Filed 2/10/16; pub. order 3/8/16 (see end of opn.)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                   H042396
                                                             (Monterey County
         Plaintiff and Respondent,                            Super. Ct. No. SS120938B)

         v.

RAFAELA GARCIA,

         Defendant and Appellant.


         Defendant Rafaela Garcia brought this appeal to challenge an order denying her
petition for resentencing under Penal Code section 1170.18 (section 1170.18). She
contends that the court failed to appreciate that she was eligible to have her conviction of
possession of methamphetamine reduced to a misdemeanor, pursuant to Proposition 47.
The People concede the error, and we agree that the court erred in refusing to consider
defendant’s petition.
                                                     Background
         Defendant was charged by complaint with felony possession of methamphetamine
on May 17, 2012, a violation of Health and Safety Code section 11377, subdivision (a).
On June 21, 2013, she appeared for sentencing.1 The court suspended imposition of
sentence and placed defendant on felony probation for three years, conditioned on service
of 60 days in jail and other terms.




         1
             The circumstances of defendant’s conviction are not in the record on appeal.
       On March 9, 2015, defendant filed a petition for resentencing under section
1170.18, subdivision (a), asserting her eligibility for reduction of her conviction to a
misdemeanor. The district attorney opposed the petition, asserting defendant’s
ineligibility for treatment under the statute because she “has not been sentenced.” After
hearing argument on the matter, the trial court decided to “stay with the traditional legal
definition of ‘sentenced’ ” and denied the petition. This timely appealed followed.
                                         Discussion
       Section 1170.18 is derived from Proposition 47, the Safe Neighborhoods and
Schools Act, passed by voter initiative at the November 4, 2014 election. Subdivision (a)
of the statute provides: “A person currently serving a sentence for a conviction, whether
by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor
under the act that added this section (“this act”) had this act been in effect at the time of
the offense may petition for a recall of sentence before the trial court that entered the
judgment of conviction in his or her case to request resentencing in accordance with
Sections 11350, 11357, or 11377 of the Health and Safety Code . . . as those sections
have been amended or added by this act.” If the petitioner meets the criteria in
subdivision (a) of the statute, the felony sentence “shall be recalled and the petitioner
resentenced to a misdemeanor” pursuant to the statutes under which he or she was
convicted, as those sections were amended or added by the Act, “unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.18, subd. (b)); cf. T.W. v. Superior Court (2015) 236
Cal.App.4th 646, 650; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092-1093.)
       The parties agree that in passing Proposition 47 the voters intended to embrace
probationers within the reach of the resentencing provisions of section 1170.18. To
interpret the statutory language otherwise would, in their view, lead to absurd
consequences. We find merit in this position. As the People acknowledge, there is
nothing in either the ballot materials or the statutory language that appears to limit the

                                               2
phrase “currently serving a sentence for a conviction” to those serving a term of
imprisonment. Defendant points out that granting probation is in some contexts a
“sentencing choice” (see, e.g., Cal. Rules of Court, rule 4.405(6) [“ ‘Sentence choice’
means the selection of any disposition of the case that does not amount to a dismissal,
acquittal, or grant of a new trial”]). (Cf. People v. Howard (1997) 16 Cal.4th 1081, 1084
[referring to court’s authority “at time of sentencing” either to suspend imposition of
sentence or impose sentence and suspend its execution]; In re DeLong (2001) 93
Cal.App.4th 562, 571 [“an order granting probation and suspending imposition of
sentence is a form of sentencing”].) Both parties observe that the language of another
voter initiative, Proposition 36, the Substance Abuse and Crime Prevention Act of 2000,
used the language “sentenced to probation.” (See People v. Mendoza (2003) 106
Cal.App.4th 1030, 1034 [quoting ballot pamphlet to distinguish conviction from sentence
and referring to “sentence of probation”].)
       The ballot materials for Proposition 47 likewise indicate that the voters regarded
probation as one of the options within a sentencing procedure;2 the legislative analysis
refers to offenders who are “sentenced” to supervision by a county probation officer
while indicating that both jail time for eligible offenders and the caseloads of probation
officers would be reduced by including felony probation as a disposition eligible for
resentencing under section 1170.18. (See People v. Shabazz (2015) 237 Cal.App.4th 303,
310 [discussing Proposition 47 mechanism for resentencing after being “sentenced or


       2
          “ ‘In interpreting a voter initiative . . . “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]. . . . 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.]” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901, quoting Horwich v. Superior Court
(1999) 21 Cal.4th 272, 276 and People v. Birkett (1999) 21 Cal.4th 226, 231.)

                                              3
placed on probation”].) The Legislative Analyst discussed these options under the
heading of “Misdemeanor Sentencing” and generally noted the fiscal consequences of
“the resentencing of individuals currently serving sentences for felonies that are changed
to misdemeanors.” (Italics added.) Nothing in the text of the initiative, the legislative
analysis, or the arguments for and against it indicate an intent to distinguish between a
prison sentence and felony probation, or between a grant of probation after suspending
imposition of sentence and an order imposing sentence but suspending its execution.3
The statute itself allows the recall of a “felony sentence” and allows the petitioner to
request “resentencing” in Health and Safety Code section 11377 cases, without
segregating those serving prison sentences from those serving probation terms.
(§ 1170.18, subds. (a), (b).) And as defendant points out, Proposition 47 was intended to
reach those with “nonserious, nonviolent crimes like . . . drug possession,” which would
encompass many who were granted probation. (Proposition 47, § 3.) To deprive those
defendants of the benefit of the reduced penalty for their offenses would create an
incongruity the voters would not have either anticipated or approved.
       We accordingly adopt the parties’ proffered liberal construction of the statute to
apply to all those with felony dispositions, including those placed on probation who
otherwise meet the conditions specified in the statutory scheme. Because she met the
criteria for eligibility under section 1170.18, defendant was entitled to consideration of
her petition for resentencing.
                                        Disposition
       The order is reversed, and the matter is remanded for consideration of defendant’s
petition under section 1170.18.




       3
        Neither party suggests any significance in the latter distinction for purposes of
Proposition 47 treatment.

                                              4
                                  _________________________________
                                  ELIA, ACTING P.J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




The People v. Garcia
H042396
Filed 3/8/16
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H042396
                                                   (Monterey County
        Plaintiff and Respondent,                   Super. Ct. No. SS120938B)

        v.                                          ORDER GRANTING REQUEST
                                                    FOR PUBLICATION
RAFAELA GARCIA,

        Defendant and Appellant.



THE COURT:
        Pursuant to California Rules of Court, rule 8.1105(b), the request for publication is
hereby granted. It is ordered that the opinion in this matter, filed on February 10, 2016,
shall be certified for publication.

                                      _________________________________________
                                      ELIA, Acting P.J.


                                      __________________________________________
                                      BAMATTRE-MANOUKIAN, J.


                                      ___________________________________________
                                      MIHARA, J.
Trial Court:                            Monterey County Superior Court
                                        Superior Court No.: SS120938B


Trial Judge:                            Honorable Pamela L. Butler


Counsel for Plaintiff and Respondent:   Kamala D. Harris
THE PEOPLE                              Attorney General

                                        Gerald A. Engler
                                        Chief Assistant Attorney General

                                        Jeffrey M. Laurence
                                        Senior Assistant Attorney General

                                        Catherine A. Rivlin
                                        Supervising Deputy Attorney General

                                        Karen Z. Bovarnick
                                        Deputy Attorney General


Counsel for Defendant and Appellant:    William M. Robinson
RAFAELA GARCIA                          Sixth District Appellate Program




The People v. Garcia
H042396
