Filed 2/17/16 P. v. King CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D068424

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD234016)

TERRANCE KING,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.


         Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marvin

Mizell and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

         Terrance King appeals from an order denying his petition to dismiss a prior prison

term enhancement from his sentence. He contends the prison prior sentence

enhancement must be stricken because, in May 2015, the trial court re-designated the
2007 prior felony conviction on which the prison prior enhancement was based to a

misdemeanor pursuant to Penal Code, section 1170.18, subdivision (k). (Undesignated

statutory references are to the Penal Code.) King argues the plain language of

Proposition 47 and the voters' intent requires this court to strike the prison prior

enhancement. He further argues that failure to strike the enhancement violated his right

to equal protection. We reject King's arguments and affirm.

       King also filed a petition for writ of habeas corpus (In re Terrance King

(D069184)), which we ordered considered with this appeal. We deny the petition by

separate order. We also deny King's motion to consolidate the appeal with the petition.

                             PROCEDURAL BACKGROUND

       In August 2011, King pleaded guilty to evading an officer with reckless driving

and admitted to a strike prior and two prison priors. One of those prison priors pertained

to a 2007 felony conviction for possession of a controlled substance in violation Health

and Safety Code, section 11350, subdivision (a). The court sentenced King to eight years

in prison, which consisted of six years for the evading offense and two one-year terms for

the prison prior enhancements.

       In 2015, King filed a petition for writ of habeas corpus in the superior court to

reduce his 2007 possession of a controlled substance conviction to a misdemeanor under

section 1170.18. King also requested that the court strike the one-year prison prior

enhancement based on the 2007 conviction from his current sentence in the evading an

officer case. The trial court granted King's request to re-designate the 2007 conviction to

a misdemeanor, but denied his request to strike the prison prior sentence enhancement.

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                                       DISCUSSION

                               I. Prison Prior Enhancement

       King argues the prison prior enhancement based on his 2007 possession of a

controlled substance conviction must be stricken because that conviction was reduced to

a "misdemeanor for all purposes" under section 1170.18, subdivision (k). Specifically, he

contends the plain language of section 1170.18 and the voters' intent in passing

Proposition 47 establish that a prior prison enhancement cannot be based on a conviction

that has been re-designated a misdemeanor. He also contends the trial court has

jurisdiction under section 1170.18 to strike the prison prior enhancement.

A. General Legal Principles

       King's claim raises an issue of statutory interpretation. "[S]tatutory interpretation

is a question of law [citation], and appellate courts review such issues independently."

(People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1091.) "Measures adopted by the

voters through the initiative process . . . are subject to the ordinary rules and canons of

statutory construction." (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach

(2001) 86 Cal.App.4th 534, 549.)

       Section 667.5, subdivision (b) provides for a sentence enhancement for felony

prison priors. (People v. Torres (2011) 198 Cal.App.4th 1131. 1149.) Specifically, that

section provides, "where the new offense is any felony for which a prison sentence . . . is

imposed . . . , in addition and consecutive to any other sentence therefor, the court shall

impose a one-year term for each prior separate prison term . . . for any felony." (§ 667.5,

subd. (b).) "Sentence enhancements for prior prison terms are based on the defendant's

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status as a recidivist, and not the underlying criminal conduct, or the act or omission,

giving rise to the current conviction." (People v. Gokey (1998) 62 Cal.App.4th 932, 936.)

       On November 4, 2014, California voters approved Proposition 47, which became

effective the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The

initiative reclassified certain theft- and drug-related crimes from felonies to

misdemeanors unless they were committed by ineligible defendants. (Id. at p. 1091.) It

also established a procedure for qualifying defendants to petition for recall and

modification of their prior convictions and sentences. (§ 1170.18, subd. (a).)

       Under the initiative's resentencing and reclassification mechanism, persons who

have completed felony sentences for offenses that would be misdemeanors under

Proposition 47 may file an application to have their felony convictions "designated as

misdemeanors." (§ 1170.18, subds. (f)-(h).) Subdivision (k) of section 1170.18 provides

that convictions that are resentenced or designated as a misdemeanor "shall be considered

a misdemeanor for all purposes," except for purposes relating to ownership, possession

and custody of firearms.

B. Analysis

       King's arguments are nearly identical to those rejected by this Court in People v.

