Filed 2/15/17
                   CERTIFIED FOR PUBLICATION




    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                            DIVISION FOUR


THE PEOPLE,                              B269048

       Plaintiff and Appellant,          (Los Angeles County
                                          Super. Ct. No. BA404022)
       v.

ROBERT MARK DIAZ,

       Defendant and Respondent.




       APPEAL from an order granting habeas corpus of the Superior
Court of Los Angeles County, Craig E. Veals, Judge. Reversed.
       Jackie Lacey, District Attorney, Roberta Schwartz and Felicia N.
Shu, Deputy District Attorneys, for Plaintiff and Appellant.
       Bahar Law Office and Sarvenaz Bahar, under appointment by the
Court of Appeal, for Defendant and Respondent.
     The People of the State of California appeal from the order
granting the petition for writ of habeas corpus filed by Robert Mark
Diaz. We reverse the order, and reinstate Diaz’s prison sentence of six
years.


                             BACKGROUND
     This is the third time this case has come before us. As we
explained on the first occasion—Diaz’ direct appeal from his judgment
of conviction—a Los Angeles Superior Court jury convicted Diaz of
possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).1 He
admitted one prior strike conviction (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), and two prior prison terms (§ 667.5, subd. (b)). The
superior court sentenced him to a term of six years in prison, including
one year for each of his two prior prison terms under section 667.5,
subdivision (b). The prior felony conviction underlying one of the
section 667.5, subdivision (b) enhancements was a 2009 conviction in
San Bernardino Superior Court under former section 666, commonly
called petty theft with a prior.
     While Diaz’s appeal from the judgment was pending, California
voters approved Proposition 47, “The Safe Neighborhoods and Schools
Act.” Proposition 47 reduced certain nonserious, nonviolent felonies,
including petty theft with a prior, to misdemeanors, and provided a
procedure under section 1170.18, subdivision (f) et seq., for persons who



1    Undesignated section references are to the Penal Code.

                                    2
have completed a felony sentence for such an offense to apply for
reclassification of the conviction as a misdemeanor.
     Diaz contended that his 2009 felony conviction of petty theft with
a prior would be a misdemeanor if Proposition 47 had been in effect at
the time of that offense, and that therefore it could not be the basis of
an enhancement of his sentence under section 667.5, subdivision (b).
He urged us to declare the conviction a misdemeanor and strike the
section 667.5, subdivision (b) enhancement. We held defendant’s
contention that Proposition 47 compelled the striking of his section
667.5, subdivision (b) enhancement was premature, because defendant
was required first to file an application in the court of conviction under
section 1170.18, subdivision (f) to have his 2009 conviction designated
as a misdemeanor. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-
1328 (Diaz).) We therefore affirmed the judgment.
     Following his appeal, Diaz filed a petition under section 1170.18,
subdivision (f) in the San Bernardino Superior Court to redesignate his
2009 conviction of petty theft with a prior as a misdemeanor. The San
Bernardino court granted the petition, designated the crime as a
misdemeanor, and resentenced defendant to 180 days in county jail
with credit for that time.
     Defendant then filed a petition for writ of habeas corpus in this
court requesting that his section 667.5, subdivision (b) enhancement
based on the 2009 conviction be stricken. We issued an order to show
cause, returnable in the Los Angeles Superior Court, why the section
667.5, subdivision (b) prior should not be stricken based on the
redesignation of the 2009 conviction. After briefing and argument, the
                                    3
superior court granted the petition. The court struck the section 667.5,
subdivision (b) prior based on the 2009 conviction, resentenced
defendant to five years in state prison, and, based on his presentence
credits for 2,276 days, ordered him released from custody. The People
appeal from the court’s grant of the habeas corpus petition.


                             DISCUSSION
     The People contend that the reclassification of defendant’s 2009
felony conviction of petty theft with a prior as a misdemeanor, which
occurred after his original sentence, does not preclude its use to support
his section 667.5, subdivision (b) enhancement. We agree. The
redesignation under Proposition 47 of a prior felony conviction to a
misdemeanor operates prospectively, from the date of the redesignation
forward, and not retroactively, as if the conviction always had been a
misdemeanor.
     The Supreme Court has granted review in several cases that have
reached the same conclusion. (See, e.g., People v. Jones (2016) 1
Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016,
S232900; People v. Williams (2016) 245 Cal.App.4th 458, review
granted May 11, 2016, S233539; People v. Carrea (2016) 244
Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Ruff
(2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201.)




