Filed 2/2/16 P. v. Murray CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                   DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                            D067227

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. Nos. SCD254927,
                                                                       SCD257566, SCD258562)
DANIEL FRANCIS MURRAY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Charles R. Gill, Judge. Affirmed.

         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for

Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Defendant Daniel Francis Murray appeals from a judgment of conviction after he

pled guilty to one count of selling or furnishing methamphetamine and one count of

possessing methamphetamine, and after admitting to violating probation in another case

in which he had previously pled guilty to one count of possessing methamphetamine.

Murray contends that under Proposition 47, he is entitled to automatic, nondiscretionary

resentencing for his two convictions for possession of methamphetamine, in violation of

Health and Safety Code section 11377, subdivision (a). We conclude that Murray is not

entitled to automatic resentencing. Rather, he must file a petition for recall of sentence

after his judgment is final and allow the trial court to determine whether he is eligible

for misdemeanor resentencing under Proposition 47. We therefore affirm the judgment.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On March 28, 2014, Murray was charged in case No. SCD254927 (Case 1) with

one count of possession of methamphetamine, in violation of Health and Safety Code

section 11377, subdivision (a), which was a felony at that time. The information also

alleged that Murray had suffered one prior conviction for a serious or violent felony,

pursuant to Penal Code sections 667, subdivision (b), 1170.12, and 668, and that he had

served two prior prison terms, pursuant to Penal Code sections 667.5, subdivision (b)

and 668.



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       Murray pled guilty to the felony count, and the trial court dismissed the

enhancement allegations. The trial court granted Murray formal probation on the

condition that Murray serve 180 days in county jail.

       In a separate case, case No. SCD257566 (Case 2), Murray was charged with one

count of selling or furnishing a controlled substance, methamphetamine, in violation of

Health and Safety Code section 11379, subdivision (a). The information also alleged

that Murray had suffered one prior conviction for a serious or violent felony, pursuant to

Penal Code sections 667, subdivision (b), 1170.12, and 668, and that he had served two

prior prison terms, pursuant to Penal Code sections 667.5, subdivision (b) and 668.

       On September 4, 2014, after Murray failed to report to a probation officer within

72 hours of his release from custody and failed to report his arrest within seven days,

the Probation Department filed a report alleging that Murray violated his probation in

Case 1. That same day, the trial court summarily revoked probation in Case 1.

       Approximately a week after his probation was revoked with respect to Case 1,

Murray was again arrested for possessing a controlled substance, in violation of Health

and Safety Code section 11377, subdivision (a), and for committing a felony while out

on bail, in violation of Penal Code section 12022.1. A few days later, Murray was

charged in case No. SCD258562 (Case 3) with possession of a controlled substance,

methamphetamine, in violation of Health and Safety Code section 11377, subdivision

(a). The information also alleged that Murray had served two prior prison sentences

within the meaning of Penal Code sections 667.5, subdivision (b) and 668, and that he



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had a strike prior, pursuant to Penal Code sections 667, subdivision (b), 1170.12 and

668.

       In late September 2014, Murray pled guilty to the charged count in Case 2 and

the charged count in Case 3. The trial court struck the prior prison and conviction

enhancement allegations. Murray admitted to having violated probation in Case 1.

       Pursuant to the plea bargain, the trial court sentenced Murray to a stipulated

sentence of three years in state prison on the count to which he pled guilty in Case 2.

The trial court also sentenced Murray to 16 months in state prison with respect to Case

1, and 16 months in state prison with respect to Case 3, and ordered that both sentences

run concurrently with the sentence in Case 2.

       Murray filed a timely notice of appeal with respect to all three cases.

                                             III.

                                       DISCUSSION

       Murray contends that this court should reduce his felony convictions in Cases 1

and 3, for violations of Health and Safety Code section 11377, subdivision (a), to

misdemeanors pursuant to the amendments effectuated by Proposition 47. Murray

asserts that this court should reduce his convictions on those counts to misdemeanors

under the authority of In re Estrada (1965) 63 Cal.2d 740 (Estrada). According to

Murray, because his case is not yet final given the pendency of his appeal, he is entitled

to the benefit of a change in the law that occurs prior to finality.

