Filed 8/9/16 P. v. Stout CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079411

         v.                                                                           (Super. Ct. No.
                                                                                    MCYKCRBF111664)
DOUGLAS JEREMIAH STOUT,

                   Defendant and Appellant.


         Defendant Douglas Jeremiah Stout appeals from the trial court’s order denying his
Penal Code section 1170.181 petition for resentencing on a prior prison term. He
contends that when the prior felony conviction that forms the basis of the prison prior is
reduced to a misdemeanor, the enhancement is then invalid. We conclude section
1170.18 does not apply retroactively to invalidate a previously imposed enhancement
when the conviction that supported the enhancement is later reduced to a misdemeanor.
We affirm the trial court’s order.




1        Undesignated statutory references are to the Penal Code.

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                                     BACKGROUND2
       In 2012, following a jury trial, defendant was convicted of felony evading an
officer (Veh. Code, § 2800.2, subd. (a)) and unlawfully driving or taking a vehicle
(Veh. Code, § 10851, subd. (a)) along with five prior prison term enhancements (§ 667.5,
subd. (b)). One of the prior prison term enhancements was based on a 2006 conviction
for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in
Shasta County. Defendant was sentenced to serve an eight-year four-month prison term.
       Defendant subsequently filed a section 1170.18 petition in Shasta County Superior
Court to designate the possession prior a misdemeanor, which the court granted. He then
filed a section 1170.18 petition in this case, asking the court to resentence him on the
prior prison term that was based on the 2006 possession conviction. The trial court
denied the petition.
                                       DISCUSSION
       Defendant contends he is entitled to resentencing on the prior prison term
enhancement based on the possession of a controlled substance because that possession
conviction was designated a misdemeanor by the Shasta County Superior Court pursuant
to Proposition 47.3 We disagree.
       Proposition 47, the Safe Neighborhoods and Schools Act (the Act) that was
enacted three days before the second sentencing hearing, requires “misdemeanors instead
of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior
convictions for specified violent or serious crimes.” (Voter Information Guide, Gen.



2      We dispense with the facts of defendant’s crimes as they are unnecessary to
resolve this appeal.
3     This issue is currently before the California Supreme Court. (See, e.g., People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900;
People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011.)

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Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subds. (3), (4) & (5) p. 70.) Among the
affected crimes are the possession of a controlled substance offenses that are now
misdemeanors barring certain exceptions not relevant here. (See Health & Saf. Code,
§§ 11350, 11357, 11377.) Since the prior prison term enhancement requires that
defendant be convicted of a felony and have served a prison term for that conviction
(§ 667.5, subd. (b)), this raises the question of whether a prior prison term enhancement
based on what is now a misdemeanor conviction survives the Act.
       We begin by noting section 1170.18 does not apply retroactively. Subdivision (k)
was interpreted in the context of felony jurisdiction over criminal appeals in People v.
Rivera (2015) 233 Cal.App.4th 1085 (Rivera). The Court of Appeal in Rivera addressed
whether the Act deprived it of jurisdiction in a case where a felony conviction was later
designated a misdemeanor under the Act or where the defendant was resentenced as a
misdemeanor under the Act. (Rivera, at p. 1089.) Rivera found subdivision (k), which
parallels the language from section 17 regarding the reduction of wobblers to
misdemeanors,4 should be interpreted in the same way as being prospective, from that
point on, and not retroactive. (Rivera, at p. 1100; see also People v. Moomey (2011)
194 Cal.App.4th 850, 857 [rejecting assertion that assisting a second degree burglary
after the fact does not establish the necessary element of the commission of an underlying
felony because the offense is a wobbler: “Even if the perpetrator was subsequently
convicted and given a misdemeanor sentence, the misdemeanant status would not be
given retroactive effect”].) The court in Rivera accordingly concluded the felony status
of an offense charged as a felony did not change after the Act was passed, thereby


4       Section 17, subdivision (b), states in pertinent 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 under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances . . . .”