                                    4
We align ourselves with the reasoning of those decisions, and use it
here.2




2      To the extent Diaz argues that our decision in his prior appeal and our
issuance of an order to show cause on his current petition for writ of habeas
corpus “implicitly recognize[d] that Proposition 47 applies to [his] sentence
enhancement and requires that it be stricken,” he is mistaken. In our prior
opinion, we concluded that in light of the plain meaning of section 1170.18,
the reasoning of People v. Flores (1979) 92 Cal.App.3d 461, on which Diaz
relied, did not suggest that we should strike defendant’s section 667.5,
subdivision (b) prior, and “[w]e express[ed] no opinion whether Flores’s
reasoning suggest[ed] that a felony conviction which has been designated a
misdemeanor under section 1170.18, subdivision (k) can be used to support a
section 667.5, subdivision (b) enhancement.” (Diaz, supra, 238 Cal.App.4th
at p. 1323.) Nor did we express an opinion on whether In re Estrada (1965)
63 Cal.2d 740, another decision on which Diaz relied, or principles of equal
protection, would require the striking of Diaz’s section 667.5, subdivision (b)
enhancement upon the reclassification of the supporting conviction as a
misdemeanor. (Diaz, supra, 238 Cal.App.4th at p. 1336 [“Estrada simply
does not apply in the procedural posture of defendant’s case,” and “even if
Estrada were construed to apply to the procedural posture of this case, it
would not require us to reduce defendant’s 2009 conviction to a
misdemeanor”]; id. at p. 1337 [“whatever merit [Diaz’] equal protection
argument might have for someone whose prior conviction has been
designated a misdemeanor, the argument does not apply here”].)
       Further, our issuance of an order to show cause on his habeas corpus
petition was not an implicit determination on the ultimate merits of the
petition. It simply reflected a determination that Diaz made a prima facie
claim for relief that was not procedurally barred. The issuance of an order to
show cause “is largely procedural. It ‘does not decide the issues and cannot
itself require the final release of the petitioner.’ [Citation.] Rather, the writ
[or order to show cause] commands the person having custody of the
petitioner to bring the petitioner ‘before the court or judge before whom the
writ is returnable’ [citation] . . . and to submit a written return justifying the
petitioner’s imprisonment or other restraint on the petitioner’s liberty.”
(People v. Romero (1994) 8 Cal.4th 728, 738, fn. omitted.)

                                        5
     I.    Statutory Interpretation
     “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 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.)
     Although Proposition 47 does not expressly so state, its language
clearly implies that it has no retroactive effect. Proposition 47 creates
two separate mechanisms for redesignating offenses. The first applies
to a defendant “currently serving a sentence for [that] conviction,” and
allows for the “recall” of that felony sentence and for resentencing
contingent upon a finding that the redesignation will not pose an
“unreasonable risk that the [defendant] will commit a new violent
felony within the meaning of” section 667, subdivision (e)(2)(C)(iv).
(§ 1170.18, subds. (a), (b) & (c).) The second applies to a defendant who
has “completed his or her sentence” and allows for re-“designat[ion]” of
that offense as a misdemeanor. (Id., subds. (f) & (g).) There is no
mechanism for resentencing on a felony not affected by Proposition 47,
merely because an offense underlying one of its prior conviction
enhancements is so affected. Moreover, Proposition 47 expressly
                                  6
provides that the two mechanisms it creates are exhaustive: “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).)
     Moreover, Proposition 47 borrows language from section 17 that
has a well-defined meaning and that does not grant an offense’s
redesignation as a misdemeanor retroactive effect. Proposition 47
expressly provides that “[a]ny felony conviction that is recalled and
resentenced” under either of the two statutory mechanisms “shall be
considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).)
This language is identical to the language used in section 17 to describe
the effect of a judicial declaration that a wobbler offense—which is
punishable as a felony until designated a misdemeanor—is to be
considered a misdemeanor. (§ 17, subd. (b)(3) [where a crime is a
wobbler, “it is a misdemeanor for all purposes . . . [¶] . . . [¶] [w]hen
. . . the court declares the offense to be a misdemeanor”.] “[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), meaning from that point on.
Because “identical language appearing in separate statutory provisions
should receive the same interpretation when the statutes cover the
same or analogous subject matter” (People v. Cornett (2012) 53 Cal.4th
1261, 1269, fn. 6) and because Proposition 47 and section 17 both
address the effect to be given the redesignation of a felony as a
misdemeanor, we are presumptively obligated to construe the phrase
“misdemeanor for all purposes” under Proposition 47 to mean the same
                                  7
as it does under section 17—namely, that a felony offense redesignated
as a misdemeanor under Proposition 47 retains its character as a felony
prior to its redesignation, and is treated as a misdemeanor only after
the time of redesignation.
     The recent decision in People v. Abdallah (2016) 246 Cal.App.4th
736 (Abdallah), supports this conclusion. In Abdallah, Proposition 47
was enacted and became effective between the date of the defendant’s
conviction and sentence. Before sentencing, the trial court redesignated
the defendant’s prior 2011 conviction of possession of
methamphetamine as a misdemeanor under Proposition 47. The court
then sentenced defendant to a section 667.5, subdivision (b)
enhancement based in part on that prior conviction. (Id. at pp. 740-
742.) On appeal, the issue presented was “whether, at the time the
court sentenced [the defendant] in the present case, [his] original felony
conviction in the 2011 case satisfied the fourth requirement of section
667.5, subdivision (b) [that he “did not remain free for five years of both
prison custody and the commission of a new offense resulting in a felony
conviction” (People v. Tenner (1993) 6 Cal.4th 559, 563, italics added)],
or whether, once the court resentenced [him] on his 2011 conviction, he
no longer had committed an offense that ‘result[ed] in a felony
conviction’ within five years of release on parole or discharge from
custody for a prior felony conviction (in this case, the 2002 conviction).”
(Abdallah, supra, 246 Cal.App.4th at pp. 744-745.)
     The Court of Appeal held that the trial court’s redesignation of the
2011 conviction as a misdemeanor precluded its use for the court’s later


