Filed 2/7/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                             2d Crim. No. B283463
                                     (Super. Ct. No. 2003030277)
     Plaintiff and Respondent,            (Ventura County)

v.

GEORGE DONALD HATT,

     Defendant and Appellant.


             In November 2014, voters enacted Proposition 47 to
“reduce[] the penalties for certain drug- and theft-related offenses
and [to] reclassif[y] those offenses as misdemeanors rather than
felonies. [Citations.]” (People v. Zamarripa (2016) 247
Cal.App.4th 1179, 1182 (Zamarripa).) Proposition 47 also added
section 1170.18 to the Penal Code,1 which permits a person who
has completed the sentence for an eligible felony conviction to
apply to have the conviction redesignated a misdemeanor. (Ibid.;
see § 1170.18, subd. (f).) If the applicant meets specified criteria,



        1 All
          further undesignated statutory references are to the
Penal Code.
and has not suffered a disqualifying prior conviction, the trial
court must redesignate the offense. (§ 1170.18, subds. (g) & (i).)
             “The question presented by this case is, ‘Prior to
what?’” (People v. Montgomery (2016) 247 Cal.App.4th 1385,
1387 (Montgomery).) We hold that a person who suffers a
disqualifying conviction after filing a redesignation application
but prior to the trial court’s ruling on that application is barred
from relief under section 1170.18.
            FACTUAL AND PROCEDURAL HISTORY
             In October 2003, George Donald Hatt pled guilty to
possession of methamphetamine, then a felony. (Health & Saf.
Code, § 11377, subd. (a).) The trial court sentenced him to three
years in state prison.
             In May 2016, while a murder charge was pending
against him in Washington, Hatt filed an application to have his
methamphetamine possession conviction redesignated a
misdemeanor. (§ 1170.18, subd. (f).) The prosecution opposed the
application because of Hatt’s pending murder charge.2 The trial
court tentatively denied the application in August 2016.
            The prosecution then moved to continue the hearing
on Hatt’s application until the resolution of the murder case,
which was expected to go to trial in February 2017. The trial
court granted the continuance. It set the hearing for March, and
later continued the case to June. At the June hearing the
prosecutor informed the court that the Washington jury found
Hatt guilty of murder. The court then denied Hatt’s application.



      2A   murder conviction disqualifies an applicant from
redesignation relief. (§ 1170.18, subd. (i); see §§ 667, subd.
(e)(2)(C), 667.5, subd. (c)(1), 1192.7, subd. (c)(1).)


                                  2
                           DISCUSSION
                      The August 2016 “ruling”
             Hatt first contends the trial court erred when, in
August 2016, it “denied” his application based on his pending
murder case. We disagree.
             A tentative ruling is, by definition, not final. (People
v. Von Villas (1992) 11 Cal.App.4th 175, 241.) Whether a ruling
is tentative “turns on whether the court has finished its
consideration of [an] issue.” (People v. Ennis (2010) 190
Cal.App.4th 721, 736, italics omitted.) Here, the trial court had
not finished its consideration of Hatt’s application when it issued
the tentative denial in August 2016: It did not enter a final order
into the minutes, but rather solicited briefing and continued the
case. Because the court’s August 2016 ruling was not final, the
issue is not properly before us.3 (In re Anthony H. (1982) 138
Cal.App.3d 159, 165-166 [where court issues ruling but invites
briefing, states it will reserve final decision, and then issues
subsequent order, original ruling is deemed tentative].)
                           The continuances
             Hatt next contends the trial court abused its
discretion when it continued the hearing on his application until
after the conclusion of his murder case. We again disagree.4

      3 Even  if the trial court’s August 2016 ruling were final, we
could not consider it because Hatt did not file a notice of appeal
“within 60 days after . . . the making of the order being appealed.”
(Cal. Rules of Court, rule 8.308(a); see In re Chavez (2003) 30
Cal.4th 643, 650.)

      4 The Attorney General claims the continuances were
necessary for the trial court to determine whether Hatt “would
pose an unreasonable risk of danger to public safety.” (§ 1170.18,


