant does not challenge the ruling
in those cases on appeal.


                                            2.
the prior prison term enhancements imposed in the current case was designated a
misdemeanor under the Act.
       In the published portion of this opinion, we hold that a previously imposed
sentence enhanced by a section 667.5, subdivision (b) prior prison term is not altered by
the granting of a Proposition 47 application reducing the felony that gave rise to that prior
prison term to a misdemeanor. The Act does not so operate retroactively. In the
unpublished portion, we conclude defendant is not entitled to reversal based on
instructional error or juror misconduct. Accordingly, we affirm.
                                         FACTS*
       Joshua Ortiz and Dessmar Ayala were cashiers at a Chevron gas station in
downtown Bakersfield. At approximately 1:30 a.m. on February 24, 2013, they were
working when defendant entered the store. Ortiz was in the “C store” area, which was
enclosed on three sides by a counter and was where all the cashiering was done. A
variety of cigarettes were displayed along the back wall of the enclosed area. Ayala was
headed toward the restrooms to clean them.
       Defendant entered the store and went toward the bathroom. Ayala told him the
bathrooms were closed for cleaning. Defendant replied, “I don’t give a shit. I’m going to
take a piss.” He then kicked open the unlocked door and went inside. Not wanting to
cause a problem, Ayala let him go in and went back to the counter to talk to Ortiz.
       A little over a minute later, defendant exited the restroom and walked toward the
C store counter area.3 An unlocked swinging gate allowed access from the main part of
the store to that area; however, customers were not allowed to enter. When defendant got
close to the gate, Ortiz moved over to guard the gate by positioning his body in front of it,
and he told defendant that no one was allowed in that area.

*      See footnote, ante, page 1.
3     Store surveillance video of the incident was played for the jury. We have also
viewed the video.


                                             3.
       According to Ortiz, defendant lunged toward him with both hands toward Ortiz’s
neck. Defendant’s fist contacted the left side of Ortiz’s lower lip, causing Ortiz to go
backwards. Ortiz told defendant he was not supposed to be over there, he needed to
leave, and Ortiz was going to call the police. Defendant said he was going to come in
there and get what he wanted, and he did not care. Defendant then entered the C store
area and proceeded to move toward Ortiz’s face. Ortiz grabbed him and began to hit him.
Ortiz felt “very violated” and afraid.
       Defendant grabbed a pack of cigarettes and put them in his pocket. Ayala came
over to help Ortiz. Defendant started to exit the C store area as Ayala reached the gate.
Defendant shoved Ayala, who backed up because defendant had started swinging at him.
Ayala was afraid.
       Ortiz told defendant they were going to call the police. Defendant said to call
them, that he did not care. Defendant then left the store. Although he did not pay for the
cigarettes, Ortiz did not try to prevent him from leaving with them. Ortiz was unaware of
any Chevron policy about apprehending someone who committed an offense within the
store. He was required to report the incident to his supervisor and did so.
       Ayala called the police. Bakersfield Police Officer McIntyre responded within a
few minutes. He obtained a description of the perpetrator from Ortiz and Ayala, and
broadcast it over radio channels. He subsequently was informed officers had located a
similar-looking person about half a mile away. McIntyre transported Ortiz to that
location, where Ortiz identified defendant. When contacted by the officers, defendant
had a brand new, unopened pack of cigarettes on his person. Ortiz identified the
cigarettes.




                                             4.
                                      DISCUSSION
                                             I*
                       REFUSAL TO INSTRUCT ON SELF-DEFENSE
A.     Background
       Defendant moved, in limine, to be permitted to voir dire prospective jurors on self-
defense. The trial court granted the request, but warned it did not know whether self-
defense instructions would ultimately be given, as it did not know what the evidence
would show. It noted that self-defense was not normally a defense to robbery, although it
acknowledged there might be instances where it could be.
       At the conclusion of the evidentiary portion of trial, defendant requested that the
trial court instruct on self-defense (CALCRIM No. 3470). Defense counsel argued self-
defense had been the defense theory all along, and there was evidence supporting it. The
People opposed the request, arguing that self-defense is not a defense to robbery, and
giving the instruction would require the People to prove an element they normally would
not be required to prove under the robbery instruction, namely that the crime was not
committed in self-defense.
       The trial court refused to give CALCRIM No. 3470. It acknowledged that “on
some level,” defendant was relying on self-defense. It stated, however: “[T]his is a case
where I just don’t see any evidence of self[-]defense, let alone substantial evidence of
self[-]defense. Basically, the clerk walks over with his arms folded. He just basically
unfold[s] his arms, and then the next thing he’s being pushed across the booth there by
the defendant. And as the defendant is holding him with one hand and he’s grabbing the
cigarettes with the other, so — and I do appreciate — and I did allow you to voir dire on
this, but I did warn you that you may not get this instruction, and I’m going to refuse this
instruction. I just don’t see any evidence of self[-]defense in this case based on what’s

*      See footnote, ante, page 1.


                                             5.
been presented to the jury. [¶] Certainly, if there is some — if there is no — by any
stretch of imagination it can’t be, so I’m going to refuse that instruction 3470 .…”
       Defendant now contends the trial court erred by refusing to instruct on self-
defense. We disagree.
B.     Analysis
       Section 211 defines robbery as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” Thus, “[r]obbery is larceny with the
aggravating circumstances that ‘the property is taken from the person or presence of
another …’ and ‘is accomplished by the use of force or by putting the victim in fear of
injury.’ [Citation.] In California, ‘[t]he crime of robbery is a continuing offense that
begins from the time of the original taking until the robber reaches a place of relative
safety.’ [Citation.]” (People v. Anderson (2011) 51 Cal.4th 989, 994.) Accordingly, the
offense is robbery even when the property was peacefully acquired if force or fear was
used to retain it or to carry it away. (Ibid.; People v. Bradford (2010) 187 Cal.App.4th
1345, 1349.)
       The intent required for robbery is the specific intent permanently to deprive the
victim of the property. (People v. Anderson, supra, 51 Cal.4th at p. 994.) Because “‘[a]s
a general rule, no crime is committed unless there is a union of act and either wrongful
intent or criminal negligence’” (ibid.), “‘the act of force or intimidation by which the
taking is accomplished in robbery must be motivated by the intent to steal .…’
[Citation.]” (Ibid.) Although all the elements of robbery must be satisfied before the
crime is completed, “no artificial parsing is required as to the precise moment or order in
which the elements are satisfied.” (People v. Gomez (2008) 43 Cal.4th 249, 254.)
Nevertheless, if “the intent to steal arose only after force was used, the offense is theft,
not robbery. [Citations.]” (People v. Turner (1990) 50 Cal.3d 668, 688; accord, People
v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.)