                                     8
imposition of a section 667.5, subdivision (b) enhancement. The court
reasoned that the “for all purposes” language of Proposition 47 has the
same meaning as the identical language in section 17, subdivision (b),
which applies to reduction of an alternative felony/misdemeanor
(“wobbler’) offense to a misdemeanor. Reasoning by analogy from Park,
supra, 56 Cal.4th 782, which held that reduction of a wobbler conviction
to a misdemeanor under section 17, subdivision (b) precluded its use in
a later prosecution to enhance the sentence as a prior serious felony
conviction under section 667, subdivision (a), the Court of Appeal
concluded: “The same logic applies to sections 667.5, subdivision (b),
and 1170.18, subdivision (k). Section 667.5, subdivision (b), excludes
from the prior prison term enhancement a defendant who has neither
committed ‘an offense which results in a felony conviction’ nor been
subject to ‘prison custody or the imposition of a term of jail custody . . .
or any felony sentence that is not suspended’ within five years of release
on parole or official discharge from another felony conviction resulting
in the defendant’s incarceration. Once the trial court recalled [the
defendant’s] 2011 felony sentence and resentenced him to a
misdemeanor, section 1170.18, subdivision (k), reclassified that
conviction as a misdemeanor ‘for all purposes.’ [Citation.] . . . Thus,
the trial court erred by imposing the one-year sentence enhancement
under section 667.5, subdivision (b).” (Abdallah, supra, 246
Cal.App.4th at p. 746.)
      Significantly, the court distinguished “recent cases holding that
Proposition 47 does not apply retroactively to redesignate predicate
offenses as misdemeanors for purposes of imposing sentencing
                                  9
enhancements where the original sentence was imposed before the
enactment of Proposition 47. [Citations.] Indeed, those cases suggest
that where, as here, a prior conviction is no longer a felony at the time
the court imposes a sentence enhancement under section 667.5,
Proposition 47 precludes the court from using that conviction as a
felony merely because it was a felony at the time the defendant
committed the offense.” (Abdallah, supra, 246 Cal.App.4th at p. 747.)
      We note as well that the purposes of Proposition 47 suggest that it
does not operate retroactively. Sections 2 and 3 of Proposition 47 state
the chief aims—“ensur[ing] that prison spending is focused on violent
and serious offenses,” “maximiz[ing] alternatives for nonserious,
nonviolent crime,” and “invest[ing] the savings generated from this act
into prevention and support programs in K–12 schools, victim services,
and mental health and drug treatment.” (Voter Information Guide, text
of Prop. 47, §§ 2, 3, p. 70.)
      Also, Proposition 47 does not rebut the statutory presumption that
amendments to the Penal Code operate prospectively. Section 3
provides that “[n]o part of [the Penal Code] is retroactive, unless
expressly so declared.” Generally, only an express legislative
declaration of retroactivity or “‘a clear and compelling implication’” of
such will suffice. (People v. Alford (2007) 42 Cal.4th 749, 753.)
Proposition 47 contains neither an express declaration nor a clear and
compelling implication that a Proposition 47 redesignation should be
given retroactive effect. To the contrary, as we have discussed, the
language and purposes of the enactment show that reclassification of an
offense should be give only prospective effect.
                                   10
     Finally, nothing in section 667.5, subdivision (b), suggests that
Diaz is entitled to resentencing. Section 667.5, subdivision (b) provides
in relevant part that a “court shall,” when imposing a sentence of
imprisonment on any felony, “impose a[n additional, consecutive] one-
year term for each prior separate prison term or county jail term . . . for
any felony.” (§ 667.5, subd. (b).) In the past, the Supreme Court
commented that “667.5(b) is aimed primarily at the underlying felony
conviction, and only secondarily, and as an indicium of the felony’s
seriousness, at the prior prison term.” (People v. Prather (1990) 50
Cal.3d 428, 440.) But the court has since taken a different view, noting
that “[t]he purpose of [this] enhancement is ‘to punish individuals’ who
have shown that they are ‘“hardened criminal[s] who [are] undeterred
by the fear of prison.”’” (In re Preston (2009) 176 Cal.App.4th 1109,
1115, quoting People v. Jones (1993) 5 Cal.4th 1142, 1148; People v.
Fielder (2004) 114 Cal.App.4th 1221, 1232.) Thus, the enhancement is
designed to provide an extra deterrent for criminals who were not
deterred by prior terms of imprisonment in prison or in county jail
under lengthier felony sentences. The critical factor is thus the fact of
imprisonment, not the designation of the offense that led to it.


