Filed 12/15/16

                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E064243

v.                                                 (Super.Ct.No. SWF1402787)

JOHN WILLIAM EVANS,                                OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Judge Elaine M. Kiefer,

Judge. Affirmed with directions.

        Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Marvin

E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       Defendant John William Evans appeals his 2015 sentence, arguing it improperly

includes a one-year enhancement under Penal Code section 667.5, subdivision (b)

(Section 667.5(b)) for an offense the trial court designated a misdemeanor shortly after

imposing the enhancement. The People argue the sentence is lawful because the offense

was a felony at the time the court imposed the enhancement and Proposition 47 does not

apply retroactively to enhancements. While we agree Proposition 47 does not apply

retroactively to enhancements, we conclude that, under the California Supreme Court’s

holding in In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada), Proposition 47 applies to

Section 667.5(b) enhancements in judgments that have not yet become final. Because the

offense on which Evans’s Section 667.5(b) enhancement was based is no longer a felony

and his judgment is not yet final, Evans falls into the narrow class of offenders who are

entitled to relief under Estrada. We therefore strike the enhancement from his sentence.

                                              I

                           PROCEDURAL BACKGROUND

       On February 9, 2015, a jury found Evans guilty of battery of a cohabitant (Pen.

Code, § 243, subd. (e)(1)), abuse of a dependent adult (Pen. Code, § 368, subd. (c)),

assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and

violation of a no contact order (Pen. Code, § 166, subd. (c)(1)). Evans admitted having a

prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1); 1170.12, subd. (c)(1)) and

three prison priors (Pen. Code, § 667.5, subd. (b)). The prison prior at issue here is for a




                                              2
2007 felony possession of a controlled substance conviction (Health & Saf. Code, § 1377,

subd. (a)).

       On April 17, 2015, the trial court granted Evans’s request to continue sentencing

to May 15, 2015. In advance of the continued sentencing hearing, Evans asked the court

to strike his 2007 prison prior enhancement. The People opposed his request, arguing

Proposition 47 does not apply to Section 667.5(b) prior prison term enhancements

because such enhancements are meant to punish recidivists, regardless of the

classification of the underlying offense at the time of sentencing. In the alternative, the

People argued that even if Proposition 47 does apply to Section 667.5(b) enhancements,

it does not apply to them retroactively. They pointed out Evans’s 2007 drug conviction

currently remained a felony because the hearing on his Proposition 47 reclassification

petition was not scheduled to take place until May 29, 2015, several days after his

sentencing hearing.

       At the May 15, 2015 sentencing hearing, the trial court decided to continue the

hearing again because “Mr. Evans has currently a petition to have that [2007 drug

conviction] reduced pursuant to Prop. 47” and the court needed time to research

Proposition 47’s application to enhancements. The continued hearing took place on June

26, 2015. At the start of the hearing, the court noted it was unable to locate any

information on the outcome of Evans’s reclassification petition. Defense counsel added,

“those [Proposition 47] cases just have been getting continued, and they haven’t been

getting resolved, so my guess is . . . there’s going to be another status hearing in about a


                                              3
month.” The court refused to grant another continuance because sentencing had already

been continued “several [times in] . . . the last six months.” Defense counsel again

requested the court strike the prison prior for his 2007 conviction on the ground the

underlying offense now qualified as a misdemeanor under Proposition 47. The court

thought the issue was “unclear,” but ultimately agreed with the People that Evans’s

“status as a recidivist” warranted imposition of the enhancement. The court imposed a

total term of nine years in prison, which included a one-year prison prior enhancement

for the 2007 conviction. Less than a month after Evans filed his notice of appeal

challenging his sentence, the trial court granted his Proposition 47 petition and designated

his 2007 conviction a misdemeanor.1

                                             II

                                      DISCUSSION

       Penal Code section 1170.18, subdivision (k) (Section 1170.18(k)) directs that any

felony reclassified a misdemeanor under Proposition 47 “shall be considered a

misdemeanor for all purposes.” (Italics added.) Evans argues the phrase “for all

purposes” includes for purposes of relief from Section 667.5(b) enhancements. The

People agree Section 1170.18(k) provides relief from enhancements, but they argue the

relief should be available only if the reclassification occurs before imposition of the

enhancement. They argue Evans seeks an impermissibly retroactive application of

       1We granted Evans’s request to take judicial notice of a September 9, 2015
minute order showing the trial court granted his Proposition 47 petition.


