Filed 6/14/16 P. v. O’Brien CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070347
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F14906089)
                   v.

TERRY LEE O'BRIEN,                                                                       OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
         William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Franson, J. and Peña, J.
         Appellant Terry Lee O’Brien appeals his sentence following a probation violation.
Appellant contends his prior felony conviction for possession of methamphetamine under
Health and Safety Code section 113771 should have been retroactively deemed a
misdemeanor pursuant to Proposition 47. Appellant further alleges the equal protection
clause requires his prior conviction be deemed a misdemeanor. For the reasons set forth
below, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
         On or around June 1, 2013, appellant was convicted of possessing a controlled
substance under section 11377, subdivision (a), a felony. After two referrals to the
deferred entry of judgment program pursuant to Penal Code section 1000, appellant was
sentenced to three years of felony probation on November 26, 2013. These proceedings,
before the Fresno Superior Court, were identified as case number F13905301 (the 301
case).
         On or around August 20, 2013, appellant was convicted of possessing a controlled
substance for sale under section 11378, a felony. Appellant was ultimately sentenced, in
conjunction with the 301 case, to three years of felony probation. These proceedings,
also before the Fresno Superior Court, were identified as case number F13907918 (the
918 case).
         On June 23, 2014, while still on probation in the 301 and 918 cases, appellant was
stopped by police for a bicycle violation and searched pursuant to his probation terms. A
glass pipe containing methamphetamine, a digital scale, 32.53 grams of
methamphetamine, and $138 in cash were discovered. Appellant was charged, and
pleaded guilty, to possessing methamphetamine for sale under section 11378, a felony,
with an enhancement, triggered by the 918 case, for having a prior conviction within the
meaning of section 11370.2, subdivision (c). In exchange for the plea, appellant was


1        All statutory references are to the Health and Safety Code, unless otherwise noted.


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offered, and ultimately sentenced to, a term of four years and four months, served
concurrent to any sentence for violating probation in the 301 and 918 cases. These
proceedings, also before the Fresno Superior Court, were identified as case number
F14906089 (the 089 case).
       With respect to both the 301 and 918 cases, appellant’s probation was revoked
based on his charges in the 089 case. At sentencing on August 25, 2014, the court
reinstated appellant’s felony probation “under the same terms and conditions” in both the
301 and 918 cases, with updated time served credits.
       Appellant filed a timely notice of appeal in the 089 case, although the trial court
denied his request for a certificate of probable cause. By a subsequent unopposed motion
with this court, appellant’s notice of appeal was construed to cover a “challenge to the
finding that he violated probation” in both the 301 and 918 cases.
                                      DISCUSSION
       Appellant contends the court improperly reinstated his felony probation in the 301
case. Appellant argues Proposition 47 retroactively applies to his conviction in that case,
requiring that it be treated as a misdemeanor as opposed to a felony at the time of his
resentencing. Relatedly, appellant alleges an equal protection violation if such
retroactive effect is not given.
Standard of Review
       Whether a criminal statute applies retroactively is a matter of statutory
interpretation. (People v. Brown (2012) 54 Cal.4th 314, 319-320.) Matters of statutory
interpretation are issues of law considered de novo on appeal. (See e.g., In re M.W.
(2008) 169 Cal.App.4th 1, 4.) Similarly, a challenge to the constitutionality of a statute is
an issue of law which is considered de novo. (People v. Health Laboratories of North
America, Inc. (2001) 87 Cal.App.4th 442, 445.)