     II.   Diaz’ Authorities
     The decisions on which Diaz’ primarily relies—People v. Flores,
supra, 92 Cal.App.3d 461 (Flores), In re Estrada, supra, 63 Cal.2d 740
(Estrada), and People v. Conley (2016) 63 Cal.4th 646 (Conley)—do not



                                    11
compel the conclusion that reclassification of an offense under
Proposition 47 should be given retroactive effect.
     In Flores, the defendant sought to overturn a long-final marijuana
possession conviction used to enhance a later drug-related conviction on
the basis of subsequent legislation reducing the penalty for marijuana
possession crimes and mandating that records of arrests and
convictions pertaining to those crimes be destroyed. (Flores, supra, 92
Cal.App.3d at pp. 471–472.) Flores held the defendant was entitled to
the relief. (Id. at pp. 473–474.) The court concluded that the
Legislature’s destruction-of-court-records mandate evinced a clear
intent that those records (and the convictions they recorded) not be used
to enhance future sentences. (Ibid.) No such clear intent exists with
Proposition 47.
     Diaz’s reliance on Estrada fares no better. “Estrada represents
‘an important, contextually specific qualification to the ordinary
presumption that statutes operate prospectively: When the Legislature
has amended a statute to reduce the punishment for a particular
criminal offense, we will assume, absent evidence to the contrary, that
the Legislature intended the amended statute to apply to all defendants
whose judgments are not yet final on the statute’s operative date. . . .’
[Citation.]” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195–1196
(Hajek); see People v. Brown (2012) 54 Cal.4th 314, 324 [Estrada
reflects a “reasonable presumption that a legislative act mitigating the
punishment for a particular criminal offense is intended to apply to all
nonfinal judgments”]; Estrada, supra, 63 Cal.2d at p. 744 [“[i]f the


                                    12
amendatory statute lessening punishment becomes effective prior to the
date the judgment of conviction becomes final, then . . . it, and not the
old statute in effect when the prohibited act was committed, applies.”].)
In other words, the Estrada presumption holds that when a new statute
lessens the punishment for a “particular criminal offense” (Hajek,
supra, 58 Cal.4th at p. 1195) or a “prohibited act” (Estrada, supra, 63
Cal.2d at p. 744), it is presumed that the new statute applies to all
nonfinal judgments of conviction for that “particular criminal offense”
or “prohibited act.” Such a judgment is “final” for purposes of the
Estrada rule when courts on direct review can no longer provide a
remedy, including the time within which to petition to the United
States Supreme Court for writ of certiorari. (In re Pine (1977) 66
Cal.App.3d 593, 594.)
     Here, Proposition 47 did not reduce the punishment for the offense
(felon in possession of a firearm) Diaz was convicted of in the present
case and for which he was serving his sentence until the grant of habeas
corpus relief which is the subject of this appeal. Rather, the “particular
criminal offense” (Hajek, supra, 58 Cal.4th at p. 1195) or “prohibited
act” (Estrada, supra, 63 Cal.2d at p. 744) for which Proposition 47
reduced the punishment is petty with a prior, the offense of which Diaz
was convicted in 2009 and which forms the basis of his prison
enhancement. But Diaz’s 2009 judgment of conviction for petty with a
prior is final. Thus, the Estrada presumption simply does not apply.
Also, as we have already explained, we find nothing in Proposition 47 to
suggest that it applies to preclude using a prior conviction that was


                                    13
final before Proposition 47’s effective date as the basis for an
enhancement of the sentence for another crime that is not affected by
Proposition 47. In our view, the redesignation under Proposition 47 of a
prior felony conviction to a misdemeanor operates prospectively, from
the date of the redesignation forward, and not retroactively, as if the
conviction always had been a misdemeanor.
     In the recent decision of People v. Evans (2016) 6 Cal.App.5th 894,
the court took a different view of Estrada and Proposition 47 in the
context of a defendant who had obtained a reclassification of the prior
offense underlying his section 667.5, subdivision (b) enhancement after
he was sentenced, but while his appeal from the judgment on appeal
was pending. In that situation, the court in Evans reasoned that
“Proposition 47 provided a means for [the defendant] to mitigate
punishment, and he successfully took advantage of that procedure
before his sentence became final. Evan’s request that we correct his
sentence on appeal therefore does not seek to apply Proposition 47 in a
retroactive manner not approved by the voters.” (Id. at p. 904, fn.
omitted.) In a footnote, without discussion, the court stated: “The
People contend Estrada’s holding does not apply here because the
sentence for Evans’s 2007 felony drug offense [the basis of the section
667.5, subdivision prior] has long been final. The People
misunderstand the finality aspect of the Estrada analysis. The key
date is when the sentence including the enhancement becomes final
(i.e., Evans’s 2015 sentence), not when the sentence for the offense



