Filed 3/21/16 P. v. Keeney CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B263283
                                                                            (Super. Ct. No. F486996)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

BENJAMIN DAVID KEENEY,

     Defendant and Appellant.


                   Benjamin David Keeney appeals from an order denying his petition to
recall his felony sentence and strike a one-year prior prison term enhancement imposed
pursuant to Penal Code section 667.5, subdivision (b).1 The petition was filed pursuant to
section 1170.18, which was added to the Penal Code by Proposition 47. The underlying
offense for the prior prison term was a felony when appellant was sentenced. It was
subsequently reduced to a misdemeanor pursuant to section 1170.18. We affirm because
section 1170.18 does not authorize the striking of appellant's prior prison term
enhancement.
                                             Procedural Background
                   In 2013 appellant pleaded guilty to the felony offense of selling or
transporting heroin. (Health & Saf. Code, § 11352, subd. (a).) He admitted three prior
prison term enhancements. (§ 667.5, subd. (b).) The underlying felony for the third prior

1
    Unless otherwise stated, all statutory references are to the Penal Code.
                                                             1
prison term was a 2005 conviction of possession of a controlled substance in violation of
Health and Safety Code section 11377, subdivision (a). The court sentenced appellant to
county jail for eight years: five years for selling or transporting heroin plus one year for
each of the three prior prison terms. The court "suspend[ed] the concluding 730 days of
[the eight-year] term, during which time [appellant] shall be placed on mandatory
supervision by the Probation Department . . . ."
              When appellant pleaded guilty in 2013, a violation of Health and Safety
Code section 11377, subdivision (a) was an alternate felony-misdemeanor, also known as
a "wobbler." The passage of Proposition 47 in 2014 made the offense a straight
misdemeanor unless the defendant has one or more prior convictions of specified serious
felonies, which appellant does not have.
              Acting as his own attorney, in January 2015 appellant filed a petition
stating that in 2013 he had been convicted of a "violation of P.C. 666.5 [sic]," a felony
offense that has "now been reclassified as [a] misdemeanor[]." Appellant alleged that he
was "currently serving a sentence for this conviction." He requested that the 2013
"felony sentence be recalled and that [he] be resentenced to a misdemeanor under Penal
Code § 1170.18(b), (d)."
              In a separate proceeding on February 4, 2015, appellant's 2005 felony
conviction of possession of a controlled substance (Health & Saf. Code, § 11377, subd.
(a)) was reduced to a misdemeanor pursuant to section 1170.18.
              In March 2015 the trial court conducted a hearing on the petition to recall
the 2013 felony sentence and resentence appellant to a misdemeanor. Defense counsel
informed the court that the 2005 felony conviction either had been reduced or should be
reduced to a misdemeanor pursuant to section 1170.18. Therefore, counsel argued, the
2005 conviction no longer qualified as a felony for which a prior prison term
enhancement could be imposed. (See People v. Tenner (1993) 6 Cal.4th 559, 563
["Imposition of a sentence enhancement [for a prior prison term] under Penal Code
section 667.5 requires proof that the defendant . . . was previously convicted of a