                                              6.
       “It is well settled that a defendant has a right to have the trial court, on its own
initiative, give a jury instruction on any affirmative defense for which the record contains
substantial evidence [citation] — evidence sufficient for a reasonable jury to find in favor
of the defendant [citation] — unless the defense is inconsistent with the defendant’s
theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 982.)4 Similarly,
“[a] trial court need only give those requested instructions supported by evidence that is
substantial. [Citation.]” (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, vacated and
remanded on other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802.)
       “In determining whether the evidence is sufficient to warrant a jury instruction, the
trial court does not determine the credibility of the defense evidence, but only whether
‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable
doubt .…’ [Citations.]” (People v. Salas, supra, 37 Cal.4th at pp. 982-983.) “The court
must ‘take the proffered evidence as true, “regardless of whether it was of a character to
inspire belief. [Citations.]” [Citation.] “‘Doubts as to the sufficiency of the evidence to
warrant instructions should be resolved in favor of the accused.’ [Citations.]”’
[Citation.] On appeal, we independently review the court’s refusal to instruct on a
defense. [Citation.]” (People v. Orlosky (2015) 233 Cal.App.4th 257, 270.)
       “[A]n offensive touching, although it inflicts no bodily harm, may nonetheless
constitute a battery, which the victim is privileged to resist with such force as is


4       The trial court’s duty to instruct on defenses is often phrased in the disjunctive,
“arising ‘only if it appears that the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the defense is not inconsistent with
the defendant’s theory of the case.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th
186, 195, italics added; see, e.g., People v. Nguyen (2015) 61 Cal.4th 1015, 1052; People
v. Booker (2011) 51 Cal.4th 141, 179; People v. Sedeno (1974) 10 Cal.3d 703, 716,
overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 165,
disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685,
fn. 12.) As the California Supreme Court made clear in Flannel, however, such
phraseology is incorrect. (People v. Flannel, supra, at pp. 684-685, fn. 12.)


                                              7.
reasonable under the circumstances.” (People v. Myers (1998) 61 Cal.App.4th 328, 335;
see §§ 242, 693.) “A person attacked is not bound to retreat but is entitled to stand and
defend himself and act as a reasonable man under the circumstances as they appear to
him. [Citation.]” (People v. Duchon (1958) 165 Cal.App.2d 690, 693.) For a battery to
be in self-defense, however, “the defendant must actually and reasonably believe in the
need to defend. ‘Although the belief in the need to defend must be objectively
reasonable, a jury must consider what “would appear to be necessary to a reasonable
person in a similar situation and with similar knowledge .…” [Citation.]’” (People v.
Jefferson (2004) 119 Cal.App.4th 508, 518; see People v. Humphrey (1996) 13 Cal.4th
1073, 1082.)
       “Self-defense is not … a recognized defense to a charge of robbery.” (People v.
Costa (1963) 218 Cal.App.2d 310, 316.) We assume, for the sake of argument, that
evidence of self-defense could be used somehow to show the intent to steal arose only
after force was used, or that the force was not motivated by the intent to steal. (See
People v. Anderson, supra, 51 Cal.4th at p. 994; People v. Turner, supra, 50 Cal.3d at
p. 688.)
       Here, however, there was no substantial evidence defendant was acting in self-
defense, that he only formed the intent to take the cigarettes after the altercation
concluded, or that he used force to defend himself against a perceived threat instead of to
take. The surveillance video clearly shows defendant approach the C store area, stick his
head and part of his upper body over the gate and into the area, and look down at the
inside of the gate where a latch or lock was likely to be. The evidence at trial suggested
no reason why he would seek to enter the C store area other than to take something.
According to the video, Ortiz walked over to the gate. As he uncrossed his arms and
started to hold out his hands, defendant burst through the gate and started fighting with
Ortiz. Defendant did not try to get away, but drove Ortiz to the other end of the C store
enclosure, then held him with a hand to his throat area while grabbing a pack of

                                              8.
cigarettes. In addition, the evidence was uncontradicted that defendant said he was going
to come in and get what he wanted and he did not care. Regardless of when, during the
course of the altercation, that statement was made, it and the video establish defendant’s
intent from the outset was to steal a pack of cigarettes, and thus the intent to steal
motivated defendant’s use of force. (See People v. Gomez, supra, 43 Cal.4th at pp. 264-
265; People v. Estes (1983) 147 Cal.App.3d 23, 28.) There was no substantial evidence
of self-defense and, under the circumstances, instructing on it would have added a
nonexistent element to the offense of robbery. Accordingly, the trial court properly
refused to give CALCRIM No. 3470. (See People v. Anderson, supra, 51 Cal.4th at
p. 999.)
                                              II*
                             DENIAL OF NEW TRIAL MOTION
A.     Background
       After the guilty verdict was returned, the jury was polled. All jurors confirmed
that was their personal verdict, although the trial court agreed with defense counsel that
Juror No. 11 was a bit slower to say yes than the other jurors.
       Defendant subsequently moved for a new trial based on (1) the trial court’s refusal
to instruct on self-defense and (2) juror misconduct. In support, he attached a declaration
from Juror No. 11, who stated that after trial, he told defense counsel he still felt there
was reasonable doubt. Juror No. 11 represented that he initially voted not guilty, but
eventually changed his verdict to guilty even though he felt there was reasonable doubt,
and that he voted guilty because he felt pressured by the other jurors. He stated that after
watching the video, he told the other jurors that the clerk used force first, but everyone
said he was wrong, so he changed his vote to guilty. However, he believed that the clerk
started the physical fight and defendant defended himself. It might have helped had there

*      See footnote, ante, page 1.