                                              4
Section 1170.18(k) because reclassification of his 2007 drug offense occurred after the

court imposed the enhancement in his 2015 sentence. Evans contends he is entitled to the

benefits of Section 1170.18(k) because his 2015 sentence is not yet final.

       This case therefore asks us to decide whether the benefits of Section 1170.18(k)

apply to non-final judgments. Before we can answer this question, however, we must

first determine whether section 1170.182 provides relief from enhancements at all.

Although the People concede Section 1170.18(k) provides prospective relief from

enhancements, we must undertake an independent review of Proposition 47, applying the

same principles that govern statutory construction. (Kavanaugh v. West Sonoma County

Union High School Dist. (2003) 29 Cal.4th 911, 916; People v. Rizo (2000) 22 Cal.4th

681, 685.)

       A.      Section 1170.18(k) Applies Prospectively to Enhancements

       Proposition 47 changed portions of the Health and Safety and Penal Codes to

reduce certain drug possession and theft-related offenses from felonies or wobblers to

misdemeanors, unless the offenses were committed by certain ineligible offenders. The

initiative also created a petitioning procedure designed to allow offenders who had

previously been convicted of reclassified offenses to have their convictions designated

misdemeanors and their sentences reduced. (Pen. Code, § 1170.18, subds. (a), (b), (f), &

(g); People v. Jones (2016) 1 Cal.App.5th 221, 228 (Jones).) The plain language of the

initiative made those changes retroactive, that is Proposition 47 “allows offenders to seek

       2   Undesignated statutory citations refer to the Penal Code.

                                              5
redesignation of and resentencing on felony convictions” even if they “have become

final.” (Jones, at p. 228.)

       The plain language of Proposition 47 also explicitly anticipates misdemeanor

reclassification will affect the collateral consequences of felony convictions. Among

other things, suffering a felony conviction may result in the offender losing the right to

vote (Elec. Code, § 2101), losing the right to own or possess a firearm (Pen. Code,

§ 29800, subd. (a)(1)), being required to provide biological samples to law enforcement

for identification purposes (Pen. Code, § 296, subd. (a)(1)), and, if the offender is

convicted of a felony in the future, losing probation as a sentencing option (Pen. Code,

§ 1203, subd. (e)) and being exposed to sentence enhancements (Pen. Code, § 667.5,

subd. (b)). To ensure qualified offenders gain relief from those collateral consequences,

Section 1170.18(k) directs “[a]ny felony conviction that is recalled and resentenced under

subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered

a misdemeanor for all purposes, except that such resentencing shall not permit that

person to own, possess, or have in his or her custody or control any firearm.” (Italics

added.)

       Section 1170.18(k)’s “for all purposes” language is broad, indicating the voters

intended it to apply to all collateral consequences except firearm possession. (Hisel v.

County of Los Angeles (1987) 193 Cal.App.3d 969, 974 [statement of a “specific

exception[] implies the exclusion of others”].) In People v. Abdallah (2016) 246

Cal.App.4th 736 (Abdallah), our colleagues in Division Seven of the Second Appellate


                                              6
District concluded Section 1170.18(k) reflects the voters’ clear intention that—with the

exception of firearm possession—reclassified misdemeanors be treated like any other

misdemeanor offense, including for purposes of enhancements under section 667.5,

subdivision (a). (Abdallah, at p. 746 [“Once the trial court recalled Abdallah’s 2011

felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k),

reclassified that conviction as a misdemeanor ‘for all purposes’ ”].) The Abdallah court

held the defendant’s one-year enhancement was improper because the trial court imposed

it after the underlying felony had been reclassified. (Ibid. [holding trial court erred by

imposing enhancement because “Abdallah was not a person who had committed ‘an

offense which result[ed] in a felony conviction’ ”].) We agree with Abdallah’s

interpretation that Section 1170.18(k) prohibits a court from imposing an enhancement

based on an offense that has already been reclassified a misdemeanor.