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conferring jurisdiction on the Court of Appeal.5 (Rivera, at pp. 1094-1095, 1099-1101.)
We see no reason to depart from Rivera. Although Rivera addressed subdivision (k) in a
different context, its analysis of subdivision (k) is equally relevant here.
       Defendant relies primarily on People v. Park (2013) 56 Cal.4th 782 (Park) and
People v. Flores (1979) 92 Cal.App.3d 461 (Flores). As we explain, both cases are
inapposite. In Park, the Supreme Court held that a felony conviction properly reduced to
a misdemeanor under section 17, subdivision (b), could not subsequently be used to
support an enhancement under section 667, subdivision (a). (Park, at p. 798.) Applying
the reduction to eliminate an enhancement would be a retroactive application, which is
impermissible under both section 17 and the Act. Although Park concerns a different
situation, it is instructive because it recognized the distinction between retroactive and
prospective application. “There is no dispute that, under the rule in [prior California
Supreme Court] cases, [the] defendant would be subject to the section 667[, subdivision]
(a) enhancement had he [or she] committed and been convicted of the present crimes
before the court reduced the earlier offense to a misdemeanor.” (Park, at p. 802.)
Retroactive versus prospective application was also invoked by the Supreme Court in
distinguishing cases cited by the Attorney General. “None of the cases relied upon
by the Attorney General involves the situation in which the trial court has affirmatively
exercised its discretion under section 17[, subdivision] (b) to reduce a wobbler to a
misdemeanor before the defendant committed and was adjudged guilty of a subsequent



5       Rivera also noted the absence of any evidence the voters wanted to go beyond
directly reducing future and past punishment for convictions under the six included
offenses. (Rivera, at p. 1100 [“Nothing in the text of Proposition 47 or the ballot
materials for Proposition 47--including the uncodified portions of the measure, the
official title and summary, the analysis by the legislative analyst, or the arguments in
favor or against Proposition 47--contains any indication that Proposition 47 or the
language of section 1170.18, subdivision (k) was intended to change preexisting rules
regarding appellate jurisdiction”].)

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serious felony offense.” (Park, at pp. 799-800.) In the case before us, defendant
committed his current felonies before his prior conviction could be reduced to a
misdemeanor. Applying that reduction to eliminate the corresponding prior prison
term enhancement would therefore be an impermissible retroactive application of
the Act.
       The defendant in Flores was sentenced to prison following his conviction of
selling heroin (Health & Saf. Code, § 11352), and his state prison sentence for that crime
was enhanced by one year under section 667.5, subdivision (b). (Flores, supra,
92 Cal.App.3d at pp. 464, 470.) The enhancement was based on a prior felony conviction
of possession of marijuana under Health and Safety Code section 11357. (Flores, at
p. 470.) That statute had since been amended in 1975 to make possession of marijuana a
misdemeanor. (Id. at p. 471.)
       The Flores court noted that in 1976, the Legislature enacted Health and Safety
Code section 11361.5, subdivision (b), which “authorize[d] the superior court, on
petition, to order the destruction of all records of arrests and convictions for possession
of marijuana, held by any court or state or local agency and occurring prior to January 1,
1976.” (Flores, supra, 92 Cal.App.3d at p. 471.) Also in 1976, Health and Safety Code
section 11361.7 “was added to provide in pertinent part that: ‘(a) Any record subject to
destruction . . . pursuant to Section 11361.5, or more than two years of age, or a record
of a conviction for an offense specified in subdivision (a) or (b) of Section 11361.5
which became final more than two years previously, shall not be considered to be
accurate, relevant, timely, or complete for any purposes by any agency or person . . . .
(b) No public agency shall alter, amend, assess, condition, deny, limit, postpone, qualify,
revoke, surcharge, or suspend any certificate, franchise, incident, interest, license,
opportunity, permit, privilege, right, or title of any person because of an arrest or
conviction for an offense specified in subdivision (a) or (b) of Section 11361.5 . . . on or



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after the date the records . . . are required to be destroyed . . . or two years from the date
of such conviction . . . with respect to . . . convictions occurring prior to January 1,
1976.’ ” (Flores, at pp. 471-472.) Based on these amendments, the court concluded
that “the Legislature intended to prohibit the use of the specified records for the purpose
of imposing any collateral sanctions,” such as the prior prison term enhancement. (Id. at
p. 472.)
       Flores is inapposite because there is no similar declaration of legislative intent for
full retroactivity either in the Act generally or section 1170.18 in particular. If the Act’s
drafters wanted to invalidate prior prison term allegations because the underlying felony
was now a misdemeanor, they could have included legislative language such as that
discussed in Flores. They did not.
       We conclude section 1170.18 does not retroactively invalidate a previously
imposed enhancement when the conviction that supported the enhancement is later
reduced to a misdemeanor.
                                        DISPOSITION
       The judgment (order denying defendant’s petition) is affirmed.




                                                                 /s/
                                                   HOCH, J.


We concur:


        /s/
MAURO, Acting P. J.


       /s/
MURRAY, J.


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