                                              9.
been instructions on self-defense. Juror No. 11 also related that during deliberations,
some of the jurors said things like “‘Well, what if that was your kid.’” Defendant also
attached a declaration from Juror No. 8, who stated the guilty verdict was her own
decision and was not pressured, and that she felt defendant used force to defend against
the clerk trying to stop him from stealing. She stated that an instruction on self-defense
might have helped; she may have reached the same conclusion, but such an instruction
“would have clarified it.”
       The People opposed the motion. The prosecutor argued evidence of jurors’ mental
processes was barred by Evidence Code section 1150, subdivision (a); defendant had not
made a strong enough showing of juror misconduct to support an evidentiary hearing;
and there was no misconduct that would raise a presumption of bias.
       At the hearing on the motion, defense counsel argued the statement noted by Juror
No. 11 was the equivalent of jurors placing themselves in the victim’s shoes, and was
conduct prohibited by law. Counsel also observed that jurors sent out a note requesting
an additional explanation concerning “force,” but then returned a verdict a few minutes
later.5 Counsel argued this confirmed Juror No. 11 was intimidated by other jurors.
Finally, she argued that had the jury been given a self-defense instruction, the outcome of
trial would have been different. The prosecutor essentially reiterated what was in his
written response, and asked the court to find that the basis for the claim of misconduct
was simply the jurors’ mental processes and so was inadmissible.
       The trial court stated it had reviewed the trial testimony and store video, and it did
not see any basis for self-defense instructions. As to the jury misconduct issue, the court

5       The jury first retired to deliberate at 2:02 p.m. on July 9, 2013. Shortly after 4:00
that afternoon, jurors sent out a note that read, “please define the word or use of the word
‘FORCE’ as it [a]ppears in Pen Code 211 #4.” The court and counsel were discussing
that note at approximately 4:35 p.m., when the jury sent out a second note, indicating a
verdict had been reached. The jury was brought back the next morning for the taking of
the verdict, and the foreperson confirmed they had indeed reached a verdict.


                                             10.
found the juror declarations amount to the jurors’ subjective reasoning or thought
processes for the most part. As for the statement made during deliberations, the court
saw no basis to hold an evidentiary hearing, because assuming the statement was made
and was admissible, it did not amount to misconduct. The court found defendant
received a fair trial, and so denied the motion for a new trial.
       Defendant now says the trial court erred. We conclude the motion for a new trial
was properly denied.
B.     Analysis
       “When a verdict has been rendered … against the defendant, the court may, upon
his application, grant a new trial … [¶] … [¶] 3. When the jury has … been guilty of any
misconduct by which a fair and due consideration of the case has been prevented;
[¶] … [¶] 5. When the court has misdirected the jury in a matter of law .…” (§ 1181.)
       “The trial court is vested with broad discretion to act upon a motion for new trial.
[Citation.]” (People v. Dykes (2009) 46 Cal.4th 731, 809.) Thus, generally speaking,
“‘“[a] trial court’s ruling on a motion for new trial is so completely within that court’s
discretion that a reviewing court will not disturb the ruling absent a manifest and
unmistakable abuse of that discretion.”’ [Citations.]” (People v. Thompson (2010) 49
Cal.4th 79, 140.) When the motion is based on jury misconduct, however, “the reviewing
court should accept the trial court’s factual findings and credibility determinations if they
are supported by substantial evidence, but must exercise its independent judgment to
determine whether any misconduct was prejudicial. [Citations.]” (People v. Dykes,
supra, 46 Cal.4th at p. 809.)
       In determining whether the trial court erred, we — as did the trial court — must
first determine to what extent, if any, the affidavits supporting the new trial motion were
admissible. As the California Supreme Court has explained:

       “Evidence Code section 1150, subdivision (a), provides: ‘Upon an inquiry
       as to the validity of a verdict, any otherwise admissible evidence may be


                                             11.
       received as to statements made, or conduct, conditions, or events occurring,
       either within or without the jury room, of such a character as is likely to
       have influenced the verdict improperly. No evidence is admissible to show
       the effect of such statement, conduct, condition, or event upon a juror either
       in influencing him to assent or to dissent from the verdict or concerning the
       mental processes by which it was determined.” ([Original italics].)

              “This statute distinguishes ‘between proof of overt acts, objectively
       ascertainable, and proof of the subjective reasoning processes of the
       individual juror, which can be neither corroborated nor disproved .…’
       [Citation.] ‘This limitation prevents one juror from upsetting a verdict of
       the whole jury by impugning his own or his fellow jurors’ mental processes
       or reasons for assent or dissent. The only improper influences that may be
       proved under [Evidence Code] section 1150 to impeach a verdict, therefore,
       are those open to sight, hearing, and the other senses and thus subject to
       corroboration.’ [Citations.]” (People v. Steele (2002) 27 Cal.4th 1230,
       1260-1261.)
       Among the overt acts that are admissible under Evidence Code section 1150,
subdivision (a) are statements. (In re Stankewitz (1985) 40 Cal.3d 391, 398; People v.
Engstrom (2011) 201 Cal.App.4th 174, 183-184.) Even when such evidence may be
received, however, “it must be admitted with caution.” (In re Stankewitz, supra, 40
Cal.3d at p. 398.) Our state high court has “emphasize[d] that, when considering
evidence regarding the jurors’ deliberations, a trial court must take great care not to
overstep the boundaries set forth in Evidence Code section 1150. The statute may be
violated not only by the admission of jurors’ testimony describing their own mental
processes, but also by permitting testimony concerning statements made by jurors in the
course of their deliberations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.)
“Statements have a greater tendency than nonverbal acts to implicate the reasoning
processes of jurors — e.g., what the juror making the statement meant and what the juror
hearing it understood.” (In re Stankewitz, supra, 40 Cal.3d at p. 398.) “In rare
circumstances a statement by a juror during deliberations may itself be an act of
misconduct, in which case evidence of that statement is admissible. [Citation.] But when
a juror in the course of deliberations gives the reasons for his or her vote, the words are


