Filed 5/13/16 P. v. Tomblinson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C078861

                   Plaintiff and Respondent,                                      (Super. Ct. No. 11F1859)

         v.

TOMAS WILLIAM TOMBLINSON,

                   Defendant and Appellant.



         Defendant Tomas William Tomblinson was incarcerated for four convictions, and
sought resentencing under Proposition 47 (Pen. Code, § 1170.18)1 as to one—possession
of a controlled substance. The trial court reduced this conviction to a misdemeanor and
sentenced defendant on his remaining convictions to the same total prison term as his
prior sentence by increasing the sentence for one of his other convictions. At the
resentencing hearing, the court did not mention any previously imposed fees and fines.




1   Undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends: (1) the trial court erred because section 1170.18,
subdivision (e), bars a court from increasing the length of the term on any count above
what was ordered at the original sentencing hearing; (2) if we find that he forfeited this
first argument by failing to raise it in the trial court, his trial counsel provided ineffective
assistance; and (3) he is entitled to have the notations in the minute order and abstract of
judgment indicating that he owes restitution and parole revocation fines stricken because
those notations constitute clerical error. Assuming defendant’s first argument was not
forfeited, we nonetheless reject it because subdivision (e) is not susceptible to an
interpretation that precludes courts from making any upward adjustment to convictions
outside the scope of Proposition 47. Because we reach the merits of this claim, we need
not address defendant’s second argument regarding ineffective assistance of counsel. We
also decline to remove the restitution and parole revocation fines from the minute order
and abstract of judgment.
                                     I. BACKGROUND
       In 2011, in Shasta County Superior Court case No. 11F1859 (case one), as part of
a negotiated plea agreement, defendant was convicted of possession of a controlled
substance. (Health & Saf. Code, § 11377, subd. (a).) He also admitted to a 1996 arson
conviction as an enhancement. (§ 1170.12.)
       In 2013, in case No. 12F8026 (case two), defendant pleaded guilty to possession
of a firearm by a felon. (§ 29800, subd. (a).) He again admitted to the 1996 arson
conviction as an enhancement. (§ 1170.12.) He also admitted to violating his probation
in case one.
       In April 2014, in case No. 13F1725 (case three), defendant pleaded no contest to
failure to appear in case two. (§ 1320, subd. (b).)
       In July 2014, the court sentenced defendant to a total term of six years in prison:
The midterm of two years doubled to four years in case two; one-third the midterm of
eight months doubled to 16 months in case one; and one-third the midterm of eight

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months in case three. The court also imposed fees and fines, including, as relevant here,
restitution and parole revocation fines (§§ 1202.4, subd. (b), 1202.45) of $200 in case
one, $960 each in case two, and $280 in case three. The parole revocation fines were
stayed pending successful completion of parole.
       In August 2014, in case No. 14F4544 (case four), defendant pleaded no contest to
possession of illegal substances in jail. (§ 4573.6.) As a result, the trial court increased
defendant’s sentence by eight months for a total term of six years and eight months. The
court also imposed fees and fines, including, as relevant here, restitution and parole
revocation fines of $300 each, the latter of which the court stayed pending successful
completion of parole.
       In November 2014, the voters enacted Proposition 47, which requires
“misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession, unless the defendant has prior convictions for specified violent or
serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 3(3), p. 70.) The offenses that Proposition 47 reduced to misdemeanors include
possession of a controlled substance pursuant to Health and Safety Code section 11377.
(§ 1170.18, subd. (a).) Proposition 47 added section 1170.18 to the Penal Code, which
creates two separate procedures for individuals who were convicted of felonies that
would have been a misdemeanor under Proposition 47 based on whether the person is
still serving his or her sentence. A person who has completed his or her sentence may
file an application in the trial court to have the conviction designated as a misdemeanor.
(Id., subd. (f).) A person currently serving such a felony sentence “may petition for a
recall of sentence before the trial court . . . to request resentencing in accordance with
Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,
476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or
added by this act” (§ 1170.18, subd. (a)) and, unless the trial court determines that
resentencing would pose an unreasonable risk of danger to public safety, “the petitioner’s

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felony sentence shall be recalled and the petitioner resentenced to a misdemeanor
pursuant to” those sections (id., subd. (b)).
        On December 8, 2014, defendant filed a petition for resentencing pursuant to
section 1170.18, subdivision (a), requesting that the court reduce his conviction for
possession of a controlled substance in case one to a misdemeanor offense.
        On January 27, 2015, the court granted the petition for resentencing, and
sentenced defendant to time served in case one. The trial court then resentenced
defendant to a total of six years and eight months in prison for the remaining cases by
increasing the term for case two. Defendant was sentenced to the upper term of three
years doubled to six years in case two and one-third the midterm of eight months in case
three. The sentence in case four was also increased to an upper term of four years, to run
concurrently. The court made no mention of any fees or fines, and provided no reason
for waiving or reducing any previously imposed fees and fines. However, the minute
order for the hearing states that “all fines and fees remain as previously imposed and the
defendant shall pay all outstanding fines and fees,” and the abstract of judgment reflects
the previously imposed restitution and parole revocation fines in cases two, three and
four.
        Defendant timely appealed.
                                     II. DISCUSSION
A.      The Trial Court’s Resentencing of Remaining Cases
        On appeal, defendant contends the trial court erred in increasing other components
of his sentence in order to reach the same overall prison term after resentencing under
Proposition 47. His argument relies solely upon section 1170.18, subdivision (e), which
provides: “Under no circumstances may resentencing under this section result in the
imposition of a term longer than the original sentence.”
        “When we interpret an initiative, we apply the same principles governing statutory
construction. We first consider the initiative’s language, giving the words their ordinary