                                              2
felony"].) Counsel requested that the one-year prior prison term enhancement based on
the 2005 conviction "be stricken from [appellant's 2013] sentence."
              In denying appellant's petition, the trial court concluded "that [section]
1170.18 does not apply to this case, as the charge that [appellant] pled to, [selling or
transporting heroin], clearly is not a charge that was contemplated by [section] 1170.18."
                                         Discussion
              In his opening brief appellant contends, "[T]he Superior Court erred in
denying a petition to recall appellant's sentence to remove an enhancement for a prior
conviction that qualified for reduction as a misdemeanor." When appellant's counsel
wrote the opening brief, he was not aware that the 2005 felony conviction of possession
of a controlled substance had already been reduced to a misdemeanor pursuant to section
1170.18. On December 17, 2015, we granted appellant's request for judicial notice of
court records showing that the 2005 felony conviction was reduced to a misdemeanor on
February 4, 2015.
              The issue here is one of statutory construction. Section 1170.18 was added
to the Penal Code by Proposition 47, which was approved at the general election on
November 4, 2014. "[O]ur 'task is simply to interpret and apply the initiative's language
so as to effectuate the electorate's intent.' [Citation.]" (Robert L. v. Superior Court
(2003) 30 Cal.4th 894, 901.) "'[W]e apply the same principles that govern statutory
construction. [Citation.] Thus, . . . "we turn first to the language of the statute, giving the
words their ordinary meaning." [Citation.] The statutory language must also be
construed in the context of the statute as a whole and the overall statutory scheme [in
light of the electorate's intent]. When the language is ambiguous, "we refer to other
indicia of the voters' intent, particularly the analyses and arguments contained in the
official ballot pamphlet." [Citation.]' [Citation.]" (Id., at pp. 900-901.)
               Section 1170.18, subdivision (a) provides, "A person currently serving a
sentence for a conviction . . . of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section . . . had this act been in effect at the
time of the offense may petition for a recall of sentence . . . to request resentencing" to a

                                               3
misdemeanor. Section 1170.18, subdivision (b) provides: "If 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."
              The language of subdivisions (a) and (b) of section 1170.18 makes clear
that appellant is eligible for relief only if (1) he was previously convicted of a felony, (2)
he is currently serving a sentence for the felony conviction, and (3) the felony is now a
misdemeanor under Proposition 47. If appellant meets this criteria and does not pose an
unreasonable risk of danger to public safety, his "felony sentence shall be recalled" and
he shall be resentenced to a misdemeanor. (Id., subd. (b).)
              Here, the only felony of which appellant was convicted is selling or
transporting heroin in violation of Health and Safety Code section 11352, subdivision (a).
This offense has always been a felony. Proposition 47 did not affect it. Appellant cannot
be resentenced to a misdemeanor for this offense.
              Appellant was not convicted of the prior prison term enhancement, which is
neither a felony nor a misdemeanor. "Section 667.5(b) provides for an enhancement of
the prison term for a new offense of one year for each 'prior separate prison term served
for any felony' . . . ." (People v. Langston (2004) 33 Cal.4th 1237, 1241.)2 "A sentence
enhancement is 'an additional term of imprisonment added to the base term.' (Cal. Rules
of Court, rule 405(c) [now rule 4.405(3)], italics added.) . . . [E]nhancements '"focus on
an element of the commission of the crime or the criminal history of the defendant which
is not present for all such crimes and perpetrators and which justifies a higher penalty
than that prescribed for the offenses themselves."' [Citations.]" (People v. Jefferson
(1999) 21 Cal.4th 86, 101.)

2
 In 2011 section 667.5, subdivision (b) was amended to also provide a one-year
enhancement for "each prior separate . . . county jail term imposed under subdivision (h)
of Section 1170." (Stats. 2011-2012, 1st Ex.Sess., c. 12, § 10, eff. Sept. 21, 2011,
operative Jan. 1, 2012.)


                                               4
              Thus, section 1170.18 does not authorize the striking of appellant's prior
prison term enhancement merely because the felony conviction underlying the
enhancement was reduced to a misdemeanor pursuant to section 1170.18. The
enhancement is not a "conviction . . . of a felony" for which appellant is "currently
serving a sentence." (§ 1170.18, subd. (a).) Nor was a "felony sentence" imposed for the
enhancement. (Id., subd. (b).) In addition, appellant cannot be "resentenced to a
misdemeanor" for the enhancement. (Ibid.; see also, e.g., People v. Ruff (2016) 244
Cal.App.4th 935).
                                        Disposition
              The order denying appellant's petition to recall his sentence and strike a
one-year prior prison term enhancement (§ 667.5, subd. (b)) is affirmed.
              NOT TO BE PUBLISHED.



                                                         YEGAN, J.


We concur:


              GILBERT, P.J.


              PERREN, J.




                                             5
                                Jacquelyn H. Duffy, Judge

                       Superior Court County of San Luis Obispo

                           ______________________________


             John Gregory Derrick, 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, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General,
for Plaintiff and Respondent.