                                    14
supporting the enhancement became final.” (People v. Evans, supra, 6
Cal.App.5th at p. 904, fn. 3.)
      We disagree with Evans’ interpretation of Estrada and its effect
on Proposition 47. As we have explained, the Estrada presumption has
a limited scope: when a new statute lessens the punishment for a
“particular criminal offense” (Hajek, supra, 58 Cal.4th at p. 1195) or a
“prohibited act” (Estrada, supra, 63 Cal.2d at p. 744), it is presumed
that the new statute applies to all nonfinal judgments of conviction for
that “particular criminal offense” or “prohibited act.” As we have also
explained, neither the Estrada presumption, nor a proper interpretation
of Proposition 47, precludes using Diaz’ 2009 conviction, which was
final before Proposition 47’s effective date, as the basis for an
enhancement of the sentence for his conviction in the present case of
felon in possession of a firearm, which was not affected by Proposition
47.
      In addition, we note that Evans is factually distinguishable.
Unlike the defendant in Evans, Diaz did not obtain reclassification of
his 2009 conviction while his direct appeal was pending. He did so after
his judgment was affirmed on appeal, and he then filed a filed a petition
for writ of habeas corpus seeking to have the prison enhancement
stricken.
      Diaz argues that the discussion of the Estrada rule in Conley
supports application of the Estrada rule to his case. We disagree.
Conley considered Estrada in the context of the Three Strikes Reform
Act of 2012. “The Reform Act changed the sentence prescribed for a


                                     15
third strike defendant whose current offense is not a serious or violent
felony. [Citation.] Under the Reform Act’s revised penalty provisions,
many third strike defendants are excepted from the provision imposing
an indeterminate life sentence [citation] and are instead sentenced in
the same way as second strike defendants [citation]: that is, they
receive a term equal to ‘twice the term otherwise provided as
punishment for the current felony conviction’ [citation]. A defendant
does not qualify for this ameliorative change, however, if [it is pleaded
and proven that his current offense is one of certain offenses listed in
section 1170.12, subd. (c)(2)(C)(i) – (iv)]. . . . [¶] In the Reform Act, the
voters also established a procedure for ‘persons presently serving an
indeterminate term of imprisonment’ under the prior version of the
Three Strikes law to seek resentencing under the Reform Act’s revised
penalty structure. (§ 1170.126, subd. (a).) Under section 1170.126,
‘within two years after the effective date of the act . . . or at a later date
upon a showing of good cause,’ such persons can file a petition for a
recall of sentence before the trial court that entered the judgment of
conviction. (Id., subd. (b).) If the petitioner would have qualified for a
shorter sentence under the Reform Act version of the law, taking into
consideration the disqualifying factors (§ 1170.126, subds. (e), (f)),
section 1170.126 provides that he ‘shall be resentenced pursuant to [the
Reform Act] unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger
to public safety’ (id., subd. (f)).” (Conley, supra, 63 Cal.4th at pp. 652-
654.)


                                      16
     In Conley, while the defendant’s appeal from his three strikes
judgment was pending, the voters enacted the Reform Act (effective
Nov. 7, 2012). The defendant in Conley, was “‘presently serving an
indeterminate term of imprisonment’ under the prior version of the
Three Strikes law,” and thus “under the plain language of the Reform
Act, . . . [was] entitled to seek the benefit of the Act’s reduced penalties
by filing a petition to recall his sentence and requesting resentencing
under the new law.” (Conley, supra, 63 Cal.4th at p. 653, 655.) He
contended, however, that under Estrada, “he and others whose
judgments were not yet final [on appeal] as of the effective date of the
Reform Act are entitled to automatic resentencing under the revised
penalty provisions of the Act, without the need to file a recall petition
under Penal Code section 1170.126, and thus without regard to whether
the trial court determines that resentencing the defendant would pose
‘an unreasonable risk of danger to public safety.’” (Id. at pp. 655-656.)
     The court reasoned that the Reform Act expressly operates
retroactively (“[s]ection 1170.126 creates a special mechanism that
entitles all persons ‘presently serving’ indeterminate life terms imposed
under the prior law to seek resentencing under the new law” regardless
of whether that sentence is final). (Conley, supra, 63 Cal.4th at p. 657.)
But because the Reform Act created a “special mechanism for
application of the new lesser punishment to persons who have
previously been sentenced, and . . . expressly ma[de] retroactive
application of the lesser punishment contingent on a court’s evaluation
of the defendant’s dangerousness,” the Estrada presumption of