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meaning and construing this language in the context of the statute and initiative as a
whole. If the language is not ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute or rewrite it to conform to
some assumed intent not apparent from that language. If the language is ambiguous,
courts may consider ballot summaries and arguments in determining the voters’ intent
and understanding of a ballot measure.” (People v. Superior Court (Pearson) (2010) 48
Cal.4th 564, 571.)
       Defendant asserts that because the drafters used the words “term” and “sentence,”
these words must have separate meanings, and “term” must refer to the time imposed on
each count. From this assumption, he further posits that subdivision (e) “means that no
component can be longer than that set forth in the original sentence.” But even if we
accept defendant’s argument that “term” should be given a different meaning than
“sentence,” it would not prevent the outcome in this case because subdivision (e) would
only preclude a “term [for a particular count] longer than the original sentence,” which in
this case was six years and eight months.2 To avoid this practical problem with his
argument, defendant’s approach would effectively require us to read words into the
statute to create an entirely new rule: “Under no circumstances may resentencing under
this section result in the imposition of a term [for a particular count] longer than [that set
forth for the term in] the original sentence.” This leap in his argument has no root in the
language of the statute and the statute is not susceptible of being interpreted in that
manner. Thus, we need not consider the ballot materials cited by defendant or his




2  This interpretation would also result in less protection to defendants generally because
it would theoretically allow the term for each count to be increased to equal the total
amount of the original sentence, and for the total sentence to thereby increase. Thus,
though defendant argues that we should apply the rule of lenity to interpret “term” to
refer only to the sentence for a particular count, if it applied, the rule of lenity would
counsel against such an interpretation.

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argument that his interpretation would advance the voter’s general intent by creating
additional taxpayer savings and lowering sentences for nonserious, nonviolent crimes.
To adopt defendant’s construction of subdivision (e) would be inconsistent with our
Supreme Court’s instruction that “we may not add to the statute or rewrite it to conform
to some assumed intent not apparent from that language.” (People v. Superior Court
(Pearson), supra, 48 Cal.4th at p. 571.)3 Therefore, we reject his claim that section
1170.18, subdivision (e), prevented the trial court from imposing the same aggregate
sentence he had prior to being resented under Proposition 47.
B.     Minute Order and Abstract of Judgment
       Defendant also contends that because the trial court failed to mention the
restitution and parole revocation fines regarding cases two, three and four at his
resentencing hearing, and the People failed to object to that omission in the trial court, he
is entitled to have these fines removed from the minute order and the abstract of
judgment.
       A restitution fine and its accompanying parole revocation fine are mandatory
unless the reason for not imposing them is stated on the record. Section 1202.4,
subdivision (b) provides: “In every case where a person is convicted of a crime, the court
shall impose a separate and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record.” Section
1202.45, subdivision (a) provides: “In every case where a person is convicted of a crime



3  We also observe that defendant’s interpretation would create an unavoidable violation
of subdivision (e) in instances where a defendant was convicted of multiple crimes,
consecutive terms of imprisonment were imposed, and the crime reduced to a
misdemeanor had originally been designated as the principal term. In these
circumstances, the trial court would need to redesignate another offense as the principal,
necessarily increasing the term as to that crime because the defendant would have only
been serving one-third the middle term on the previously subordinate term.
(See § 1170.1, subd. (a).)

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and his or her sentence includes a period of parole, the court shall, at the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an
additional parole revocation restitution fine in the same amount as that imposed pursuant
to subdivision (b) of Section 1202.4.”
       Here, defendant does not challenge the original imposition of these fines with
respect to his unreduced crimes. Instead, he relies on the trial court’s subsequent silence
after he was resentenced under Proposition 47 and the rule that we may order the
correction of minutes and the abstract of judgment based on the clerical error of failing to
conform to the court’s oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181,
185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)
       He also cites People v. Tillman (2000) 22 Cal.4th 300 (Tillman), where the
Supreme Court refused to amend the judgment to impose restitution and parole
revocation fines under sections 1202.4 and 1202.45 after the trial court failed to state its
reasons for not imposing the fines on the record. The court held that the People could not
raise the trial court’s failure to state the required findings on the record for the first time
on appeal. (Tillman, supra, at p. 303.) Had the trial court failed to impose the challenged
fines at any point, the authorities cited by defendant would apply. But here the trial court
did not restate the revocation fines after resentencing under Proposition 47. This
omission is consistent with the scope of the trial court’s resentencing authority set forth in
section 1170.18, subdivision (b), which provides that “the petitioner’s felony sentence
shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections
11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a,
490.2, 496, or 666 of the Penal Code.” Defendant offers no authority to suggest that
restitution and parole revocation fines that were properly orally pronounced at one time
are deemed discharged by the trial court’s silence at a subsequent Proposition 47
resentencing hearing, or that in such a circumstance the minute order and the abstract of
judgment can be considered to conflict with the lack of a second oral pronouncement.

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Therefore, we reject defendant’s request to delete the restitution and parole revocation
fines from the minute order and the abstract of judgment.
                                   III. DISPOSITION
       The judgment is affirmed.



                                                       /S/

                                                 RENNER, J.



       We concur:



       /S/

       NICHOLSON, Acting P. J.



       /S/

       MURRAY, J.




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