Filed 5/16/16 P. v. Manson CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B266972

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. Nos. BA268009 &
         v.                                                          BA239864)

BRYAN MANSON,

         Defendant and Appellant.




         APPEAL from postjudgment orders of the Superior Court of Los Angeles County,
David M. Horwitz, Judge. Reversed and remanded.
         CT Turney and Pavithra Menon for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assitant Attorney
General, Lance E. Winters, Senior Assitant Attorney General, Noah P. Hill and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ________________________
       Bryan Manson suffered felony convictions in 2002 and 2004 for violating Health
and Safety Code section 11350, subdivision (a), possession of a controlled substance
(Los Angeles Superior Court case nos. BA239864 & BA268009). Both convictions were
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subsequently dismissed pursuant to Penal Code section 1203.4. On May 19, 2015
Manson applied pursuant to section 1170.18, subdivision (f), to reclassify the two felony
convictions as misdemeanors. The superior court denied the applications, ruling it lacked
jurisdiction because the cases had previously been dismissed. Manson argues the trial
court erred in concluding dismissal of a felony count under section 1203.4 precludes that
felony from later being reclassified a misdemeanor under section 1170.18,
subdivision (f), and the Attorney General concedes “appellant appears to be correct.” We
agree, reverse the orders denying the applications and remand for the superior court to
consider the applications on their merits.
                                      DISCUSSION
       1. Reclassification of Felony Convictions as Misdemeanors Under Proposition 47
       Proposition 47, the Safe Neighborhoods and Schools Act, effective November 5,
2014, requires a misdemeanor sentence instead of a felony sentence for certain drug
possession offenses; requires a misdemeanor sentence instead of a felony sentence for the
crimes of petty theft, receiving stolen property and forging/writing bad checks when the
amount involved is $950 or less; and allows a felony sentence (excluding a defendant
from a misdemeanor sentence) for the specified crimes if a defendant has a prior
conviction listed under section 667, subdivision (e)(2)(C)(iv), or a prior conviction for an
offense requiring sex offender registration under section 290. (See People v. Shabazz
(2015) 237 Cal.App.4th 303, 308 & fn. 2; People v. Rivera (2015) 233 Cal.App.4th 1085,
1091.) As amended by Proposition 47, Health and Safety Code section 11350 now
provides that a violation of that section is a misdemeanor unless the defendant has one or
more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv)
—which lists serious and violent felonies that are sometimes referred to as “‘super strike

1      Statutory references are to the Penal Code unless otherwise indicated.
                                             2
offenses’”—or for an offense that requires the defendant to register as a sex offender
under section 290, subdivision (c). (Rivera, at p. 1092.)
       Proposition 47 also created a new resentencing/reclassification provision. Under
section 1170.18 a person “currently serving” a felony sentence for an offense that is now
a misdemeanor under Proposition 47 may petition for a recall of that sentence and request
resentencing in accordance with the statutes that were added or amended by
Proposition 47. (§ 1170.18, subd. (a).) Before resentencing an otherwise eligible
petitioner, however, the court must determine whether resentencing would pose an
unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) The petitioner is
subject to a new, one-year parole term unless the court releases the petitioner from parole
as part of its resentencing order. (§ 1170.18, subd. (d).)
       Section 1170.18 also provides that “[a] person who has completed his or her
sentence for a conviction” that would now be a misdemeanor under Proposition 47 may
file an application with the trial court to have the felony conviction or convictions
“designated as misdemeanors.” (§ 1170.18, subd. (f).) Section 1170.18, subdivision (k),
provides that “[a]ny felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered
a misdemeanor for all purposes, except that such resentencing shall not permit that person
to own, possess, or have in his or her custody or control any firearm or prevent his or her
conviction under [§§ 29800 to 29875, which contain prohibitions on firearm access by
persons with certain criminal convictions].”
       2. Dismissals Under Section 1203.4
       Section 1203.4, subdivision (a)(1), provides that a defendant placed on probation
who fulfills the conditions of probation for the entire period may withdraw his or her
guilty plea or plea of no contest and enter a not guilty plea, or, if convicted following a
trial, the court must set aside the guilty verdict, and “the court shall thereupon dismiss the
accusations or information against the defendant . . . .” With certain exceptions the effect
of the dismissal is that the defendant “shall . . . be released from all penalties and