                                     17
retroactivity did not apply to require automatic resentencing. “[T]o
confer an automatic entitlement to resentencing under these
circumstances would undermine the apparent intent of the electorate
that approved section 1170.126: to create broad access to resentencing
for prisoners previously sentenced to indeterminate life terms, but
subject to judicial evaluation of the impact of resentencing on public
safety, based on the prisoner’s criminal history, record of incarceration,
and other factors.” (Conley, supra, 63 Cal.4th at pp. 658-659.)
     Nothing in Conley suggests that the Estrada presumption gives
Proposition 47 retroactive effect. Conley recognized that “[o]ur cases do
not ‘dictate to legislative drafters the forms in which laws must be
written’ to express an intent to modify or limit the retroactive effect of
an ameliorative change; rather, they require ‘that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court
can discern and effectuate it.’ [Citations.]” (Conley, supra, 63 Cal.4th
at pp. 656-657; id. at p. 661.) As we have discussed, such intent is
clearly manifested in Proposition 47. Indeed, that conclusion is
buttressed by Conley’s analysis. Conley relied on the specifics of the
resentencing procedures created by the Reform Act to rebut the Estrada
presumption. Here, we do the same. As we have noted, Proposition 47
creates two separate mechanisms for redesignating offenses. One
applies to defendants currently serving a sentence for that offense, and
permits “recall” of that felony sentence and resentencing contingent
upon a finding that the redesignation will not pose an “unreasonable
risk that the [defendant] will commit a new violent felony within the


                                    18
meaning of” section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subds. (a),
(b) & (c).) The other applies to a defendant, such as Diaz, who has
“completed his or her sentence” and allows for re-“designat[ion]” of that
offense as a misdemeanor. (Id., subds. (f) & (g).) Proposition 47 has no
mechanism for doing what Diaz seeks by his petition for writ of habeas
corpus: resentencing merely because an offense underlying one of his
prior conviction enhancements (for which he has already served his
sentence) has been redesignated. Moreover, Proposition 47 expressly
provides that the two mechanisms it creates are exhaustive: “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).) By omitting any procedure that would
permit Diaz’ resentencing, and by providing that its mechanisms are
exhaustive, Proposition 47 clearly signals that it does not have the
retroactive effect Diaz seeks.


     III.   Equal Protection
     Diaz argues that not striking his section 667.5, subdivision (b)
enhancement violates equal protection. As we understand it, he argues
that refusing to give a Proposition 47 redesignation retroactive effect
creates two classes of defendants: (1) those sentenced now, who are
able to avoid enhancements based on prior felony or wobbler convictions
(because the redesignations they obtain on those prior convictions apply
prospectively) and (2) those sentenced in the past, who are unable to
avoid enhancements based on prior felony or wobbler convictions
(because the redesignations they obtain on those prior convictions do
                                  19
not apply retroactively). However, the distinction between these two
classes is whether the defendants were able to seek redesignation
before or after the current sentence was imposed, which in turn is a
function of the date Proposition 47 took effect. It is well settled that “‘a
reduction of sentences only prospectively from the date a new
sentencing statute takes effect is not a denial of equal protection.’”
(People v. Floyd (2003) 31 Cal.4th 179, 189; see also People v. Smith
(2015) 234 Cal.App.4th 1460, 1468 [“‘a statute ameliorating punishment
for particular offenses may be made prospective only without offending
equal protection’”].) This result makes sense because a classification
defined by the date an ameliorative statute takes effect rationally
furthers the state’s legitimate interest in “assur[ing] that penal laws
will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.” (In re Kapperman (1974) 11 Cal.3d
542, 546.)




                                     20
                             DISPOSITION
     The orders granting the petition for writ of habeas corpus, striking
Diaz’ section 667.5, subdivision (b) enhancement, and resentencing him
to five years in state prison are reversed. His original sentence of six
years in state prison is reinstated.
           CERTIFIED FOR PUBLICATION




                                            WILLHITE, J.



           I concur:




           COLLINS, J.




                                       21
EPSTEIN, P. J., Dissenting.


     I respectfully dissent.
     The Safe Neighborhoods and Schools Act (Proposition 47), adopted
by initiative in 2014, reduced certain drug possession and theft-related
offenses from felonies or wobblers to misdemeanors, which carry lower
punishment. The initiative created a procedure that allows those who
were convicted of a reclassified felony to petition to recall their
sentences, even after their sentences have become final, and have their
convictions redesignated as misdemeanors and their sentences reduced.
(Pen. Code, § 1170.18, subds. (a) & (b);1 People v. Rivera (2015) 233
Cal.App.4th 1085, 1092 (Rivera).) Proposition 47 also allows those who
have completed their sentences for a reclassified felony to petition the
trial court to reduce their prior conviction to a misdemeanor.
(§ 1170.18, subds. (f) & (g); Rivera, at p. 1093.) The initiative provides
that once a felony conviction is recalled and resentenced as a
misdemeanor under subdivision (b) or redesignated as a misdemeanor
under subdivision (g) of section 1170.18, the conviction “shall be
considered a misdemeanor for all purposes,” with certain exceptions
related to firearms. (§ 1170.18, subd. (k).)
     In applying its provisions, the “[a]ct shall be liberally construed to
effectuate its purposes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text
of Prop. 47, p. 74, § 18.) Beyond that, the common law rule of strict


