Filed 7/6/16 P. v. Sarabia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042247
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1106099)

         v.

FELIPE SARABIA,

         Defendant and Appellant.


         In 2011, defendant Felipe Sarabia pleaded guilty to possession of cocaine. (Health
& Saf. Code, § 11350, subd. (a).) The trial court subsequently placed defendant on
formal probation. At a probation revocation hearing in 2015, defendant admitted
violating the terms of his probation, but he argued his conviction had been reduced to a
misdemeanor as a matter of law by the enactment of Proposition 47. Defendant objected
to the requirement that he file a petition to reduce his conviction to a misdemeanor under
Proposition 47’s resentencing provisions. (See Pen. Code, § 1170.18.)1
         After the trial court overruled defendant’s objection, defendant petitioned for
resentencing, whereupon the court granted the petition and reduced his conviction to a
misdemeanor. On appeal, defendant contends the trial court erred by requiring him to file
a petition to reduce his conviction to a misdemeanor. He argues that Proposition 47



         1
             Subsequent undesignated statutory references are to the Penal Code.
retroactively reduced his offense to a misdemeanor under In re May (1976)
62 Cal.App.3d 165 (May), and In re Estrada (1965) 63 Cal.2d 740 (Estrada).
       We will conclude the trial court properly required the filing of a petition before it
resentenced defendant because a defendant on probation is “currently serving a sentence”
under Proposition 47. Accordingly, we will affirm the judgment.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense2
       On April 23, 2011, around 7:27 p.m., police saw defendant parked illegally in a
Honda sedan with illegally tinted front windows. Upon contacting defendant, the police
observed him exhibiting signs of intoxication. A records check revealed his driver’s
license was expired. Police found a bindle of cocaine in defendant’s sock. In a search of
the car, police found a plastic bag containing a substance commonly used to cut cocaine.
   B. Procedural Background
       The prosecution charged defendant by felony complaint with three counts: Count
One—Possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); Count Two—
Using or being under the influence of a controlled substance (Health & Saf. Code,
§ 11550, subd. (a)); and Count Three—Driving without a valid license (Veh. Code,
§ 12500, subd. (a)).
       In June 2011, defendant pleaded guilty to all three counts. The trial court deferred
entry of judgment. In May 2012, after a failed drug test, the court terminated deferred
entry of judgment, suspended imposition of sentence, and granted a two-year term of
formal probation under Proposition 36. In January 2014, the court terminated Proposition
36 probation and reinstated a three-year term of formal probation.
       In April 2015, the probation officer, alleging multiple failed drug tests, petitioned
for modification of the terms of probation. The trial court held a probation revocation

       2
         Our recitation of the facts is based on those set forth in the probation officer’s
petition for modification.
                                              2
hearing on April 9. Defendant presented a petition for resentencing under Proposition
47, but he argued that his conviction for possession of cocaine had been reduced to a
misdemeanor by “operation of law.” Accordingly, he objected to the requirement that he
file a petition to reduce his conviction to a misdemeanor. He argued this requirement
would violate his constitutional rights under the Second Amendment because a petitioner
resentenced to a misdemeanor is prohibited from possessing firearms under section
1170.18, subdivision (k). After the court overruled defendant’s objection, he admitted
violating the terms of his probation.
       The trial court ordered that probation remained revoked, and it sentenced
defendant to 213 days in county jail with 213 days of credit for time served. The court
then granted the petition for resentencing, recalled the sentence, and reduced defendant’s
conviction to a misdemeanor.
                                        II. DISCUSSION
       Defendant contends he was not “currently serving a sentence” under the
resentencing provisions of Proposition 47. He argues the passage of Proposition 47
retroactively reduced his conviction for possession of methamphetamine to a
misdemeanor under May, supra, and Estrada, supra. Accordingly, he contends the trial
court erred by requiring him to file a petition for resentencing to reduce his conviction to
a misdemeanor. The Attorney General contends the trial court did not err because
Proposition 47 does not operate retroactively in the absence of a petition. We conclude
the trial court properly required defendant to file a petition for resentencing because a
probationer is “currently serving a sentence” within the meaning of section 1170.18,
subdivision (a).
   A. Background
       In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act (the Act), which reduced certain drug- and theft-related offenses to
misdemeanors. As relevant here, the Act amended Health and Safety Code section 11350
                                              3
to make possession of a controlled substance a misdemeanor except for certain classes of
defendants not at issue here. Proposition 47 also created a new resentencing scheme for
persons serving felony sentences for offenses that were made misdemeanors by the Act.
(§ 1170.18, subd. (a).) Under subdivision (a) of section 1170.18, a person “currently
serving a sentence” for a felony conviction may petition for recall if the person would
have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the
offense.

