Filed 2/2/17




                          CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                 F071140
        Plaintiff and Respondent,
                                                       (Super. Ct. No. F14901527)
                 v.

STEVEN JAY JOHNSON,                                            OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
        Michael L. Pinkerton, 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, Daniel B. Bernstein and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-
                                   INTRODUCTION
       On January 24, 2014, Steven Jay Johnson (defendant) entered a business in Fresno
and stole merchandise valued at $1,225. On February 18, 2014, he entered into a plea
agreement in Fresno County Superior Court case No. F14901527 (the current case)
whereby he pled no contest to felony grand theft involving property with a value
exceeding $950 (Pen. Code,1 § 487, subd. (a)) and admitted having served three prior
prison terms (§ 667.5, subd. (b)), one of which resulted from his 2010 conviction for
three counts of second degree commercial burglary (§§ 459, 460, subd. (b)). In return for
the plea, the People dismissed a count of second degree commercial burglary and a
separate case, and agreed to have the five-year term, to which the parties stipulated, run
concurrent with the sentence in a misdemeanor matter. On March 18, 2014, defendant
was sentenced to five years pursuant to section 1170, subdivision (h)(5), calculated as the
middle term of two years for the current offense plus one consecutive year for each of the
prior prison term enhancements.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 has completed his or her sentence for a conviction of a felony that was
made a misdemeanor by the Act, can apply to the trial court that entered the judgment of




1      All statutory references are to the Penal Code.
2     The court ordered that three years of the imposed term be served in the Fresno
County Jail, followed by two years of mandatory supervised release.


                                             2.
conviction and have the felony offense designated as a misdemeanor. (§ 1170.18,
subds. (f), (g).)
       One of the felonies reduced to a misdemeanor by the Act was second degree
commercial burglary. Now if a person “enter[s] a commercial establishment with intent
to commit larceny while that establishment is open during regular business hours” and
takes or intends to take property with a value not exceeding $950, that person has
committed shoplifting, absent circumstances not present here. (§ 459.5, subd. (a).) This
change affects the convictions underlying one of defendant’s prior prison term
enhancements. We hold, however, 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. Accordingly, although the trial court should have formally designated
defendant’s 2010 convictions as misdemeanors, it correctly refused to alter defendant’s
current sentence.
                          PROPOSITION 47 PROCEEDINGS
       Proposition 47 went into effect on November 5, 2014. (Cal. Const., art. II, § 10,
subd. (a).) On November 12, 2014, defendant filed a handwritten “Petition Request”
seeking reclassification of his current grand theft offense to a misdemeanor.
       On December 2, 2014, defendant’s attorney filed a formal motion to recall
defendant’s sentence under Proposition 47, declare his current grand theft offense to be a
misdemeanor, and have defendant immediately released from custody. The People
opposed the motion on the ground the property stolen was valued at over $1,000.
       A hearing was held on defendant’s motion on December 17, 2014. Defense
counsel acknowledged she had no evidence to controvert the information contained in the
probation report that the property taken was above the $950 threshold, but she requested
a continuance to check defendant’s prior record. She asserted one of his 2010
convictions was potentially reducible to a misdemeanor, which could affect the

                                             3.
sentencing in the current case. The court granted the request. The prosecutor confirmed
with the court that the continued hearing would be to address whether defendant’s 2010
convictions in Fresno County Superior Court case No. F10901079 were reducible to
misdemeanors under Proposition 47 and, if reduced, whether that reclassification
invalidated the use of the resulting prison commitment as a section 667.5, subdivision (b)
enhancement.
       Through counsel, defendant filed a supplemental motion to recall his sentence.
Defendant requested that the court declare his 2010 convictions in case No. F10901079 to
be misdemeanors, and resentence him in his current case without the section 667.5,
subdivision (b) enhancement that was based on his 2010 case. The People responded that
they did not oppose defendant’s application to designate his three burglary convictions in
case No. F10901079 as misdemeanors. However, they objected to defendant’s motion to
strike or dismiss any enhancement imposed pursuant to section 667.5, subdivision (b) in
defendant’s current case as a result of those convictions.
       A further hearing was held on March 4, 2015. The court observed defendant had
abandoned his claim that his current offense should be reclassified as a misdemeanor, and
so the issue was whether defendant’s section 667.5, subdivision (b) enhancement that was
based on felony convictions for second degree burglary, was no longer valid because of
the reduction of that crime to a misdemeanor under Proposition 47. After argument on
that issue, the court concluded reduction of the offense to a misdemeanor did not negate
the status of the offender having served a prison term and being a recidivist subject to
enhanced imposition of sentence. Accordingly, it denied the motion.
                                      DISCUSSION
       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 convictions in case
No. F10901079, must now be stricken because, subsequent to defendant’s March 18,
2014, sentencing in the current case, those prior convictions were reduced to

                                             4.
misdemeanors pursuant to section 1170.18, subdivision (f).3 Defendant says it must.
The Attorney General disagrees, as do we.
       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, whether by trial or plea, of a felony or felonies 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.