1    All further undesignated statutory references are to the Penal Code.
construction does not apply to penal statutes. (§ 4.) Criminal statutes
are to be “construed . . . with a view to effect its objects and to promote
justice.” (Ibid.) This is particularly true with respect to ameliorative
statutes such as this one. Proposition 47 and other penal provisions
that are aimed at complex social problems require a practical
construction without overrefined inquiries into the meanings of words.
“‘Reasonable certainty, in view of the conditions, is all that is required,
and liberal effect is always to be given to the legislative intent when
possible.’’’ (People v. Kennedy (1937) 21 Cal.App.2d 185, 193.) Further,
Diaz raises a substantial argument that using a reclassified
misdemeanor to support a section 667.5(b) enhancement would violate
his constitutional right to equal protection. If reasonably possible, an
initiative should be construed in a manner that avoids a serious
constitutional question. (See People v. Engram (2010) 50 Cal.4th 1131,
1161 and cases cited.)
     In this case, the People are appealing the December 3, 2015 order
granting respondent Mark Diaz’s petition for writ of habeas corpus.
The trial court struck a one-year prior prison term enhancement
(§ 667.5, subd. (b) (667.5(b))) and resentenced Diaz in light of the
August 18, 2015 reduction of the underlying conviction on section 666 to
a misdemeanor. My colleagues conclude that Diaz is not entitled to
relief because the judgment had become final before the underlying
conviction was reclassified. I do not agree. In my view, the judgment
was not yet final when the order granting the petition to reduce the
prior conviction was filed.


                                     2
     The significance of a final judgment is that “offenders may
challenge prison prior enhancements based on reclassified convictions
so long as the enhanced sentence is not subject to a final judgment.”
(People v. Evans (2016) 6 Cal.App.5th 894, 903 (Evans).) According to
Evans, if an underlying felony is reclassified as a misdemeanor before
there is a final judgment, the enhancement may be stricken under
section 1170.18, subdivision (k) and In re Estrada (1965) 63 Cal.2d 740
(Estrada). (Evans, at p. 903.)
     In determining when the judgment in this case became final, the
following dates are relevant:
    May 14, 2013           Defendant was convicted of
                            possession of a firearm by a
                            felon (§ 29800, subd. (a)(1)).
                            (L.A. County Super. Ct. No.
                            BA404022 (this case).)
    February 25, 2014      Defendant was sentenced in this
                            case to a term of six years in prison.
                            He received the midterm of two
                            years, doubled to four years based
                            on a prior strike conviction
                            (§§ 667, subds. (b)-(i), 1170.12,
                            subds. (a)-(d)), with two 1-year
                            prior prison term enhancements
                            under section 667.5(b). One of the
                            section 667.5(b) enhancements was


                                    3
                     based on a 2009 conviction in San
                     Bernardino of section 666, petty
                     theft with a prior theft-
                     related conviction. (San Bernardino County
                     Super. Ct. No. FVI802222
 April 28, 2014     Defendant filed a notice of appeal
                     from the judgment of conviction in
                     this case. (No. B255951.)
 November 4, 2014   While the B255951 appeal was
                     pending, Proposition 47 was
                     adopted by California voters and
                     took effect the following day,
                     November 5, 2014. (See Rivera,
                     supra, 233 Cal.App.4th at p. 1089.)
 July 28, 2015      In the B255951 appeal, we held
                     that we have no authority to
                     provide the relief afforded by
                     Proposition 47 in the first instance,
                     and that Diaz must apply to
                     the sentencing court for relief.
                     (People v. Diaz (2015) 238
                     Cal.App.4th 1323, 1335–1336.)
 August 18, 2015    Pursuant to Proposition 47, the San
                     Bernardino County Superior Court
                     reduced Diaz’s prior conviction of


                             4
                      section 666 to a misdemeanor and
                      resentenced him in that case to 180
                      days in county jail with credit for
                      that time. (No. FVI802222.)
 September 2, 2015   Based on the San Bernardino
                      County Superior Court order
                      granting this relief, defendant filed
                      a petition for writ of habeas corpus
                      in this court (No. B266518), seeking
                      to strike the section 667.5(b) enhancement.
 September 8, 2015   We issued an order to show cause
                      and transferred the habeas petition
                      to the Los Angeles County Superior
                      Court. We ordered the Director of
                      the Department of Corrections to
                      show cause “before the superior
                      court, when the matter is placed on
                      calendar, why petitioner’s sentence
                      enhancement under Penal Code
                      section 667.5(b) should not be
                      stricken and petitioner resentenced
                      in light of the recent reclassification of the
                      underlying crime as a misdemeanor
                      under Penal Code section 1170.18.” We
                      also established a briefing schedule for the


                              5
                            written return and the reply. (No.
                            B266518.)
   October 1, 2015         We issued our remittitur in the
                            No. B255951 appeal.
   December 3, 2015        The Los Angeles County Superior
                            Court granted Diaz’s petition for
                            writ of habeas corpus and struck
                            the one-year section 667.5(b)
                            enhancement based on the order of
                            the San Bernardino County
                            Superior Court reducing the prior
                            section 666 conviction to a misdemeanor. It
                            then resentenced defendant to five years in
                            state prison, and, based on his 2,276 days of
                            presentence credits, ordered that he be
                            released from custody.
   December 7, 2015        The People filed a notice of appeal
                            from the December 3, 2015 order
                            granting the petition for writ of
                            habeas corpus. (No. B269048.)
     “‘A judgment becomes final when the availability of an appeal and
the time for filing a petition for certiorari [with the United States
Supreme Court] have expired.’ [Citation.]” (Evans, supra, 6
Cal.App.5th at p. 903.) Rule 13.1 of the United States Supreme Court
Rules states that “[u]nless otherwise provided by law, a petition for a


