Filed 11/18/16
                 CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION ONE


THE PEOPLE,                             B268475

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. A645112)
       v.

DAVID EARL WALKER,

       Defendant and Appellant.



      APPEAL from an order of the Superior Court of Los
Angeles County. Peter Espinoza, Judge. Affirmed.
      APPEAL from an order of the Superior Court of Los
Angeles County, Latonya Hadnot-Prioleau, Commissioner.
Appeal dismissed.
      Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Mary Sanchez and Esther P. Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
       David Earl Walker appeals from the orders denying his
petition for resentencing/application to redesignate his 1988 and
1989 felony convictions for possession of a controlled substance as
misdemeanors pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act (Proposition 47 or the Act). (Pen.
Code,1 § 1170.18, subds. (a)–(i).) The trial court denied the
petition on the basis of its finding that appellant is ineligible for
Proposition 47 relief due to a disqualifying 1992 conviction for
first degree murder.2 Appellant contends he was eligible for
Proposition 47 relief because his murder conviction occurred after
the drug possession convictions. He thus claims the trial court
erroneously denied his petition to reclassify his felony convictions
as misdemeanors. We find no merit to appellant’s contention,
and affirm.
                 PROCEDURAL BACKGROUND
       Appellant pleaded guilty to two counts of possession of a
controlled substance in violation of Health and Safety Code
section 11350, subdivision (a) in separate cases in 1988 (Super.
Ct. L.A. County, No. A645112) and 1989 (Super. Ct. L.A. County,
No. A480785). In 1992, a jury convicted appellant of first degree
murder in violation of Penal Code section 187, subdivision (a)
(Super. Ct. Orange County, No. CR40606). The court imposed a
sentence of 25 years to life for the murder conviction, and a

      1   Undesignated statutory references are to the Penal Code.
      2 The trial court’s written order incorrectly states that
appellant was convicted of burglary in violation of section 459.
At the hearing on appellant’s application, however, the trial court
denied relief because of appellant’s “super strike” conviction for
first degree murder.




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consecutive term of 2 years 8 months for the two drug possession
convictions.
      On October 19, 2015, appellant filed a petition requesting
that his felony sentences in Nos. A480785 and A645112 be
recalled, and that those convictions be resentenced as
misdemeanors pursuant to section 1170.18, subdivisions (a)
through (e). The trial court (Judge Espinoza) denied the petition
on the ground that appellant had a disqualifying prior conviction
under section 667, subdivision (e)(2)(C)(iv).3
                          DISCUSSION
      California voters approved Proposition 47 on November 4,
2014. (People v. Stylz (2016) 2 Cal.App.5th 530, 533; People v.
Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced the


      3 Appellant filed a notice of appeal from this order on
November 19, 2015 (Appeal I). Thereafter, on December 1, 2015,
appellant filed a second application to have his felony conviction
in No. A645112 redesignated as a misdemeanor conviction
pursuant to section 1170.18, subdivisions (f) through (i). The
trial court (Commissioner Hadnot-Prioleau) also denied relief on
the basis of appellant’s prior disqualifying conviction under
section 667, subdivision (e)(2)(C)(iv). Appellant filed a second
notice of appeal on December 8, 2015 (Appeal II).
       Respondent contends both appeals must be dismissed
because the trial court did not have jurisdiction to consider
appellant’s second application while Appeal I was pending.
(People v. Scarbrough (2015) 240 Cal.App.4th 916, 929.) While
the order denying the second application was a legal nullity from
which no appeal could be taken, it had no effect on Appeal I.
(People v. Alanis (2008) 158 Cal.App.4th 1467, 1472–1473.)
Accordingly, we will proceed on the merits of Appeal I and
dismiss Appeal II.