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disabilities resulting from the offense of which he or she has been convicted . . . .”
(§ 1203.4, subd. (a)(1).) “However, in any subsequent prosecution of the defendant for
any other offense, the prior conviction may be pleaded and proved and shall have the
same effect as if probation had not been granted or the accusation or information
dismissed.” (Ibid.) In addition, dismissal pursuant to this section “does not permit a
person to own, possess, or have in his custody or control any firearm” or prevent his
conviction under provisions of the Penal Code prohibiting firearm access by individuals
convicted of specified offenses. (§ 1203.4, subd. (a)(2).)
       Although a dismissal pursuant to section 1203.4 restores certain rights and
removes certain disabilities, this statutory language plainly limits the effect of the
dismissal. “[T]he conviction may be treated as if it were not a conviction for most
purposes” (People v. Guillen (2013) 218 Cal.App.4th 975, 996), but it “does not, strictly
speaking, ‘expunge’ the conviction, nor render the conviction ‘a legal nullity.’” (Ibid.;
accord, People v. Frawley (2000) 82 Cal.App.4th 784, 791.) As courts have observed,
“[t]he limitations on this relief are numerous and substantial, including other statutes
declaring that an order under section 1203.4 is ineffectual to avoid specified
consequences of a prior conviction.” (Frawley, at p. 791 [citing statutes including Veh.
Code, § 13555 (revocation or suspension of privilege to drive a motor vehicle); Bus. &
Prof. Code, § 490 (suspension or revocation of professional license)]; see People v.
Vasquez (2001) 25 Cal.4th 1225, 1230 [“California decisions have established that the
‘penalties and disabilities’ resulting from conviction, from which a probationer may be
released pursuant to Penal Code section 1203.4, do not include nonpenal restrictions or
qualifications imposed for public protection”].) Perhaps most significantly, as just
discussed, section 1203.4 provides “‘in any subsequent prosecution of the defendant for
any other offense, the prior conviction may be pleaded and proved . . . .’” (See Frawley,
at pp. 791-792 [describing this limitation as “sweeping”].)




                                              4
       3. The Trial Court Retains Jurisdiction To Reclassify a Felony Conviction That
          Has Been Dismissed Under Section 1203.4
       Our colleagues in the Sixth District recently considered the precise issue presented
by Manson’s appeal and concluded the trial court retains jurisdiction to reclassify a
felony conviction that has been dismissed under section 1203.4. (People v. Tidwell
(2016) 246 Cal.App.4th 212.) We fully agree with their analysis and conclusion.
       Under the plain meaning of section 1170.18, subdivision (f), Manson was entitled
to apply for Proposition 47 relief: He was convicted in 2002 and 2004 of felony
violations of Health and Safety Code section 11350, subdivision (a). Those felonies
would have been misdemeanors had Proposition 47 been in effect at the time of the
offenses. Having fulfilled the conditions of probation for the prescribed term, Manson
has completed his sentence for those convictions within the meaning of section 1170.18,
subdivision (f). (People v. Tidwell, supra, 246 Cal.App.4th at p. 218; see People v. Elliot
(2005) 37 Cal.4th 453, 478 [“‘In interpreting a voter initiative, we apply the same
principles that govern our construction of a statute. [Citation.] We turn first to the
statutory language, giving the words their ordinary meaning. [Citation.] If the statutory
language is not ambiguous, then the plain meaning of the language governs.’”]; People v.
King (2006) 38 Cal.4th 617, 622 [“‘[i]f the plain, commonsense meaning of the statute’s
                                                        2
words is unambiguous, the plain meaning controls’”].)