                                    6
writ of certiorari to review a judgment in any case, civil or criminal,
entered by a state court of last resort . . . is timely when it is filed with
the Clerk of this Court within 90 days after entry of the judgment. A
petition for a writ of certiorari seeking review of a judgment of a lower
state court that is subject to discretionary review by the state court of
last resort is timely when it is filed with the Clerk within 90 days after
entry of the order denying discretionary review.” The 90-day period
may be extended upon a showing of good cause. (U.S. Supreme Court
Rules, rule 13.5.)
     Assuming that the 90-day period for seeking certiorari review
commenced on July 28, 2015 (the date the judgment of conviction was
affirmed in the B255951 appeal) and expired on October 26, 2015 (the
last date to seek certiorari review without an extension), the judgment
became final at the conclusion of that period. The reclassification of
the underlying felony occurred on August 18, 2015, before the
enhancement was subject to a final judgment. Since “Proposition 47
applies to Section 667.5(b) enhancements in judgments that have not
yet become final” (Evans, supra, 6 Cal.App.5th at p. 898), Diaz is
eligible for relief even though the enhancement was imposed before the
effective date of the initiative.
     The reason Diaz is eligible for relief is that “when an amendatory
statute mitigates punishment, contains no saving clause, and ‘becomes
effective prior to the date the judgment of conviction becomes final,’
then ‘[that statute] and not the old statute in effect when the
prohibited act was committed, applies.’ (Estrada, supra, 63 Cal.2d at
pp. 744, 748.)” (Evans, supra, 6 Cal.App.5th at pp. 902–903; see People
                                   7
v. Conley (2016) 63 Cal.4th 646, 656 [discussing Estrada].) This rule,
known as the Estrada rule, “is based on legislative intent. ‘When the
Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the
commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case
to which it constitutionally could apply. The amendatory act imposing
the lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting the
defendant of the act is not final.’ (Estrada, supra, 63 Cal.2d at p. 745,
italics added.) The Supreme Court noted the Legislature could indicate
a desire that a defendant be punished under the law in existence at the
time the offense was committed by enacting a saving clause spelling
out such an intent, but held ‘[i]f there is no saving clause [the
defendant] can and should be punished under the new law.’
[Citation.]” (Evans, supra, 6 Cal.App.5th at p. 903.)
     Evans applied these principles to the directive in section 1170.18,
subdivision (k) that a reclassified offense “shall be considered a
misdemeanor for all purposes.” Not only was there no “saving clause
that would indicate the voters intended offenders should continue
being punished under the old law,” the plain language of the statute
indicated that “the voters intended offenders should be able to avoid
punishment for reclassified offenses imposed through Section 667.5(b)


                                    8
enhancements, so long as they are not subject to final judgment.
Consistent with this understanding, the statute specifies it does not
apply to convictions or sentences that are subject to final judgment.
(§ 1170.18, subd. (n) [‘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’].)” (Evans, supra, 6 Cal.App.5th at p.
903.)
     Viewed in conjunction with subdivision (k) of section 1170.18,
Evans concluded that the Estrada rule authorizes a challenge to a prior
prison term enhancement based on a reclassified conviction, provided
the enhanced sentence is not subject to a final judgment. (Evans,
supra, 6 Cal.App.5th at p. 903.) Because the defendant’s sentence in
Evans was not yet final when the prior conviction was reduced to a
misdemeanor (the reduction was granted while the appeal from the
judgment was still pending), there was no risk of applying “Proposition
47 in a retroactive manner not approved by the voters.” (Id. at p. 904.)
     On the surface, this case is distinguishable from Evans in that the
reduction of Diaz’s prior conviction was obtained after (and not during)
the completion of the appeal from the judgment (No. B255951). But
the difference is not material. The essential point is that in both Evans
and this case, the order reducing the prior conviction was entered
before the enhancement in the present case had become final. (See
Evans, supra, 6 Cal.App.5th at pp. 903–904.)
     Because the judgment was not yet final when the prior conviction
was reduced to a misdemeanor, striking the enhancement is consistent


                                    9
with the intent of the California electorate. (Evans, supra, 6
Cal.App.5th at p. 904 [“the Estrada rule applies to Section 1170.18(k)
because Proposition 47 expresses the electorate’s determination that
we have punished a class of offenders too harshly”].) In keeping with
the Evans court’s determination that “the benefits of Proposition 47
‘should apply to every case to which it constitutionally could apply,’
including to pending cases in which the judgment is not yet final”
(Evans, at p. 904, quoting Estrada, supra, 63 Cal.2d at p. 745), I would
affirm the order striking the enhancement.




                                  EPSTEIN, P. J.




                                   10