                                             12.
simply a verbal reflection of the juror’s mental processes. Consideration of such a
statement as evidence of those processes is barred by Evidence Code section 1150.”
(People v. Hedgecock, supra, 51 Cal.3d at p. 419.)
       With these principles in mind, we turn to the juror declarations submitted in
support of defendant’s new trial motion. With one possible exception, which we discuss
post, the declarations ran afoul of Evidence Code section 1150, subdivision (a) and so
were inadmissible. “‘“[A] verdict may not be impeached by inquiry into the juror’s
mental or subjective reasoning processes, and evidence of what the juror ‘felt’ or how he
[or she] understood the trial court’s instructions is not competent.”’ [Citations.]”
(People v. Lindberg (2008) 45 Cal.4th 1, 53; accord, People v. Steele, supra, 27 Cal.4th
at p. 1261.) “The mere fact that such mental process was manifested in conversation
between jurors during deliberations does not alter this rule. [Citation.]” (People v.
Sanchez (1998) 62 Cal.App.4th 460, 476.) Similarly, the reasons Juror No. 11 changed
his vote to guilty were “demonstrative only of [his] mental processes and the subjective
considerations which influenced [his] verdict,” and were also inadmissible. (People v.
Peavey (1981) 126 Cal.App.3d 44, 51.)
       We assume (as did the trial court) the statement recounted by Juror No. 11,
“‘Well, what if that was your kid,’” was admissible. We next determine whether it
constituted misconduct. In this regard, “[a]n accused has a constitutional right to a trial
by an impartial jury. [Citations.] An impartial jury is one in which no member has been
improperly influenced [citations] and every member is ‘“capable and willing to decide
the case solely on the evidence before it”’ [citation].” (In re Hamilton (1999) 20 Cal.4th
273, 293-294.) “When the overt event is a direct violation of the oaths, duties, and
admonitions imposed on … jurors, such as when a juror … shares improper information
with other jurors, the event is called juror misconduct. [Citations.]” (Id. at p. 294.)

       “‘Misconduct by a juror … usually raises a rebuttable “presumption” of
       prejudice. [Citations.]’ [Citation.] However, ‘[t]he introduction of much


                                             13.
       of what might strictly be labeled “extraneous law” cannot be deemed
       misconduct. The jury system is an institution that is legally fundamental
       but also fundamentally human. Jurors bring to their deliberations
       knowledge and beliefs about general matters of law and fact that find their
       source in everyday life and experience. That they do so is one of the
       strengths of the jury system. It is also one of its weaknesses; it has the
       potential to undermine determinations that should be made exclusively on
       the evidence introduced by the parties and the instructions given by the
       court. Such a weakness, however, must be tolerated. “[I]t is an impossible
       standard to require … [the jury] to be a laboratory, completely sterilized
       and freed from any external factors.” [Citation.] Moreover, under that
       “standard” few verdicts would be proof against challenge.’ [Citation.]
       ‘The safeguards of juror impartiality … are not infallible; it is virtually
       impossible to shield jurors from every contact or influence that might
       theoretically affect their vote.’ [Citation.]” (People v. Danks (2004) 32
       Cal.4th 269, 302-303.)
       Defendant contends the statements by other jurors pressuring Juror No. 11 to think
about the store clerk as if the clerk were Juror No. 11’s own child were an appeal to bias
and showed jurors disregarded the court’s instruction to follow the law and not to “let
bias, sympathy, prejudice or public opinion influence” their decision. We reject this
reading of the juror’s declaration. It is not clear whether the statement referred to one of
the store clerks or to defendant. Even assuming it referred to a clerk, it lacks any context.
At most, it appears to be an attempt to persuade, rather than an indication of violation of
the court’s instructions. “‘[J]urors can be expected to disagree, even vehemently, and to
attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.’
[Citation.]” (People v. Thompson, supra, 49 Cal.4th at p. 141.) The comment did not
rise to the level of misconduct. (Compare In re Stankewitz, supra, 40 Cal.3d at p. 396
with People v. Thompson, supra, 49 Cal.4th at pp. 140-141.)6


6       The trial court was not required to hold an evidentiary hearing to determine the
meaning or context of the statement. Such a hearing “should be held only when the
defense has come forward with evidence demonstrating a strong possibility that
prejudicial misconduct has occurred.” (People v. Hedgecock, supra, 51 Cal.3d at p. 419,
italics added.) Defendant did not do so here.