   B. Proposition 47 Does Not Apply Retroactively to Sentenced Defendants
       As defendant acknowledges, other courts of appeal have held that Proposition 47
does not retroactively reduce a defendant’s felony conviction to a misdemeanor in the
absence of a petition for resentencing. (People v. Diaz (2015) 238 Cal.App.4th 1323;
People v. Shabazz (2015) 237 Cal.App.4th 303.) Those courts rejected the same
retroactivity argument defendant makes here based on Estrada, supra, and we agree with
the reasoning set forth in those opinions.
       Defendant attempts to distinguish the aforementioned cases on the ground that
they involved defendants who had been sentenced. Defendant argues that, by contrast, he
had not yet been sentenced when Proposition 47 was enacted in November 2014 because
he was on probation at that time. For this premise, he relies on May, supra, a case in
which final judgment was not entered where proceedings were suspended and probation
was granted. But that opinion was published decades before the enactment of either
Proposition 36 or Proposition 47. We think its logic bears little relevance to the issue
before us, which is largely one of statutory construction based on the language of section
1170.18.
       The First District Court of Appeal recently considered this issue in People v. Davis
(2016) 246 Cal.App.4th 127 (Davis). In that case, the defendant argued that the phrase
“currently serving a sentence” only includes defendants who are serving a term of


                                             4
confinement and does not include probationers. The Attorney General disagreed, arguing
that the word “sentence” includes any criminal sanction, including probation. (Id. at
p. 139.) The Davis court held that “persons on probation for a felony conviction are
‘currently serving a sentence’ ” within the meaning of section 1170.18, subdivision (a).
(Id. at p. 132; see also People v. Tidwell (2016) 246 Cal.App.4th 212, 218 [an order
granting probation and suspending imposition of sentence is a form of sentencing];
People v. Garcia (2016) 245 Cal.App.4th 555, 559 [resentencing provision of Proposition
47 applies to all those with felony dispositions, including those placed on probation].)
       We agree with the analysis in Davis, and we will apply its holding here. Because
defendant, as a probationer, is currently serving a sentence within the meaning of section
1170.18, he was required to adhere to the petitioning procedures set forth in that section
if he wished to have his conviction reduced to a misdemeanor. We therefore conclude
the trial court did not err by requiring him to file a petition for resentencing to reduce his
conviction to a misdemeanor.
   C. The Resentencing Requirement Does Not Violate Equal Protection
       Defendant contends that, by requiring him to petition for resentencing, section
1170.18 violates his right to equal protection of the law. He argues that the statutory
scheme treats him more harshly than a defendant facing an identical charge who had yet
to be sentenced when Proposition 47 was enacted. He contends this disparate treatment
violates equal protection under either strict scrutiny or a rational basis level of review.
       We will apply the rational basis level of review. (See People v. Wilkinson (2004)
33 Cal.4th 821 [rejecting strict scrutiny standard in analyzing a suspect criminal
classification]; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 [where a
disputed statutory disparity implicates no suspect class or fundamental right, equal
protection is violated only where there is no rational relationship between the disparity of
treatment and some legitimate governmental purpose].) Under this standard, we perceive
a rational basis for the challenged classification. The trial court’s determination of
                                               5
whether a defendant qualifies for misdemeanor sentencing may depend on factual issues
such as the existence of disqualifying prior convictions and the petitioner’s level of
dangerousness. The electorate could rationally decide that, for those sentenced before the
enactment of Proposition 47, the defendant should be required to petition for recall of
sentence through the trial court, which can then make the required factual determinations.
       For these reasons, we conclude defendant’s claim is without merit.
                                     III.   DISPOSITION
       The judgment is affirmed.




                                             6
                    Márquez, J.




WE CONCUR:




 Rushing, P.J.




 Grover, J.




People v. Sarabia
No. H042247