       "On November 4, 2014, the voters enacted Proposition 47, the Safe

Neighborhoods and Schools Act [(Proposition 47)] . . . ." (People v. Rivera (2015) 233

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Cal.App.4th 1085, 1089 (Rivera).) "Proposition 47 makes certain drug- and theft-

related offenses misdemeanors, unless the offenses were committed by certain ineligible

defendants. These offenses had previously been designated as either felonies or

wobblers (crimes that can be punished as either felonies or misdemeanors)." (Rivera,

supra, at p. 1091.)

       Proposition 47 also included a new statutory provision whereby an individual

already serving a felony sentence for the reclassified offenses may petition for a recall

of his or her sentence. (See Pen. Code, § 1170.18, subd. (a).) Specifically, Penal Code

section 1170.18 provides the statutory remedy for "[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." (Id., subd. (a).) Under this provision,

such a person "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." (Ibid.)

       Penal Code section 1170.18, subdivision (b) specifies the procedure for a trial

court to follow "[u]pon receiving a petition under subdivision (a)." If the trial court

finds that "the petitioner satisfies the criteria in subdivision (a), the petitioner's felony

sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . , unless

the court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety." (Ibid.) An "unreasonable risk of danger

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to public safety" is defined in section 1170.18, subdivision (c) of the Penal Code as "an

unreasonable risk that the petitioner will commit" one of the "super strike" offenses

listed in Penal Code section 667, subdivision (e)(2)(C)(iv). "In exercising its discretion,

the court may consider all of the following: [¶] (1) The petitioner's criminal conviction

history, including the type of crimes committed, the extent of injury to victims, the

length of prior prison commitments, and the remoteness of the crimes. [¶] (2) The

petitioner's disciplinary record and record of rehabilitation while incarcerated. [¶]

(3) Any other evidence the court, within its discretion, determines to be relevant in

deciding whether a new sentence would result in an unreasonable risk of danger to

public safety." (Pen. Code, § 1170.18, subd. (b).)

        According to Murray, because the judgment in his case was not final at the time

Proposition 47 became effective, pursuant to Estrada, he is entitled to have this court

reduce his conviction to a misdemeanor under amended section 11377, and he need not

utilize the resentencing procedure established in Penal Code section 1170.18. We

disagree.

       "The rule in Estrada . . . is not implicated where the Legislature clearly signals

its intent to make the amendment prospective, by the inclusion of either an express

saving clause or its equivalent." (People v. Nasalga (1996) 12 Cal.4th 784, 793.) In the

absence of an express saving clause, one will be implied if the Legislature or electorate

has " 'demonstrate[d] its intention with sufficient clarity that a reviewing court can

discern and effectuate it.' " (Ibid.)



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       For example, the procedure set forth in section 1170.126, subdivision (b), which

permits a prisoner to seek resentencing under the Three Strikes Reform Act (§§ 667,

subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), has been held to constitute "the functional

equivalent of a saving clause." (People v. Yearwood (2013) 213 Cal.App.4th 161, 172.)

Like the resentencing petition process created under Penal Code section 1170.126,

subdivision (b), the resentencing petition process contained in section 1170.18,

subdivision (a) expressly applies to persons who are "currently serving a sentence" for a

crime that would have been a misdemeanor after the passage of Proposition 47. By

setting forth specific procedures as to those persons who were "currently serving a

sentence" at the time the initiative took effect (Pen. Code, § 1170.18, subd. (a)), the

electorate effectively and clearly "demonstrate[d] its intention" (In re Pedro T. (1994) 8

Cal.4th 1041, 1049) that such persons follow these specified procedures before being

resentenced. We therefore conclude that Penal Code section 1170.18 operates as the

functional equivalent of a savings clause.

       Murray is thus not entitled to have this court automatically reduce his convictions

under Health and Safety Code section 11377 to misdemeanors. Rather, Murray must

utilize the procedure specified in Penal Code section 1170.18, which requires that he

file a petition for recall of sentence in the trial court after the judgment in this case

becomes final. The trial court shall then employ the procedures outlined in Penal Code

section 1170.18, subdivision (b), to determine whether Murray should be resentenced to

misdemeanor convictions for his two Health and Safety Code section 11377 offenses.



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                                      IV.

                                  DISPOSITION

      The judgment is affirmed.



                                                AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.




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