                                  3
             “Continuances shall be granted only upon a showing
of good cause.” (§ 1050, subd. (e).) To determine whether good
cause for a continuance exists, a trial court “must consider ‘“‘not
only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether
substantial justice will be accomplished or defeated by a granting
of the motion.’”’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th
390, 450 (Doolin).) The court should also consider whether a
continuance would be “useful.” (People v. Beeler (1995) 9 Cal.4th
953, 1003 (Beeler), abrogated on another ground as recognized in
People v. Edwards (2013) 57 Cal.4th 658, 705.) “[T]o demonstrate
the usefulness of a continuance a party must show both the
materiality of the evidence necessitating the continuance and
that such evidence could be obtained within a reasonable time.”
(Ibid.) “Whether good cause exists is a question for the trial
court’s discretion. [Citation.]” (Doolin, at p. 450.) The grant or
denial of a continuance is “‘seldom successfully attacked.’
[Citation.]” (Beeler, at p. 1003.)
             Good cause for the continuances was shown here.
First, the trial court accomplished substantial justice by
continuing the hearing. (Doolin, supra, 45 Cal.4th at p. 450.) To
“‘[e]nsure that people convicted of murder, rape, and child
molestation will not benefit from’” Proposition 47’s redesignation

subd. (b).) But Hatt did not file a petition to have his sentence
recalled under subdivision (a) of section 1170.18; he filed an
application to have his conviction redesignated pursuant to
subdivision (f). The “risk of danger to public safety” consideration
required by subdivision (b) is thus inapplicable. (People v.
Shabazz (2015) 237 Cal.App.4th 303, 310-311 [describing the
different methods for obtaining relief under section 1170.18].)


                                 4
provisions, section 1170.18 includes “a general disqualification
[that applies] regardless of when a defendant was convicted of
the disqualifying offense.” (Zamarripa, supra, 247 Cal.App.4th
at pp. 1182, 1184; see also People v. Walker (2016) 5 Cal.App.5th
872, 876-877 (Walker) [discussing additional authority];
Montgomery, supra, 247 Cal.App.4th at pp. 1390-1391 [same].)
Had the court denied the continuances here, it would have
thwarted this purpose because it could not have denied Hatt’s
application despite the pending murder charge. By granting the
continuances, the court acceded to voters’ wishes to make certain
that a convicted murderer could not take advantage of section
1170.18. (Cf. In re Cook (1944) 67 Cal.App.2d 20, 24-25
[substantial justice to carry out the intent of the Legislature].)
             Second, the continuances were useful. (Beeler, supra,
9 Cal.4th at p. 1003.) The evidence necessitating the
continuances—whether Hatt had committed a disqualifying act—
was material to his redesignation application. And the
prosecution provided the trial court with a reasonable timeline of
when the evidence could be obtained: The prosecutor informed
the court when Hatt’s trial was scheduled to start, and kept it
apprised of the trial’s progress. The hearing on Hatt’s application
took place one week after the jury returned its guilty verdict.
(Arnold v. Superior Court (1971) 16 Cal.App.3d 984, 987
[continuance upheld when trial delayed due to pendency of
related proceeding].)
             Hatt’s claim that the trial court abused its discretion
because it misunderstood the law is not persuasive. When the
court continued the hearing on Hatt’s application, two published
opinions—Montgomery and Zamarripa—had interpreted the
phrase “prior conviction” for purposes of section 1170.18,




                                 5
subdivision (i). Both cases define “prior conviction” as one that
occurred before the filing of the redesignation application.
(Montgomery, supra, 247 Cal.App.4th at p. 1391; Zamarripa,
supra, 247 Cal.App.4th at p. 1184.) Under this definition, Hatt
claims he was eligible for relief since he had not been convicted at
the time of his application.
              But both the Montgomery and Zamarripa defendants
filed their redesignation applications after they suffered
disqualifying convictions. (Montgomery, supra, 247 Cal.App.4th
at p. 1388; Zamarripa, supra, 247 Cal.App.4th at p. 1182.)
Neither case considered the issue presented here: whether a
defendant who has a disqualifying case pending at the time of
filing an application, which becomes a disqualifying conviction
before the trial court rules on the application, is barred from
relief. A case is not authority for a proposition not considered.
(People v. Casper (2004) 33 Cal.4th 38, 43.) There was no abuse
of discretion in continuing the hearing on Hatt’s application.
                        The June 2017 ruling
              Hatt contends that, even if the trial court did not
abuse its discretion by continuing the hearing, it erred when it
denied his application because it misinterpreted the phrase “prior
conviction” in section 1170.18, subdivision (i). We disagree.
              “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 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




