Filed 7/13/16 P. v. Shields CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                                      E063966

v.                                                                     (Super.Ct.Nos. FSB031656,
                                                                        FSB07472 & SCR41932)
ROBERT CHRIS SHIELDS,
                                                                       OPINION
        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,

Judge. Affirmed in part; reversed in part.

        Richard Power, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marvin E.

Mizell and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.




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          Defendant Robert Chris Shields appeals from the denial of his petition under

Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, § 1170.18; unless

otherwise indicated, all additional statutory references are to the Penal Code.) Defendant

argues he is entitled to have his prior convictions for petty theft with a prior designated as

misdemeanors (former § 666), and that he is entitled to be resentenced in his current

felony case because his sentence includes two one-year prior prison term enhancements

based on those prior convictions. Defendant also argues his appointed attorney rendered

ineffective assistance of counsel at the hearing on the petition by not objecting to the

denial.

          We agree defendant’s prior convictions for petty theft with a prior are eligible to be

designated as misdemeanors and, therefore, we reverse the denial of his petition to the

extent it requested relief under section 1170.18, subdivisions (f) and (g). Because we

reverse the order to that extent, we need not address defendant’s related claim of

ineffective assistance of counsel. However, because we conclude designation of a prior

conviction as a misdemeanor does not operate retroactively to negate a prior prison term

sentence enhancement imposed on a felony that is not governed by Proposition 47, we

affirm the denial of the petition to the extent defendant requested resentencing in his

current felony case pursuant to section 1170.18, subdivisions (a) and (b).




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                                              I.

                             PROCEDURAL BACKGROUND

       The underlying facts of defendant’s offenses are not relevant to the issues in this

appeal. By order dated May 20, 2016, we have taken judicial notice of the record from

defendant’s appeal in case No. E033124. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

       In case No. FSB03165, in a second amended information, the People charged

defendant with one count of attempted second degree robbery (§§ 664, 211; count 1) and

six counts of second degree robbery (§ 211; counts 2-7). For purposes of sentencing, the

People alleged defendant personally used a deadly weapon during the commission of

counts 1 through 3 (§ 12022, subd. (b)(1)), he suffered prior serious or violent felony

convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and suffered prior serious

felony convictions (§ 667, subd. (a)(1)). The People also alleged defendant served five

prior prison terms (§ 667.5, subd. (b)), two of which were based on convictions for petty

theft with a prior in violation of former section 666.

       A jury found defendant guilty as charged on counts 1, 2, 3, 6 and 7, guilty of the

lesser included offense of misdemeanor petty theft on counts 4 and 5, and found true the

allegation of personal use of a firearm during the commission of counts 1 through 3.

Defendant admitted to serving five prior prison terms and to suffering a prior serious

felony conviction.

       The trial court sentenced defendant to a total term of 19 years in state prison. The

trial court deemed count 2 to be the principal count and sentenced defendant to the middle


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term of six years in state prison. With respect to the finding of personal use of a firearm

during the commission of count 2, the court sentenced defendant to the lower term of one

year to be served consecutively to the sentence on count 2. The trial court sentenced

defendant to two years for each of defendant’s convictions on counts 6 and 7, to run

consecutively with the sentence on count 2. For defendant’s prior serious felony

conviction, the trial court sentenced defendant to five years to be served consecutively

with the sentence on count 2. With respect to defendant’s five admitted prison priors, the

trial court sentenced defendant to one year for each; stayed execution of the one-year

sentence on one prison prior pursuant to section 654; struck imposition of the sentence on

another; and ordered the sentence on the remaining prison priors to run consecutively with

the sentence on count 2. The trial court sentenced defendant to two years on count 1 and

three years on count 3. Additionally, the court imposed a one-year term for each of the

findings that defendant personally used a firearm during the commission of counts 1 and

3, to be served concurrently with the sentence on count 2. Finally, on the People’s

motion, the trial court dismissed the convictions on counts 4 and 5 pursuant to section

1385.

        This court affirmed the judgment on direct appeal. (People v. Shields (Sept. 8,

2003, E033124) [nonpub. opn.].)

        After the passage of Proposition 47, defendant filed a form petition in the superior

court in his current case (case no. FSB031656). In the spaces provided for “felonies

affected by Proposition 47,” defendant listed his prior convictions for petty theft with a

prior in case Nos. SCR41932 and FSB07472. At the hearing on defendant’s petition, the


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trial court stated, “Court found these charges not eligible.” When asked if defendant’s

appointed attorney had any objection, counsel responded, “No objection.” The trial court

therefore denied the petition.

       In a handwritten letter filed with the trial court, defendant acknowledged the

offenses in his current case were not eligible for resentencing under Proposition 47, but

defendant explained he was refiling his petition and seeking an order designating as

misdemeanors his prior convictions for petty theft with a prior that were used to enhance

his current sentence. Defendant argued the trial court should not have denied his original

petition because he listed the case numbers for his priors.