2       Because probation has been described in other contexts as “not a sentence even if
it includes a term in the county jail as a condition” (see, e.g., People v. Daniels (2003)
106 Cal.App.4th 736, 742), there is some question whether a probationer can petition for
relief under section 1170.18, subdivision (a), or must wait until he or she has completed
probation to seek reclassification under section 1170.18, subdivision (f). (See Couzens &
Bigelow, Proposition 47, “The Safe Neighborhoods and Schools Act” (Feb. 2016)
Persons Who May Petition For Relief, § IV.A.4, at p. 35.) However that question may be
resolved, there is nothing in Proposition 47 to suggest an individual such as Manson who
has been convicted of a felony and completed his term of probation is not entitled to seek
reclassification of that conviction as a misdemeanor. (Id. at p. 36; see People v. Davis
(2016) 246 Cal.App.4th 127 [rejecting argument defendant on probation is entitled to an
unconditional reduction of his felony conviction without petitioning for relief under
                                               5
       Moreover, nothing in the language of section 1170.18 indicates an otherwise
eligible individual who has obtained a dismissal of his or her felony conviction under
section 1203.4 is precluded from seeking reclassification of that conviction, which, as
discussed, continues to carry potentially serious adverse consequences. Indeed,
Proposition 47 itself cautions against such a cramped interpretation of its text: “This Act
shall be liberally construed to effectuate its purposes.” (Proposition 47, § 18, Couzens &
Bigelow, Proposition 47, “The Safe Neighborhoods and Schools Act” (Feb. 2016)
Appendix I: Text of Proposition 47, at p. 116.) One of those purposes is “maximize
alternatives for nonserious, nonviolent crime.” (Proposition 47, § 2, Couzens & Bigelow,
at p. 102.) To preclude relief under section 1170.18, subdivision (f), for an eligible
individual who has successfully completed probation and obtained a section 1203.4
dismissal would frustrate that intent. (See People v. Tidwell, supra, 246 Cal.App.4th at
p. 219.)
       As the Tidwell court explained, case law considering a closely analogous situation
strongly supports this conclusion. In Meyer v. Superior Court (1966) 247 Cal.App.2d
133 the trial court had denied an application pursuant to section 17, subdivision (b)(3), to
declare a felony conviction for writing checks drawn on insufficient funds (§ 476a) a
misdemeanor, ruling it lacked the power to do so. (Meyer, at p. 136.) The Meyer court
ordered a peremptory writ of mandate requiring the superior court to hear the motion on
its merits, concluding dismissal of charges under section1203.4 did not preclude relief
under section 17: “The expungement of the record under section 1203.4 is also a reward
for good conduct and has never been treated as obliterating the fact that the defendant has
been convicted of a felony. . . . [¶] Therefore, a conviction which has been expunged
still exists for limited purposes, including, among others, evidentiary use at a later trial
[citation] and the denial of the right to carry a concealable weapon [citation].
Consequently, petitioner should not be barred from pursuing a more suitable remedy,


section 1170.18; “persons on probation for a felony conviction are ‘currently serving a
sentence’ for purposes of Proposition 47”].)
                                               6
particularly where the final decision as to whether he is worthy rests within the sound
                                                      3
discretion of the superior court.” (Id. at p. 140.)
       The reasoning of the Meyer court applies with equal force here. Just as a court
retains jurisdiction following a section 1203.4 dismissal to reduce a probationer’s felony
conviction to a misdemeanor pursuant to section 17, subdivision (b)(3), it similarly
retains jurisdiction to grant relief, if otherwise warranted, under section 1170.18,
subdivision (f).
                                       DISPOSITION
       The postjudgment orders denying Manson’s applications to reclassify his prior
felony convictions for possession of a controlled substance as misdemeanors are reversed
and the cause remanded for the superior court to consider the applications on their merits.




                                                      PERLUSS, P. J.


       We concur:




              ZELON, J.




              BLUMENFELD, J.*


3      When the superior court indicated it had no jurisdiction and intended to deny
Manson’s applications, his counsel asked for a continuance to permit supplemental
briefing on the issue and specifically noted that Meyer v. Superior Court, supra,
247 Cal.App.2d 133 appeared to support his argument that the matter was properly before
the court. The request was denied.
*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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