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penalties for certain drug- and theft-related offenses, and
reclassified those felonies as misdemeanors. (People v.
Zamarripa (2016) 247 Cal.App.4th 1179, 1182 (Zamarripa);
Rivera, at p. 1091.) The Act also added section 1170.18 to the
Penal Code to allow certain convicted felons to petition the court
to have their felony convictions designated as misdemeanors and
their penalties reduced. But subdivision (i) specifies that “[t]he
provisions of [section 1170.18] shall not apply to persons who
have one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667.” That is, if a person has a prior conviction for one
of the so-called “super strikes,” which includes murder, he or she
is expressly disqualified from Proposition 47 relief.
        “Matters of statutory interpretation are questions of law
subject to de novo review. [Citation.] ‘ “ ‘In construing a statute,
our task is to determine the Legislature’s intent and purpose for
the enactment. [Citation.] We look first to the plain meaning of
the statutory language, giving the words their usual and ordinary
meaning. [Citation.] If there is no ambiguity in the statutory
language, its plain meaning controls; we presume the Legislature
meant what it said. [Citation.] . . .’ [Citations.] We examine the
statutory language in the context in which it appears, and adopt
the construction that best harmonizes the statute internally and
with related statutes. [Citations.]” [Citation.] In addition, we
may examine the statute’s legislative history. [Citation.]’
[Citation.] We apply the same basic principles of statutory
construction when interpreting a voter initiative.” (Zamarripa,
supra, 247 Cal.App.4th at p. 1183.)
        The term “prior conviction” in section 1170.18, subdivision
(i) is somewhat ambiguous in this context, raising the question of




                                    4
whether an applicant is disqualified from Proposition 47 relief for
a super strike conviction suffered any time before the application
is made, or if only a prior super strike conviction that occurred
before the felony conviction that is the subject of the Proposition
47 petition will disqualify an applicant from relief. To resolve
this ambiguity, we turn to the indicia of the voters’ intent found
in the text, analysis and arguments presented in the official
election materials. (Robert L. v. Superior Court (2003) 30 Cal.4th
894, 901.)
       Our examination of the voters’ intent expressed in the
Official Voter Information Guide for the November 4, 2014
general election concerning Proposition 47 compels the conclusion
that “prior conviction,” as used in section 1170.18, subdivision (i),
refers to a conviction suffered any time before the court’s ruling
on an application to have a felony conviction reclassified as a
misdemeanor.
       As the Legislative Analyst explained in the comments on
Proposition 47: “This measure allows offenders currently serving
felony sentences for the above crimes to apply to have their felony
sentences reduced to misdemeanor sentences. In addition,
certain offenders who have already completed a sentence for a
felony that the measure changes could apply to the court to have
their felony conviction changed to a misdemeanor. However, no
offender who has committed a specified severe crime[, including
murder,] could be resentenced or have their conviction changed.”
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by
the Legis. Analyst of Prop. 47, p. 36, italics added.) The
Legislative Analyst’s comments are not necessarily conclusive on
the meaning of the language of a voter initiative when other
statements in the ballot pamphlet contradict those comments.




                                     5
(San Francisco Taxpayers Assn. v. Board of Supervisors (1992)
2 Cal.4th 571, 580.) However, where, as here, the election
materials contain no such contradictions, the Legislative
Analyst’s comment all but “eliminates doubt” as to the correct
interpretation of a ballot initiative. (See People v. Superior Court
(Henkel) (2002) 98 Cal.App.4th 78, 82.)
       In addition to the Legislative Analyst’s comments, the
rebuttal to the argument against Proposition 47 also makes clear
that a person who has suffered a murder conviction cannot seek
relief under section 1170.18 regardless of when that conviction
occurred: “Proposition 47 does not require automatic release of
anyone. There is no automatic release. It includes strict
protections to protect public safety and make sure rapists,
murderers, molesters and the most dangerous criminals cannot
benefit.” (Voter Information Guide, supra, rebuttal to argument
against Prop. 47, p. 39.)
       Finally, the voters’ intent to exclude convicted murderers
from the benefits of Proposition 47 is expressed in the Act itself.
Section 2 provides in pertinent part: “This act ensures that
sentences for people convicted of dangerous crimes like rape,
murder, and child molestation are not changed.” (Voter
Information Guide, supra, text of Prop. 47, § 2, p. 70.) Section 3
similarly states: “In enacting this act, it is the purpose and
intent of the people of the State of California to: [¶] (1) Ensure
that people convicted of murder, rape, and child molestation will
not benefit from this act.” (Id., § 3, subd. (1), p. 70.)
       While the Act mandates a liberal construction “to effectuate
its purposes” (Voter Information Guide, supra, text of Prop. 47,
§ 18, p. 74), in our view that requires “a reading of its ambiguities
to assure that only persons whose criminal record indicates a