       The superior court treated defendant’s letter as a notice of appeal.

                                             II.

                                       DISCUSSION

       Defendant contends his prior convictions for petty theft with a prior are eligible to

be designated as misdemeanors under section 1170.18 and, consequently, his current

sentence should be reduced by two years to remove the prior prison term enhancements

based on those prior convictions. In addition, defendant contends his appointed attorney

rendered ineffective assistance of counsel by failing to object when the trial court

indicated it would deny the petition. We agree defendant’s prior convictions for petty

theft with a prior are eligible to be designated as misdemeanors under Proposition 47, and

to that extent conclude the trial court erred by denying the petition. However, we also

conclude designation of defendant’s prior convictions as misdemeanors does not entitle

him to resentencing in his current case.


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       A.     Defendant Is Entitled to Have His Prior Convictions for Petty Theft with a

Prior Designated as Misdemeanors

        “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).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091

(Rivera).) “Proposition 47 also created a new resentencing provision: section 1170.18.

Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is

now a misdemeanor under Proposition 47, may petition for a recall of that sentence and

request resentencing in accordance with the statutes that were added or amended by

Proposition 47.” (Id. at p. 1092.) “Section 1170.18 also provides that persons who have

completed felony sentences for offenses that would now be misdemeanors under

Proposition 47 may file an application with the trial court to have their felony convictions

‘designated as misdemeanors.’ (§ 1170.18, subds. (f); see id., subds. (g)-(h).)” (Id. at

p. 1093.) “If the application satisfies the criteria in subdivision (f), the court shall

designate the felony offense as a misdemeanor.” (§ 1170.18, subd. (g).)

       “One of the nonserious crimes affected by Proposition 47 is petty theft with a prior

under former section 666. For most persons, the crime of petty theft with a prior, for

which the punishment is imprisonment in the county jail not exceeding one year or in the

state prison, is eliminated. As amended by the initiative, section 666 applies only if:

(1) the person is convicted of petty theft in the current case; (2) has served a term of

imprisonment for a prior conviction of ‘petty theft, grand theft, a conviction pursuant to


                                               6
subdivision (d) or (e) of Section 368 [(elder abuse)], auto theft under Section 10851 of the

Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496’; and

(3) ‘is required to register pursuant to the Sex Offender Registration Act, or . . . has a prior

violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of

paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to

subdivision (d) or (e) of Section 368.’ (§ 666, subd. (a), (b).)” (People v. Diaz (2015) 238

Cal.App.4th 1323, 1330.)

       The People do not dispute defendant’s prior convictions under former section 666

are eligible to be designated as misdemeanors under Proposition 47. Nothing in the record

indicates defendant’s criminal history would subject him to felony punishment under

amended section 666. However, the People argue defendant is not entitled to relief just

yet because he filed his petition in his current case instead of in the prior cases, and

because he did not file his petition in the court which entered the prior judgments. We

disagree.

       Although defendant’s initial petition listed his current case number in the caption,

it clearly listed the prior case numbers in the spaces provided for “felonies affected by

Proposition 47.” In addition, in defendant’s handwritten letter to the court—which he

characterized as a refiled petition—defendant made it clear he was seeking relief in his

prior cases. Nor did defendant file his petition in the wrong court. Defendant filed his

petition in the Superior Court of San Bernardino County, which is where defendant’s two

prior cases and his current case arose. To the extent the People contend defendant was

required to file his petition in the same department that entered the judgment in his prior


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cases, the trial court found defendant waived his right under section 1170.18,

subdivision (l), to have his petition heard by the sentencing judge. This case is therefore

dissimilar to People v. Marks (2015) 243 Cal.App.4th 331, where this court found a

petition filed in the Superior Court of Riverside County was defective because (1) it

sought reclassification of prior convictions entered in the Superior Court of Los Angeles

County and (2) the “petition bore only the current case number; it did not identify the

case numbers for his prior convictions.” (Id. at p. 335.)

       Defendant was entitled to have designated as misdemeanors his prior convictions

under former section 666 in case Nos. SCR41932 and FSB07472, so we conclude the trial

court erred by denying the petition. Because we reverse the trial court to the extent it

denied defendant’s request under section 1170.18, subdivision (f), we need not address

whether defendant’s appointed attorney rendered ineffective assistance of counsel when

he failed to object to the denial.

       B.     Defendant Is Not Entitled to Be Resentenced in His Current Case Based on

Designation of His Prior Convictions for Petty Theft with a Prior as Misdemeanors

       Defendant contends he is entitled to be resentenced in his current case because his

prior convictions for petty theft with a prior, which are eligible to be designated as

misdemeanors under Proposition 47, were used to enhance his sentence. The issue of

whether a defendant is entitled to be resentenced on a current case after the superior court

designates as a misdemeanor a prior conviction used to enhance the current sentence is

pending before the California Supreme Court. (People v. Valenzuela (2016) 244

Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v. Carrea (2016) 244


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Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Williams (2016) 245

Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Ruff (2016) 244

Cal.App.4th 935, review granted May 11, 2016, S233201.) We conclude defendant is not

entitled to be resentenced in his current case.