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Appellant Must Proceed According to the Statute to Modify His Prior Conviction
       Appellant’s primary position requests that we order a retroactive modification of
appellant’s felony conviction under section 11377, subdivision (a) for sentencing
purposes. This is not a request we can grant.
       Approved on November 4, 2014, Proposition 47 added several reformative
provisions to the Health and Safety and Penal Codes. (People v. Shabazz (2015) 237
Cal.App.4th 303, 307-308 (Shabazz).) Relevant to this appeal, Proposition 47 added
section 1170.18 to the Penal Code, providing a statutory scheme for petitions to recall
sentences, and amended section 11377, reducing the punishment for possession of certain
controlled substances from felonies to misdemeanors, provided the defendant does not
have certain enumerated prior convictions. (Pen. Code, § 1170.18; § 11377; Shabazz,
supra, 237 Cal.App.4th at pp. 308-311.) At the time Proposition 47 was approved,
appellant had already been sentenced in all three of his pending matters.
       The question in this appeal is whether the amendments to section 11377 apply
retroactively to the conviction underlying appellant’s probation violation in the 301 case
such that we have the authority to modify that prior conviction. Similar questions have
been considered by our sister court in the second district, which determined the specific
provisions of Penal Code section 1170.18, subdivisions (a) and (b), setting forth the
procedures to petition for recall of sentence, and subdivision (f), setting forth the
procedures to apply to have a completed felony conviction categorized as a misdemeanor,
demonstrate that section 11377 should not be automatically applied retroactively.
(Shabazz, supra, 237 Cal.App.4th at p. 313 [no retroactive effect on direct appeal after
sentence completed]; People v. Diaz (2015) 238 Cal.App.4th 1323, 1336 (Diaz) [no
retroactive effect on appeal from later proceeding, where initial conviction was final].)
       We see no reason to deviate from the analysis in Shabazz and Diaz. As explained
succinctly in Shabazz, “the voters never intended that Proposition 47 would automatically
apply to allow us to reduce defendant’s two felonies to misdemeanors. Rather, the voters

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set forth specific procedures for securing the lesser punishment to eligible persons such
as defendant. These are the sole remedies available under Proposition 47 for an accused
sentenced prior to its effective date.” (Shabazz, supra, 237 Cal.App.4th at p. 313.)
Appellant’s sole course of action, if he wishes to have his prior conviction modified to a
misdemeanor, is to file a petition to recall his sentence before the trial court that
sentenced him.2 (Pen. Code, § 1170.18, subd. (a).) It will then be up to the trial court to
determine whether appellant is eligible for modification and whether modification should
be granted. (Pen. Code, § 1170.18, subd. (b).)3
Appellant Cannot Show an Equal Protection Violation
       Appellant further argues that, should the changes to section 11377 be applied only
prospectively, two classes of defendants would be created which are being treated
differently under the law. We disagree.
       In response to how appellant has framed the issue, it is not the case that the
changes to section 11377 are only applied prospectively. Rather, retroactive application
is available provided defendants follow and satisfy the requirements of the statutory
scheme. Thus, appellant has failed to identify similarly situated individuals who are
being treated differently under the law. (See People v. Losa (2014) 232 Cal.App.4th 789,
793.) Moreover, “[t]he right to equal protection of the law generally does not prevent the

2       Appellant argues his case is not final and thus suitable for retroactive application
of the new law under In re Estrada (1965) 63 Cal.2d 740. We disagree. While
appellant’s probation violation appeal is not final, the proceedings leading to his initial
conviction in the 301 case were complete sometime in late 2013 or early 2014 after
appellant’s November 26, 2013, sentencing. As Diaz explained, accepting appellant’s
argument that later proceedings relying on a prior conviction means the prior conviction
is not final “stretches the Estrada rule to the breaking point.” (Diaz, supra, 238
Cal.App.4th at p. 1336.)
3     Given the required procedures, we do not consider whether appellant’s failure to
seek modification of his sentence prior to his probation violation has any bearing on
subsequent efforts by appellant to modify his probation violation sentence should
modification be granted. (See People v. Park (2013) 56 Cal.4th 782, 802.)


                                              5.
state from setting a starting point for a change in the law. ‘[T]he Fourteenth Amendment
does not forbid statutes and statutory changes to have a beginning and thus to
discriminate between the rights of an earlier and later time.’ [Citation.] The same rule
applies to changes in sentencing law that benefit defendants.” (People v. Lynch (2012)
209 Cal.App.4th 353, 359.) Thus, even if appellant had identified disparate treatment, his
argument would fail.
                                     DISPOSITION
       The judgment is affirmed.




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