                                     6
reasonable balance between the seriousness of their crimes and
the relief provided by the section should fall within its terms.
And we cannot see that timing plays any role in striking that
balance.” (People v. Montgomery (2016) 247 Cal.App.4th 1385,
1391–1392 (Montgomery).) Indeed, “[n]othing in section 1170.18,
subdivision (i) limits its application to time periods prior to the
commission of the offense for which reclassification is sought.
The plain language of the statute suggests a general
disqualification regardless of when a defendant was convicted of
the disqualifying offense.” (Zamarripa, supra, 247 Cal.App.4th
at p. 1184.)
       Relying on People v. Spiller (2016) 2 Cal.App.5th 1014,
1022 (Spiller), appellant contends that “prior conviction” must be
interpreted to mean that only a super strike conviction suffered
before the conviction for which redesignation is sought
disqualifies an applicant from relief under Proposition 47. We
disagree. Spiller considered the meaning of “prior conviction” in
the context of Proposition 36.4 The question was whether a
conviction for a super strike suffered after the conviction
resulting in the inmate’s third strike sentence, but before the
trial court’s ruling on the petition for resentencing, constituted a
“prior conviction” within the meaning of Proposition 36. The
court held that because defendant’s conviction for attempted
murder (a super strike) had occurred after the conviction

      4  Proposition 36, known as the Three Strikes Reform Act of
2012, allows an inmate currently serving an indeterminate term
of life under the Three Strikes law for a nonserious, nonviolent
conviction to petition the court to be resentenced as a second
strike offender. (§ 1170.126, subd. (e).)




                                    7
resulting in his indeterminate life sentence under the Three
Strikes law, it was not a disqualifying prior conviction under
Proposition 36. In so holding, the court noted, “section 1170.126
is written so that statutory eligibility determinations are made as
of the date the defendant was sentenced to his or her
indeterminate third strike life sentence. The current conviction
is the conviction the inmate is currently serving a third strike
indeterminate life sentence for, and prior convictions are those
which occurred prior to the inmate’s current conviction.” (Spiller,
at p. 1022.)
       Although Propositions 36 and 47 share some similar
language, the two ballot initiatives reflect profound differences in
purpose and intent. The voters enacted Proposition 47 “to ensure
that prison spending is focused on violent and serious offenses, to
maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and
support programs.” (Voter Information Guide, supra, text of
Prop. 47, § 2, p. 70.) The Act achieves these goals by classifying
specific nonserious, nonviolent crimes as misdemeanors rather
than felonies, while expressly disqualifying offenders with super
strike convictions from benefiting from its provisions.
       Proposition 36, on the other hand, was aimed at “restor[ing]
the original intent of California’s Three Strikes law.” (Voter
Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1,
p. 105.) And as stated in section 667, subdivision (b), the Three
Strikes law itself is fundamentally a sentencing scheme intended
to impose progressively harsher sentences on recidivist offenders
who have previously committed serious or violent felonies: “It is
the intent of the Legislature in enacting subdivisions (b) to (i),
inclusive, to ensure longer prison sentences and greater




                                    8
punishment for those who commit a felony and have been
previously convicted of one or more serious and/or violent felony
offenses.” (§ 667, subd. (b).)
       Noting that “[t]here is a presumption that terms must be
interpreted to be consistent with the statutory scheme of which
they are a part,” Spiller kept its analysis within the context of
Proposition 36 and consistent with the provisions of the Three
Strikes scheme as a whole. (Spiller, supra, 2 Cal.App.5th at
p. 1023.) We must likewise confine our interpretation of “prior
conviction” to the context of Proposition 47 and the voters’ intent
in enacting it. That means we must adopt the interpretation
most consistent with the intent of the voters, and refrain from
falling back on understandings of the term from other contexts
which conflict with the voters’ intent in enacting this law. As the
Montgomery court observed: “We are so used to regarding ‘prior
convictions’ as those that preceded a current case or conviction
that our instinctive reaction is to read this section in the same
way. But when analyzed in terms of accomplishing what the
framers and voters intended, a distinction between convictions
suffered before the conviction being considered for redesignation
and those suffered contemporaneously or afterward makes no
sense.” (Montgomery, supra, 247 Cal.App.4th at pp. 1391–1392.)
       We therefore conclude that within the context of
Proposition 47, a prior disqualifying conviction is a super strike
conviction suffered any time before the court’s ruling on an
application to have a felony conviction reclassified as a
misdemeanor.




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                        DISPOSITION
     The appeal filed December 8, 2015 is dismissed. In the
appeal filed November 19, 2015, the order denying the petition
under Penal Code section 1170.18 is affirmed.



                                         LUI, J.
We concur:



     ROTHSCHILD, P. J.



     CHANEY, J.




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