       Proposition 47 operates prospectively to new cases that must be charged as

misdemeanors. Retrospectively, Proposition 47 addresses prior felony wobbler

convictions for offenses that are now misdemeanors by creating two mechanisms for

relief: (1) reclassification and resentencing for defendants currently serving sentences for

eligible offenses (§ 1170.18, subds. (a), (b)), and (2) designation as misdemeanors for

defendants who have already completed their sentences for eligible offenses (§ 1170.18,

subds. (f), (g)). Proposition 47 did not, however, create a mechanism for obtaining

resentencing on a felony not affected by Proposition 47 simply because an offense

underlying one or more of its enhancements is so affected. We find this omission to be

significant because Proposition 47 expressly provides that the relief it creates is meant to

be exhaustive, not merely illustrative: “Nothing in this and related sections is intended to

diminish or abrogate the finality of judgments in any case not falling within the purview

of this act.” (§ 1170.18, subd. (n).)

       Defendant contends the resentencing provision under section 1170.18,

subdivisions (a) and (b), applies retroactively to prior convictions used to enhance the

sentence on non-Proposition 47 eligible felonies because, by its terms, a felony wobbler

that is reclassified or designated as a misdemeanor “shall be considered a misdemeanor

for all purposes.” (§ 1170.18, subd. (k).) We are not persuaded. Section 1170.18,


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subdivision (k), borrowed language from section 17, which provides that when a trial

court exercises its discretion to declare a felony wobbler to be a misdemeanor, the offense

“is a misdemeanor for all purposes . . . .” (§ 17, subd. (b)(3).) The courts have

consistently interpreted section 17 to apply prospectively only. “[W]hen a wobbler is

reduced to a misdemeanor [under section 17], the offense thereafter is deemed a

‘misdemeanor for all purposes . . . .’” (People v. Park (2013) 56 Cal.4th 782, 795, italics

added; see People v. Banks (1959) 53 Cal.2d 370, 381-382; People v. Pryor (1936) 17

Cal.App.2d 147, 152.) Put differently, redesignation under section 17 makes the wobbler

“a misdemeanor from that point on.” (People v. Feyrer (2010) 48 Cal.4th 426, 439, 443,

fn. 8; see People v. Marshall (1991) 227 Cal.App.3d 502, 504 [redesignated offense is

treated as a misdemeanor after redesignation]; Gebremicael v. California Com. on

Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1482-1483, 1487 [same]; People v.

Camarillo (2000) 84 Cal.App.4th 1386, 1390, 1394 [same]; People v. Rowland (1937) 19

Cal.App.2d 540, 541-542 [same].) Critically, however, this “misdemean[or] status [is]

not . . . given retroactive effect.” (People v. Moomey (2011) 194 Cal.App.4th 850, 857;

see Feyrer, at p. 439 [“the offense is [made] a misdemeanor from that point on, but not

retroactively” (italics added)]; People v. Bozigian (1969) 270 Cal.App.2d 373, 379 [felony

wobbler reduced to misdemeanor for sentencing “has no retroactive effect”].)

       “‘When legislation has been judicially construed and a subsequent statute on a

similar subject uses identical or substantially similar language, the usual presumption is

that the Legislature [or the voters] intended the same construction, unless a contrary intent

clearly appears.’ [Citation.]” (Rivera, supra, 233 Cal.App.4th at p. 1100; see People v.


                                             10
Medina (1995) 39 Cal.App.4th 643, 650.) We find nothing in the text, history, or

purposes of Proposition 47 that would lead us to conclude the voters intended section

1170.18, subdivision (k), to be interpreted differently than section 17, subdivision (b)(3).

Therefore, we conclude defendant is not entitled to be resentenced on ineligible offenses

in his current case based on redesignation of his prior convictions as misdemeanors.

       Finally, because we conclude defendant is not entitled to be resentenced in his

current case, we also conclude defendant’s appointed attorney did not render ineffective

assistance of counsel by failing to interpose an objection to the denial of defendant’s

request for resentencing. (People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to

raise a meritless objection is not ineffective assistance of counsel.”].)

                                              III.

                                       DISPOSITION

       The order denying defendant’s petition to designate as misdemeanors his

convictions for petty theft with a prior in case Nos. SCR41932 and FSB07472 is reversed.

On remand, the trial court shall grant the petition. (§ 1170.18, subds. (f), (g).)

       The order denying resentencing in case No. FSB031656 is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 McKINSTER
                                                                                           J.
We concur:

RAMIREZ
                        P. J.

MILLER
                           J.


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