       This interpretation finds support in section 17, subdivision (b) (Section 17(b)),

which contains similar language directing a crime designated a misdemeanor “is a

misdemeanor for all purposes.” Section 17(b) addresses when a crime that can be

punished as a felony or a misdemeanor (a wobbler) must be treated as a misdemeanor.

The statute directs that an offense “is a misdemeanor for all purposes” when, among

other circumstances, “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.” (§ 17,

subd. (b)(3).) The California Supreme Court has interpreted that language to mean once


                                              7
a court designates a wobbler offense a misdemeanor, “the offense thereafter is deemed a

‘misdemeanor for all purposes,’ except when the Legislature [or electorate] has

specifically directed otherwise.” (People v. Park (2013) 56 Cal.4th 782, 795 (Park).) In

Park, the trial court enhanced a sentence by five years because the offender had suffered

a prior serious felony conviction. However, the court presiding over the prior case had

reduced the felony conviction to a misdemeanor under Section 17(b) before the defendant

had committed the present offense. (Park, at p. 787.) The Supreme Court held “when

the court in the prior proceeding properly exercised its discretion by reducing the [felony]

conviction to a misdemeanor, that offense no longer qualified as a prior serious felony . . .

and could not be used . . . to enhance defendant’s sentence.” (Ibid.)

       We reach the same conclusion here. (People v. Cornett (2012) 53 Cal.4th 1261,

1269, fn. 6 [recognizing “the rule of statutory construction that identical language

appearing in separate statutory provisions should receive the same interpretation when

the statutes cover the same or analogous subject matter”].) Imposing a one-year

enhancement based on a prison prior under Section 667.5(b) requires proof defendant (1)

was convicted of a felony, (2) was imprisoned as a result, (3) completed the term of

imprisonment, and (4) did not remain free for five years of prison custody and

committing a new offense that resulted in a felony conviction. (In re Preston (2009) 176

Cal.App.4th 1109, 1115.) Once the trial court granted Evans’s petition, “section 1170.18,

subdivision (k) reclassified that conviction as a misdemeanor ‘for all purposes’ ” and he




                                              8
no longer satisfied the first element of Section 667.5(b). (Abdallah, supra, 246

Cal.App.4th at p. 746.)

       B.     Section 1170.18(k) Applies to Non-Final Enhancements

       The People argue our conclusion applies Section 1170.18(k) retroactively because

Evans’s 2007 offense was not reclassified until after the trial court imposed the

enhancement in his 2015 sentence. We recently held in Jones that Proposition 47 does

not allow “the courts to strike prison prior enhancements imposed prior to Proposition 47

based on prior convictions designated as misdemeanors after judgment and sentence have

become final.” (Jones, supra, 1 Cal.App.5th at p. 229.) However, Evans does not ask us

to depart from the holding in Jones. Evans asks us to recognize only that petitioners

whose sentences are not yet final when their underlying felony is reclassified may receive

the benefits of Section 1170.18(k). The California Supreme Court’s holding in Estrada

supports Evans’s argument.

       Under Estrada, when an amendatory statute mitigates punishment, contains no

saving clause, and “becomes effective prior to the date the judgment of conviction

becomes final,” then “[that statute] and not the old statute in effect when the prohibited

act was committed, applies.” (Estrada, supra, 63 Cal.2d at pp. 744, 748.) Under this

long-settled precedent, the “key date” in deciding whether a defendant receives the

benefit of the statutory change is “the date of final judgment.” (Id. at p. 744.) “A

judgment becomes final when the availability of an appeal and the time for filing a




                                             9
petition for certiorari [with the United States Supreme Court] have expired.” (People v.