                                             14.
       The trial court properly denied the motion for a new trial.
                                            III
        PROPOSITION 47’S EFFECT ON PRIOR PRISON TERM ENHANCEMENTS
A.     Background
       The information in this case alleged, and the trial court found, defendant had
suffered the following enhancements under section 667.5, subdivision (b):
       — A conviction for violating Health and Safety Code section 11377,
subdivision (a), suffered on or about March 8, 2007, in Kern County Superior Court case
No. BF116218A.
       — A conviction for violating section 69, suffered on or about March 8, 2007, in
Kern County Superior Court case No. BF115630A.
       — A conviction for violating Health and Safety Code section 11377,
subdivision (a), suffered on or about July 6, 2010, in Kern County Superior Court case
No. SF015607A.
       — A conviction for violating Health and Safety Code section 11377,
subdivision (a), suffered on or about January 6, 2012, in Kern County Superior Court
case No. SF016331A.
       — A conviction for violating Health and Safety Code section 11377,
subdivision (a), suffered on or about October 31, 2012, in Kern County Superior Court
case No. BF143806A.
       Defendant was sentenced on September 18, 2013. At sentencing, the court found
defendant served a single prison term in cases Nos. BF116218A and BF115630A.
Accordingly, it struck the punishment as to case No. BF116218A, and imposed a one-
year term, pursuant to section 667.5, subdivision (b), for case No. BF115630A. It
explained that case No. BF115630A was a conviction for violating section 69, and so
involved some sort of violence. The court also imposed an additional one-year term,
pursuant to section 667.5, subdivision (b), for defendant’s prior conviction in case

                                            15.
No. SF016331A, but struck the punishment for defendant’s prior convictions in cases
Nos. SF015607A and BF143806A. The court explained it felt a seven-year total term
was a just punishment under the circumstances of the case, and in light of defendant’s
mental health issues.
       Proposition 47 went into effect on November 5, 2014. (Cal. Const., art. II, § 10,
subd. (a).) On December 18, 2014, defendant filed petitions under section 1170.18 in
cases Nos. BF116218A, BF143806A, SF015607A, and SF016331A.
       On April 6, 2015, the trial court granted defendant’s petitions.7 As relevant here,8
the trial court reclassified the conviction in case No. SF016331A as a misdemeanor “for
all purposes.” It expressly ordered no further parole or sentence modification.


7       The petitions/applications were ruled on by a different judge than presided over
trial and imposed sentence in defendant’s current robbery case. (See § 1170.126,
subd. (j).)
8       In his supplemental opening and reply briefs, defendant states the trial court
imposed enhancements in case No. BF146935A based on allegations three and five, i.e.,
cases Nos. SF015607A and BF143806A. Defendant has misread the record. At pages
457 and 458 of the reporter’s transcript, the trial court stated: “Now, with regards to the
sentencing enhancements pursuant to [section] 667.5[, subdivision ](b), there were five.
I’m going to — with regards to the first one alleged, that’s BF116218A, although, I did
find he did serve a separate prior prison term. That apparently is not the case based on
my review of the probation report or the re-review of the evidence. [¶] He did serve the
same — it was the same prison term he served in the second prior alleged in BF115630A
which was the [section] 69, so I’m going to strike the punishment for the BF116218A on
the basis it’s not … actually a separate prior prison term as which is BF115630 which I
will impose a one[-]year term, an additional term pursuant to [section] 667.5[,
subdivision ](b) for his prior conviction in that matter. It was a [section] 69 offense and it
did involve some sort of violence. I’m also going to impose another additional one[-
]year term pursuant to [section] 667.5[, subdivision ](b) for … SF016331A, and that was
a drug conviction that he did serve a prior separate prison term for, and I’m going to
strike the punishment for the third alleged prior conviction SF015607A, and the fifth
BF143806A .… [¶] The punishment for those two prior convictions as well, the third
alleged and the fifth alleged prior convictions. I’m going to strike the punishment.”
      As defendant recognizes, Proposition 47 had no impact on section 69, for which
defendant was convicted in case No. BF115630A. Accordingly, the one-year

                                             16.
       The issue before us is whether the additional one-year term imposed by the trial
court pursuant to section 667.5, subdivision (b), for defendant’s prior conviction in case
No. SF016331A must now be stricken because, subsequent to defendant’s September 18,
2013, sentencing, that prior conviction was reduced to a misdemeanor pursuant to
section 1170.18, subdivision (f). Defendant says it must. The Attorney General
disagrees, as do we.9
B.     Analysis
       Section 1170.18, enacted as part of Proposition 47, provides in pertinent part:

               “(f) A person who has completed his or her sentence for a conviction
       … of a felony … who would have been guilty of a misdemeanor under this
       act had this act been in effect at the time of the offense, may file an
       application 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.



enhancement imposed, pursuant to section 667.5, subdivision (b), is not affected by
Proposition 47.
9       The Attorney General contends defendant has forfeited his argument because he
did not raise it in the lower court. The Attorney General says: “[Defendant’s] petition
for recall of his sentence below did not mention the section 667.5, subdivision (b),
enhancements imposed in his case. [Citation.] Neither he nor his appointed counsel
challenged the enhancements at the lower court hearing. [Citation.] He never invoked
section 1170.18, subdivision (f), to seek reclassification of any of his prior felony
convictions.” To the contrary, defendant’s petitions in cases Nos. BF116218A,
SF015607A, and SF016331A all expressly requested that his felony convictions be
reduced to misdemeanors under section 1170.18, subdivisions (f) and (g). More
importantly, defendant had already filed his notice of appeal, and his appeal was pending,
in the case in which the section 667.5, subdivision (b) enhancements were imposed.
While the lower court had jurisdiction to rule on defendant’s section 1170.18
applications, it had no jurisdiction to alter the sentencing imposed in defendant’s current
robbery case while that case was on appeal. (People v. Alanis (2008) 158 Cal.App.4th
1467, 1472-1473 & cases cited; cf. People v. Superior Court (Gregory) (2005) 129
Cal.App.4th 324, 331-332.) Thus, it would have been futile for defendant to challenge
the enhancements in the hearing on his applications. Accordingly, we reject the Attorney
General’s claim of forfeiture.