              “(g) If the application satisfies the criteria in subdivision (f), the
       court shall designate the felony offense or offenses as a misdemeanor.”
       In 2010 defendant was convicted, in case No. F10901079, of second degree
commercial burglary. (§§ 459, 460, subd. (b).) At the time, every form of second degree
burglary was a “wobbler,” meaning it could be a felony or a misdemeanor, depending on
the punishment imposed. (§ 461, former subd. 2; see § 17, subd. (a); People v. Williams
(2010) 49 Cal.4th 405, 461, fn. 6.) As defendant served a prison term for the offenses,
they were classified as felonies. (See § 17, subd. (b).)



3      It is clear the trial court and parties agreed defendant was entitled to have his
convictions in case No. F10901079 designated as misdemeanors. Although defendant
expressly asked the trial court to declare them to be misdemeanors, the trial court
apparently overlooked making a formal order to that effect. Defendant asks us to remedy
this oversight. The Attorney General agrees that if we find defendant’s request was for
reclassification (we do) and it is unclear whether an order was entered to that effect (none
was), then the 2010 convictions should be reduced to misdemeanors pursuant to
Proposition 47. So that the record is clear, we will direct the trial court to enter a formal
order designating defendant’s convictions in case No. F10901079 as misdemeanors.
       The question whether a defendant is eligible for resentencing on a section 667.5,
subdivision (b) enhancement after the underlying felony has been reclassified as a
misdemeanor pursuant to Proposition 47, is pending review in the California Supreme
Court. (E.g., People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016,
S233201; People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30,
2016, S232900.)


                                               5.
       Proposition 47 added section 459.5 to the Penal Code. Under subdivision (a) of
that statute, shoplifting is now “defined as entering a commercial establishment with
intent to commit larceny while that establishment is open during regular business hours,
where the value of the property that is taken or intended to be taken does not exceed”
$950, and it “shall be punished as a misdemeanor,” unless the offender has certain
specified prior convictions.4 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 when defendant committed the offenses for which he was
convicted in case No. F10901079, he could only have been convicted of misdemeanor
shoplifting under section 459.5, subdivision (a).
       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.”5
       Defendant argues his convictions in case No. F10901079 are now misdemeanors
“for all purposes” except certain firearm restrictions. (§ 1170.18, subd. (k).) We find
People v. Park (2013) 56 Cal.4th 782 (Park) instructive.
       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


4      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 or for
an offense requiring registration pursuant to subdivision (c) of Section 290 . . . .”
(§ 459.5, subd. (a).)
5      The specified statutes contain restrictions and prohibitions on firearm possession
for certain persons.


                                             6.
reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3).6 (Park,
supra, 56 Cal.4th at p. 787.)
       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.)
       In Park, the reduction 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 (cited by the trial court here) and People v. Banks
(1959) 53 Cal.2d 370 were contrary to its conclusion, 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, italics added.)
       The issue before us is not whether defendant’s convictions and prison commitment
in case No. F10901079 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 custody


6      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.”


                                                7.
on his current sentence. Rather, 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 convictions that gave rise to that enhancement
were reduced to misdemeanors 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.” 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
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,
disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216):
“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

                                              8.
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
initiative’s language so as to effectuate the electorate’s intent.’ [Citation.]” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.)
       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), in order “to ensure that prison
spending is focused on violent and serious offenses . . . .” (Id., § 2, p. 70.)7 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.)

7      The voter guide can be accessed at <http://www.sos.ca.gov/elections/
voting-resources/voter-information-guides/> [as of Feb. 2, 2017].

                                              9.
          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.) 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.)8

8       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

                                              10.
“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; 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 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 of 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 of 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,


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.”


                                            11.
470.) On appeal, the defendant claimed the enhancement was improper under Estrada,
because of a 1975 statutory amendment that made possession of marijuana a
misdemeanor. (Flores, supra, at p. 470.) The appellate court agreed, finding the
statutory language clear and unambiguous on the issue. (Id. at p. 472.) The court
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 in part because “[t]here was no suggestion there, as there is here, that the Legislature
intended retroactive application” (Flores, supra, at pp. 473, 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
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 can 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.

                                             12.
       Defendant served a prison term for the prior convictions at a time the offenses
were felonies. 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 convictions in case No. F10901079 at a time when
the offenses were felonies, and had his current sentence enhanced accordingly before the
convictions were reduced, he is not entitled to relief.
       This conclusion does not render surplusage or eviscerate 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.)




                                              13.
                                     DISPOSITION
       The order denying the motion to recall defendant’s sentence in Fresno County
Superior Court case No. F14901527 and to resentence defendant in that case is affirmed.
The trial court is directed to issue an order formally designating defendant’s convictions
for second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) in Fresno
County Superior Court case No. F10901079 as misdemeanor shoplifting (Pen. Code,
§ 459.5, subd. (a)).


                                                                _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 POOCHIGIAN, J.




                                            14.