                                 6
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.) We
independently review matters of statutory construction. (People
v. Tran (2015) 61 Cal.4th 1160, 1166.)
             Like the courts considering the issue before us, we
deem the phrase “prior conviction” ambiguous, and turn to
indicia of the voters’ intent to decipher the phrase’s meaning.
(See People v. Casillas (2017) 13 Cal.App.5th 745, 751 (Casillas);
Walker, supra, 5 Cal.App.5th at p. 876; Montgomery, supra, 247
Cal.App.4th at p. 1389; Zamarripa, supra, 247 Cal.App.4th at p.
1183.) The Voter Information Guide stated that one of
Proposition 47’s purposes is to “[e]nsure that people convicted of
murder, rape, and child molestation will not benefit from this
act.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of
Prop. 47, § 3, p. 70.) The Legislative Analyst stated that “no
offender who has committed a specified severe crime [can] be
resentenced or have their conviction changed.” (Id., analysis of
Prop. 47 by Legis. Analyst, p. 36.) And proponents of Proposition
47 stated that the proposition “includes strict protections to
protect public safety and make sure rapists, murderers,
molesters, and the most dangerous criminals cannot benefit.”
(Id., rebuttal to argument against Prop. 47, p. 39.) These
materials indicate that voters deemed immaterial whether an
applicant’s disqualifying conviction occurred before,
simultaneously with, or after the conviction for which
redesignation is sought.
             Courts that previously examined these materials
reached the same result. The Casillas, Walker, and Zamarripa




                                7
defendants all suffered convictions that disqualified them from
relief after they were convicted for felonies eligible for
redesignation. (Casillas, supra, 13 Cal.App.5th at p. 748; Walker,
supra, 5 Cal.App.5th at p. 875; Zamarripa, supra, 247
Cal.App.4th at p. 1182.) The Montgomery defendant’s
disqualifying conviction occurred contemporaneously with the
conviction eligible for redesignation. (Montgomery, supra, 247
Cal.App.4th at p. 1388.) All four defendants argued that section
1170.18, subdivision (i), did not disqualify them from
redesignation because their disqualifying convictions did not
occur prior to the convictions for which they sought
redesignation. (Casillas, at pp. 747-748; Walker, at pp. 874-875;
Montgomery, at pp. 1388-1389; Zamarripa, at pp. 1181-1182.)
              All four courts rejected the defendants’ arguments.
The Casillas and Walker courts held that the provisions of section
1170.18, subdivision (i), apply so long as the disqualifying
conviction occurs before the trial court rules on the application
(Casillas, supra, 13 Cal.App.5th at pp. 751-752; Walker, supra, 5
Cal.App.5th at p. 876), while the Montgomery and Zamarripa
courts held that subdivision (i)’s provisions apply so long as the
disqualifying conviction occurs before the filing of the application
(Montgomery, supra, 247 Cal.App.4th at p. 1391; Zamarripa,
supra, 247 Cal.App.4th at p. 1184). Though they couched their
holdings in different language, the courts recognized that voters
deemed irrelevant the sequence of the disqualifying conviction in
relation to the conviction for which redesignation was sought.
(Casillas, at p. 752; Walker, at p. 879; Montgomery, at p. 1392;
Zamarripa, at p. 1184.) And a close reading of the cases reveals
no actual conflict between Montgomery and Zamarripa on the one
hand and Casillas and Walker on the other: Because all four




                                 8
defendants’ disqualifying convictions occurred before they filed
their redesignation applications, substituting “ruling on the
application” into the holdings of Montgomery and Zamarripa and
“filing the application” into the holdings of Casillas and Walker
would have no practical effect.
             Hatt nevertheless urges us to follow Montgomery and
Zamarripa and to reject Casillas and Walker. But neither
Montgomery nor Zamarripa considered whether the provisions of
section 1170.18, subdivision (i), are triggered if, as here, an
applicant has a case pending that involves a disqualifying felony.
To extend their holdings to this factual scenario would encourage
an accused murderer to take advantage of subdivision (f)’s
redesignation provisions prior to suffering a conviction. That
outcome directly contradicts the voters’ intent.
             We conclude that Casillas and Walker state the rule
applicable here: A “‘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
[redesignated] a misdemeanor.” (Walker, supra, 5 Cal.App.5th at
p. 876.) Accordingly, if, at the time of filing an application for
redesignation under section 1170.18, subdivision (f), an applicant
has a case pending that may result in a disqualifying conviction
under subdivision (i), the court may continue the hearing on the
application until resolution of the pending case.
             Our holding will not permit a prosecutor to continue
a matter indefinitely, as Hatt avers. Nothing in our opinion
changes the law on when good cause for a continuance exists
under section 1050. Nor are we ruling on a case in which a
redesignation applicant has no case pending when the application
is filed. Our holding simply prevents a narrow class of




                                 9
defendants from attempting to reap a benefit the voters did not
intend to sow.
                          DISPOSITION
            The trial court’s June 6, 2017, order denying Hatt’s
application for redesignation is affirmed.
            CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:



             GILBERT, P. J.



             YEGAN, J.




                                10
                      Michael Lief, Judge

               Superior Court County of Ventura

                ______________________________


           Todd W. Howeth, Public Defender, William Quest,
Senior Deputy Public Defender, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