                                            17.
              “(g) If the application satisfies the criteria in subdivision (f), the
       court shall designate the felony offense or offenses as a misdemeanor.”
       Defendant was convicted, in case No. SF016331A, of possession of a controlled
substance in violation of Health and Safety Code section 11377, subdivision (a). At the
time, the offense was a “wobbler,” meaning it could be a felony or a misdemeanor,
depending on the punishment imposed. (Former Health & Saf. Code, § 11377, subd. (a);
see § 17, subd. (a).) As defendant served a prison term for the offense, it was classified
as a felony. (See § 17, subd. (b).) Post-Proposition 47, Health and Safety Code
section 11377, subdivision (a) is a misdemeanor, punishable “by imprisonment in a
county jail for a period of not more than one year,” unless the offender has certain
specified prior convictions.10 According to the probation officer’s report, defendant has
no such prior convictions, and the Attorney General does not claim otherwise. Thus, had
the Act been in effect at the time defendant committed the violation of Health and Safety
Code section 11377, subdivision (a) for which he was convicted in case No. SF016331A,
he could only have been convicted of a misdemeanor.
       Subdivision (k) of section 1170.18, provides in pertinent part:

       “Any felony conviction that is … designated as a misdemeanor under
       subdivision (g) 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.”11
       Defendant argues his conviction in case No. SF016331A is now “a misdemeanor
for all purposes” except certain firearm restrictions. (§ 1170.18, subd. (k).) He cites to


10     The prior convictions enumerated in the statute are “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.” (Health & Saf. Code, § 11377, subd. (a).)
11     The specified statutes contain restrictions and prohibitions on firearm possession
for certain persons.


                                              18.
People v. Park (2013) 56 Cal.4th 782 (Park) and says, “when a wobbler has been reduced
to a misdemeanor … the prior conviction does not constitute a prior felony conviction
within the meaning of section 667[, subdivision ](a).”
       In Park, the defendant’s sentence for his current crimes was enhanced by five
years under section 667, subdivision (a), based on his prior conviction of a serious felony.
Prior to the defendant’s commission of his current crimes, however, the trial court
reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3), and then
dismissed it pursuant to section 1203.4, subdivision (a)(1). (Park, supra, 56 Cal.4th at
p. 787.)
       Section 17, subdivision (b)(3) states in part, “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail …, it is a misdemeanor for all purposes … [¶] … [¶] … [w]hen the court
grants probation to a defendant without imposition of sentence and at the time of granting
probation … declares the offense to be a misdemeanor.”
       In Park, the Court of Appeal held the conviction remained a prior serious felony
for purposes of sentence enhancement under section 667, subdivision (a), but the
California Supreme Court disagreed: “[W]hen the court in the prior proceeding properly
exercised its discretion by reducing the … conviction to a misdemeanor, that offense no
longer qualified as a prior serious felony within the meaning of section 667,
subdivision (a), and could not be used, under that provision, to enhance defendant’s
sentence.” (Park, supra, 56 Cal.4th at p. 787, first italics added.)
       Defendant’s reliance on Park is misplaced. In Park, the reduction and dismissal
occurred prior to the defendant’s commission of his current crimes. (Park, supra, 56
Cal.4th at p. 787.) Here, the reduction to a misdemeanor pursuant to section 1170.18,
subdivision (f), occurred after defendant’s commission, conviction, and sentence for his
current crimes. In Park, in response to an argument that People v. Feyrer (2010) 48
Cal.4th 426 and People v. Banks (1959) 53 Cal.2d 370 were contrary to its conclusion,

                                             19.
the court stated: “There is no dispute that, under the rule in those cases, defendant would
be subject to the section 667[, subdivision ](a) enhancement had he committed and been
convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor.” (Park, supra, 56 Cal.4th at p. 802.)
       The issue before us is not whether defendant’s conviction and prison commitment
in case No. SF016331A can now be used to enhance a future sentence pursuant to
section 667.5, subdivision (b), should defendant commit a new felony upon release from
prison on his current sentence. The issue is whether defendant’s current sentence,
enhanced pursuant to section 667.5, subdivision (b), must now be altered because,
subsequent to defendant’s sentencing, the conviction that gave rise to that enhancement
was reduced to a misdemeanor pursuant to section 1170.18, subdivision (f). In other
words, does the Act operate retroactively? To make that determination, we look to the
language of section 1170.18 and to voter intent.
       Section 3 specifies that no part of the Penal Code “is retroactive, unless expressly
so declared.”12 This language “erects a strong presumption of prospective operation,
codifying the 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.]
Accordingly, ‘“a statute that is ambiguous with respect to retroactive application is
construed … to be unambiguously prospective.”’ [Citation.]” (People v. Brown (2012)
54 Cal.4th 314, 324.)
       An “important, contextually specific qualification” to the prospective-only
presumption regarding statutory amendments was set forth in In re Estrada (1965) 63

12     Defendant asserts section 1170.18 “explicitly provides for retroactive relief,” but
then merely points to the language of subdivision (k), that any felony conviction
designated as a misdemeanor “shall be considered a misdemeanor for all purposes,” and
asserts there is no language in the statute precluding the striking of the prior conviction
used to enhance his sentence.

                                             20.
Cal.2d 740 (Estrada). (People v. 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.)
       Although Estrada’s language is broad, the California Supreme Court has
emphasized the rule’s narrowness (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1196): “Estrada is today properly understood, not as weakening or modifying the default
rule of prospective operation codified in section 3, but rather as informing the rule’s
application in a specific context by articulating the reasonable presumption that a
legislative [or voter] act mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments. [Citation.]” (People v. Brown, supra, 54
Cal.4th at p. 324.)
       The question of retroactivity is ultimately one of legislative — or, in this case,
voter — intent. (People v. Shabazz (2015) 237 Cal.App.4th 303, 312-313; see People v.
Nasalga (1996) 12 Cal.4th 784, 793.) “To resolve this very specific retroactivity
question, we apply the well[-]settled rules governing interpretation of voter intent[.]”
(People v. Shabazz, supra, 237 Cal.App.4th at p. 313.) “‘In interpreting a voter initiative
…, we apply the same principles that govern statutory construction. [Citation.] Thus, …
“we turn first to the language of the statute, giving the words their ordinary meaning.”
[Citation.] … The statutory language must also be construed in the context of the statute
as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] … 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