Smith (2015) 234 Cal.App.4th 1460, 1465.)

       The Estrada rule is based on legislative intent. “When the Legislature amends a

statute so as to lessen the punishment it has obviously expressly determined that its

former penalty was too severe and that a lighter punishment is proper as punishment for

the commission of the prohibited act. It is an inevitable inference that the Legislature

must have intended that the new statute imposing the new lighter penalty now deemed to

be sufficient should apply to every case to which it constitutionally could apply. The

amendatory act imposing the lighter punishment can be applied constitutionally to acts

committed before its passage provided the judgment convicting the defendant of the act is

not final.” (Estrada, supra, 63 Cal.2d at p. 745, italics added.) The Supreme Court noted

the Legislature could indicate a desire that a defendant be punished under the law in

existence at the time the offense was committed by enacting a saving clause spelling out

such an intent, but held “[i]f there is no saving clause [the defendant] can and should be

punished under the new law.” (Ibid.)

       The same principles guide our interpretation of successful ballot initiatives. (Park,

supra, 56 Cal.4th at p. 796.) As we discussed in part II.A., ante, Section 1170.18(k)

shows the voters specifically anticipated reclassification would have collateral effects and

directs that a reclassified offense “shall be considered a misdemeanor for all purposes.”

(Italics added.) This language is broad and not limited by a saving clause that would

indicate the voters intended offenders should continue being punished under the old law.


                                            10
The plain language of the statute therefore indicates the voters intended offenders should

be able to avoid punishment for reclassified offenses imposed through Section 667.5(b)

enhancements, so long as they are not subject to final judgment. Consistent with this

understanding, the statute specifies it does not apply to convictions or sentences that are

subject to final judgment. (§ 1170.18, subd. (n) [“Nothing in this and related sections is

intended to diminish or abrogate the finality of judgments in any case not falling within

the purview of this act”].) We therefore conclude the electorate, in passing Proposition

47, determined the penalties for drug possession crimes like Evans’s were too severe and

intended to reduce those penalties in every case to which the proposition constitutionally

could apply. As a result, offenders may challenge prison prior enhancements based on

reclassified convictions so long as the enhanced sentence is not subject to a final

judgment.

       Here, Evans’s 2015 sentence had not yet been imposed when he sought to take

advantage of Proposition 47 reclassification and reduce his 2007 felony drug conviction

to a misdemeanor. He asked the trial court to wait to sentence him until after the hearing

on his reclassification petition, but the court did not do so. By the time the trial court

granted his petition, his sentence had already been imposed but it was not yet final

because it was on appeal to this court. Thus, Proposition 47 provided a means for Evans

to mitigate punishment, and he successfully took advantage of that procedure before his




                                              11
sentence became final.3 Evans’s request that we correct his sentence on appeal therefore

does not seek to apply Proposition 47 in a retroactive manner not approved by the voters.

       At oral argument, the People argued the Park decision supports the contrary view

based on dicta indicating a defendant whose prior felony sentence the court reduced to a

misdemeanor under Section 17(b) “would be subject to the . . . enhancement had he

committed and been convicted of the present crimes before the court reduced the earlier

offense to a misdemeanor.” (See Park, supra, 56 Cal.4th at p. 802.) The People contend

this language shows Evans is not entitled to relief because he committed and was

convicted of his 2015 offenses before the court reclassified his 2007 offense. Park does

not support such a conclusion.

       As we discussed above, the Estrada rule applies to Section 1170.18(k) because

Proposition 47 expresses the electorate’s determination that we have punished a class of

offenders too harshly. That determination implies the benefits of Proposition 47 “should

apply to every case to which it constitutionally could apply,” including to pending cases

in which the judgment is not yet final. (Estrada, supra, 63 Cal.2d at p. 745.)