Valenzuela (Feb. 3, 2016, D066907) ___ Cal.App.4th ___ [pp. 22-25] (Valenzuela). In

that case, the Court considered defendant's request to strike a prison prior enhancement

based on a felony conviction that had been reduced to a misdemeanor under section

1170.18 after the imposition of sentence on the current offense. (Valenzuela, supra, at

___ [pp. 20, 22].) The defendant argued that section 1170.18, subdivision (k), " 'suggests

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the electorate wanted eligible offenders like [her] to be shielded from the collateral

consequences of prior prison terms stemming from felonies that the law now recognizes

as misdemeanors.' " (Id. at p. 22.) This Court rejected the argument, concluding

"[s]ection 1170.18 provides a mechanism for reducing felony convictions to

misdemeanors, but contains no procedure for striking a prison prior if the felony

underlying the enhancement has subsequently been reduced to a misdemeanor." (Ibid.)

The Court reasoned that "[n]othing in th[e] language [of section 1170.18, subdivision (k)]

or the ballot materials for Proposition 47 indicates that this provision was intended to

have the retroactive collateral consequences that [the defendant] advances. To the

contrary, . . . the procedures set forth in section 1170.18 that must be followed to obtain

the resentencing and reclassification benefits of Proposition 47 indicate the electorate's

intent for a specific, limited prospective application of the relief available under the new

law." (Ibid.)

       Like King, the defendant in Valenzuela, relied on People v. Park (2013) 56

Cal.4th 782, 796 (Park) and People v. Flores (1979) 92 Cal.App.3d 461 (Flores) to

support her assertion that her sentence must be reduced under section 1170.18,

subdivision (k). In Park, our high court noted that "[w]hen the court properly exercises

its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment,

and its consequences, are not appropriate for that particular defendant. . . . [B]y virtue of

the court's proper exercise of discretion, neither is such defendant a member of the class

of criminals convicted of a prior serious felony whom the voters intended to subject to

increased punishment for a subsequent offense." (Park, at pp. 801-802.) In Flores, the

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court considered a 1975 statutory amendment reducing marijuana possession to a

misdemeanor and held that it was error to use a felony marijuana possession conviction to

impose a sentence enhancement. (Flores, at pp. 470, 474.)

       Similarly to the defendant in Valenzuela, King's reliance on Park and Flores is

misplaced because the felony convictions that served as the basis for sentence

enhancements in those cases were reduced to misdemeanors before the defendant

committed and was convicted of the offense subject to the current appeal. (Valenzuela

[Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 23].) In the case before us, there is no

dispute that King's drug offense conviction was reduced to a misdemeanor after he

committed and was sentenced for the current evading an officer offense. Thus, Park and

Flores are inapplicable. Moreover, Park supports our conclusion as the Supreme Court

stated in that case that "there is no dispute that . . . defendant would be subject to the

[sentence] enhancement had he committed and been convicted of the present crimes

before the court reduced the earlier offense to a misdemeanor." (Park, supra, 56 Cal.4th

at p. 802, italics added.)

       King has not pointed to anything in the language of section 1170.18 or Proposition

47 ballot materials that overcomes the presumed prospective effect of any provision

added to the Penal Code. (§ 3.) Further, King has not pointed to any authority

convincing us to depart from the reasoning and conclusion in Valenzuela that section

1170.18 does not require the court to strike a prison prior enhancement that is based on a

felony conviction that was reduced to a misdemeanor after the defendant committed and

was convicted of the current offense.

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                                 II. Equal Protection Claim

       King argues that failure to strike the one-year sentence enhancement for the

prison prior which was re-designated a misdemeanor violates his right to equal protection

under the federal and state constitutions. He argues that "no rational basis can justify

[his] exclusion from the benefits of Proposition 47, since he meets the requirements for

relief and only differs from other possession offenders by the fact that his criminal

judgment was issued prior to the passage of the initiative." This argument was rejected in

Valenzuela [Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 25]. We reject it for the

same reason that " ' "[t]he Legislature properly may specify that . . . statutes are

prospective only, to assure that penal laws will maintain their desired deterrent effect by

carrying out the original prescribed punishment as written." [Citations.] The voters have

the same prerogative." ' " (Ibid.) Accordingly, failure to strike the prison prior

enhancement does not constitute an equal protection violation. (Ibid.)

                                       DISPOSITION

       The order is affirmed.

                                                                               McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


IRION, J.




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