                                             21.
initiative’s language so as to effectuate the electorate’s intent.’ [Citation.]” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.)13
       The Act clearly was intended to lessen punishment for “nonserious, nonviolent
crimes like petty theft and drug possession” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70)14, in order “to ensure that prison
spending is focused on violent and serious offenses .…” (Voter Information Guide, Gen.
Elec., supra, text of Prop. 47, § 2, p. 70). This purpose was conveyed to voters, both in
the text of the then-proposed law and in the arguments supporting Proposition 47. (Voter
Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38; id., rebuttal to
argument against Prop. 47, p. 39; id., text of Prop. 47, §§ 2, 3, p. 70.)
       Nowhere, however, do the Act or the ballot materials reference section 667.5,
subdivision (b) or mention recidivist enhancements, and the Act made no amendments to
any such provisions. Two of the Act’s expressly stated purposes, however, are to
“[a]uthorize consideration of resentencing for anyone who is currently serving a sentence
for any of the offenses” that would be made misdemeanors by the Act, and to “[r]equire 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.” (Voter Information
Guide, Gen. Elec., supra, text of Prop. 47, § 3, subds. (4), (5), p. 70, italics added.)

13      The Attorney General contends the words of section 1170.18, subdivisions (f) and
(g), “operate[] as the functional equivalent of a savings clause giving Proposition 47
prospective-only application.” (See Estrada, supra, 63 Cal.2d at pp. 747-748.) She cites
to People v. Noyan (2014) 232 Cal.App.4th 657, 672. The appellate court in Noyan,
however, in a response to the defendant’s argument Proposition 47 applied retroactively
to his case and so his Health and Safety Code section 11350 convictions should be
reduced from felonies to misdemeanors, simply held the defendant was limited to the
statutory remedy of petitioning for recall of sentence in the trial court once his judgment
was final. In our view, the provisions of section 1170.18, subdivisions (f) and (g) tell us
nothing about the voters’ intent with respect to the issue presented in this appeal.
14     The voter guide can be accessed at <http://vigarchive.sos.ca.gov/2014/general/
en/pdf/> [as of Feb. 10, 2016].


                                              22.
Voters were assured the Act would keep dangerous criminals locked up (Voter
Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38), and that it
would not require automatic release of anyone: “There is no automatic release.
[Proposition 47] includes strict protections to protect public safety and make sure rapists,
murderers, molesters and the most dangerous criminals cannot benefit.” (Id., rebuttal to
argument against Prop. 47, p. 39.)
       “Imposition of a sentence enhancement under … section 667.5 requires proof that
the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of
that conviction; (3) completed that term of imprisonment; and (4) did not remain free for
five years of both prison custody and the commission of a new offense resulting in a
felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.)15
“Sentence enhancements for prior prison terms are based on the defendant’s status as a
recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise
to the current conviction. [Citations.]” (People v. Gokey (1998) 62 Cal.App.4th 932,
936, italics added; see People v. Coronado (1995) 12 Cal.4th 145, 158-159; People v.
Dutton (1937) 9 Cal.2d 505, 507.) Thus, the purpose of an enhancement under section


15      Section 667.5, subdivision (b) currently provides: “Except where subdivision (a)
applies, where the new offense is any felony for which a prison sentence or a sentence of
imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term or county jail term imposed
under subdivision (h) of Section 1170 or when sentence is not suspended for any felony;
provided that no additional term shall be imposed under this subdivision for any prison
term or county jail term imposed under subdivision (h) of Section 1170 or when sentence
is not suspended prior to a period of five years in which the defendant remained free of
both the commission of an offense which results in a felony conviction, and prison
custody or the imposition of a term of jail custody imposed under subdivision (h) of
Section 1170 or any felony sentence that is not suspended. A term imposed under the
provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the
term is suspended by the court to allow mandatory supervision, shall qualify as a prior
county jail term for the purposes of the one-year enhancement.”


                                            23.
667.5, subdivision (b) “is ‘to punish individuals’ who have shown that they are
‘“hardened criminal[s] who [are] undeterred by the fear of prison.”’ [Citation.]” (In re
Preston (2009) 176 Cal.App.4th 1109, 1115.) The enhancement’s focus on the service of
a prison term “indicates the special significance which the Legislature has attached to
incarceration in our most restrictive penal institutions.” (People v. Levell (1988) 201
Cal.App.3d 749, 754.)
       A person who refuses to reform even after serving time in prison is clearly and
significantly more dangerous than someone who merely possesses drugs for personal use
or shoplifts. We cannot conclude, from the language of the Act or the ballot materials,
that voters deemed such persons to be nonserious, nondangerous offenders, and so
intended the Act to reach back to ancillary consequences such as enhancements resulting
from recidivism considered serious enough to warrant additional punishment.
Accordingly, section 3’s default rule or prospective operation, and not Estrada’s narrow
rule of retroactivity, applies.
       People v. Flores (1979) 92 Cal.App.3d 461 (Flores) does not lead to a different
result. In that case, the defendant was convicted in 1966 for possessing marijuana. In
1977, he sold heroin. His sentence for the 1977 offense was enhanced by one year,
pursuant to section 667.5, because of his 1966 conviction. (Flores, supra, at pp. 464,
470.) On appeal, the defendant claimed the enhancement was improper under Estrada,
because Health and Safety Code section 11357 was amended, in 1975, to make
possession of marijuana a misdemeanor. (Flores, supra, at p. 470.) In agreeing with the
defendant, the appellate court stated:

               “The amendatory act imposing the lighter sentence for possession of
       marijuana can obviously be applied constitutionally to prevent the
       enhancement of a new sentence by reason of a prior conviction of
       possession. Moreover, in the case at bench we are not confronted by
       legislative silence with respect to its purpose regarding penalties for
       possession of marijuana.