       3  The People contend Estrada’s holding does not apply here because the sentence
for Evans’s 2007 felony drug offense has long been final. The People misunderstand the
finality aspect of the Estrada analysis. The key date is when the sentence including the
enhancement becomes final (i.e., Evans’s 2015 sentence), not when the sentence for the
offense supporting the enhancement became final.


                                            12
       Section 17(b) is different. As the Park court explained at length, Section 17(b)

recognizes incarceration in state prison may not be appropriate for some defendants—not

a class of offenders—who commit wobbler offenses. (Park, supra, 56 Cal.4th at p. 790.)

To address this concern, the provision invests the trial court with discretion to designate

wobbler offenses misdemeanors if doing so would be more likely to rehabilitate the

particular offender. (Ibid.) Thus, Section 17(b) is not a provision expressing the

electorate or Legislature’s determination “that its former penalty was too severe and that

a lighter punishment is proper.” (Estrada, supra, 63 Cal.2d at p. 745.) Rather, Section

17(b) intentionally and explicitly leaves that judgment up to the trial court. The Estrada

rule therefore does not apply to Section 17(b) and the Supreme Court’s discussion of that

provision in Park could not implicate, much less answer, the question we face here.

       The People’s argument is wrong for the additional reason that Park does not

address retroactivity at all. As discussed above, Park involved the prospective

consequence of the trial court’s decision to designate the defendant’s wobbler offense a

misdemeanor. (Park, supra, 56 Cal.4th at p. 787 [“when the court in the prior

proceeding properly exercised its discretion by reducing the [felony] conviction to a

misdemeanor, that offense . . . could not be used [thereafter] . . . to enhance defendant’s

sentence”].) We therefore conclude the People’s reliance on Park to avoid the

application of the Estrada rule is doubly misguided.4 (See People v. Jenkins (2010) 50

       4 We are aware some courts have accepted the People’s argument that Park
precludes applying Section 1170.18(k) to enhancements in non-final sentences. In our
view, these cases are wrongly decided because, as explained, Park did not involve
                                                                  [footnote continued on next page]

                                             13
Cal.4th 616, 684 [“ ‘The holding of a decision is limited by the facts of the case being

decided, notwithstanding the use of overly broad language by the court in stating the

issue before it or its holding or in its reasoning’ ”].)

        Finally, the People argue imposition of the enhancement remains appropriate

despite reclassification on the ground the enhancement is meant to punish Evans for his

recidivism, not for the underlying offense. This argument contravenes the language of

Section 667.5(b), which makes suffering a felony conviction a necessary requirement for

imposing the enhancement. Contrary to the People’s view, Section 667.5(b) is not

intended to punish any and all recidivists. It is reserved only for those who have

committed a felony, served a prison term, and reoffended. (§ 667.5, subd. (b)

[authorizing enhancement only if the offender has a felony conviction and has served a

term of imprisonment as a result]; In re Preston, supra, 176 Cal.App.4th at p. 1115.)

With the passage of Proposition 47, the voters have determined Evans’s 2007 drug

offense never should have been a felony. One consequence of this policy judgment is

that Evans no longer is the type of recidivist Section 667.5(b) was enacted to punish.




[footnote continued from previous page]
application of an ameliorative amendment to the Penal Code under the Estrada rule and
did not involve retroactive application of Section 17(b). In any event, these cases have
been taken up for review by the Supreme Court and depublished.

                                               14
                                             III

                                      DISPOSITION

       We strike the one-year prison prior term based on Evans’s 2007 conviction and

direct the trial court to issue an amended abstract of judgment reflecting a modified

sentence for a total of eight years in prison and to forward a certified copy of the

amended abstract of judgment to the Department of Corrections and Rehabilitation. In all

other respects, the judgment is affirmed.

       CERTIFIED FOR PUBLICATION


                                                                SLOUGH
                                                                                        J.

We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.




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