                                            24.
              “Effective January 1, 1976, Health and Safety Code section 11361.5,
       subdivision (b) was enacted to authorize the superior court, on petition, to
       order the destruction of all records of arrests and convictions for possession
       of marijuana, held by any court or state or local agency and occurring prior
       to January 1, 1976. [Citation.] In 1976, [Health and Safety Code]
       section 11361.7 was added to provide in pertinent part that: ‘(a) Any
       record subject to destruction … pursuant to Section 11361.5, or more than
       two years of age, or a record of a conviction for an offense specified in
       subdivision (a) or (b) of Section 11361.5 which became final more than two
       years previously, shall not be considered to be accurate, relevant, timely,
       or complete for any purposes by any agency or person.… (b) No public
       agency shall alter, amend, assess, condition, deny, limit, postpone, qualify,
       revoke, surcharge, or suspend any certificate, franchise, incident, interest,
       license, opportunity, permit, privilege, right, or title of any person because
       of an arrest or conviction for an offense specified in subdivision (a) or (b)
       of Section 11361.5 … on or after the date the records … are required to be
       destroyed … or two years from the date of such conviction … with respect
       to … convictions occurring prior to January 1, 1976.…’ [Citation.]
       ([Original italics].)” (Flores, supra, 92 Cal.App.3d at pp. 471-472.)
       The appellate court found the statutory language clear and unambiguous. (Flores,
supra, 92 Cal.App.3d at p. 472.) It concluded: “In view of the express language of the
statute and the obvious legislative purpose, it would be unreasonable to hold that the
Legislature intended that one who had already served a felony sentence for possession of
marijuana should be subjected to the additional criminal sanction of sentence
enhancement.” (Id. at p. 473.) The court found the new laws constituted “a legislative
declaration that the old laws were too severe for the quantum of guilt involved” (ibid.),
and distinguished a situation in which the California Supreme Court refused to give
retroactive effect to an amendment to section 17 (Flores, supra, at p. 473) in part because
“[t]here was no suggestion there, as there is here, that the Legislature intended retroactive
application” (id. at p. 474).
       In Flores, as in Park, and in contrast to the present case, the current offense was
committed after the earlier offense was reduced to a misdemeanor. Moreover, the Act
contains no clear expression with respect to retroactivity as was found in Flores. The
closest it gets is the statement, in subdivision (k) of section 1170.18, that “[a]ny felony


                                             25.
conviction that is … designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes, except [specified firearm laws].” (Italics
added.)
       This language, the italicized portion of which is identical to that contained in
section 17, subdivision (b), is not necessarily conclusive, however. (Park, supra, 56
Cal.4th at pp. 793, 794.) It has not been read to mean a defendant could avoid an
imposed sentence enhancement in his current sentence by having the prior offense
subsequently reduced to a misdemeanor. (Id. at p. 802.) Nothing in the language of the
Act or the ballot materials indicates an intention to override the operation of section
667.5, subdivision (b), at least retroactively.
       Defendant served a prison term for the prior conviction at a time the offense was a
felony. It is the service of that prison term, coupled with defendant’s continuing
recidivism, that section 667.5, subdivision (b) punishes. Absent a clear statement of the
electorate’s intent to the contrary — which we do not find — we conclude that, because
defendant served a prison term for his conviction in case No. SF016331A at a time when
the offense was a felony, and had his current sentence enhanced accordingly before the
conviction was reduced, he is not entitled to relief.16
       This conclusion does not render surplusage the “for all purposes” language of
section 1170.18, subdivision (k). Our determination is one of the electorate’s intent.
“Rules such as those directing courts to avoid interpreting legislative enactments as
surplusage are mere guides and will not be used to defeat legislative intent. [Citations.]”
(People v. Cruz (1996) 13 Cal.4th 764, 782.) Moreover, “ambiguities are not interpreted
in the defendant’s favor if such an interpretation would provide an absurd result, or a
result inconsistent with apparent legislative intent. [Citation.]” (Id. at p. 783.)

16     We are not presented with a situation in which there is some constitutional
infirmity in the prior conviction. (See, e.g., People v. Sumstine (1984) 36 Cal.3d 909,
914.)


                                              26.
       Nor does our conclusion violate principles of equal protection. “‘The concept of
equal protection recognizes that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally. [Citation.] Accordingly, “‘[t]he 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.’” [Citation.] “This initial inquiry is not whether persons are similarly
situated for all purposes, but ‘whether they are similarly situated for purposes of the law
challenged.’” [Citation.]’ [Citations.]” (People v. Losa (2014) 232 Cal.App.4th 789,
792-793.)
       Defendant fails to convince us someone who served a prison term for a felony and
had his or her subsequent sentence enhanced therefor while the prior offense was a
felony, is similarly situated to someone whose prior conviction was reduced to a
misdemeanor before it was used to enhance his or her current sentence.17 In any event, it
is settled that “[t]he right to equal protection of the law generally does not prevent the
state from setting a starting point for a change in the law. ‘[T]he Fourteenth Amendment
does not forbid statutes and statutory changes to have a beginning and thus to
discriminate between the rights of an earlier and later time.’ [Citation.] The same rule
applies to changes in sentencing law that benefit defendants.” (People v. Lynch (2012)
209 Cal.App.4th 353, 359.)




17     Were we to find the two were similarly situated, we would conclude the applicable
rational relationship test was satisfied. (See People v. Yearwood (2013) 213 Cal.App.4th
161, 178-179.)


                                             27.
                                DISPOSITION
    The judgment is affirmed.

                                              _____________________
                                                         DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P.J.


_____________________
POOCHIGIAN, J.




                                    28.
