Filed 5/21/15 P. v. Antoine CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B250778

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA084846)
         v.

PAUL ERIC ANTOINE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Alan B. Honeycutt, Judge. Affirmed in part, reversed in part and remanded with
directions to resentence.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Tannaz
Kouhpainezhad, for Plaintiff and Respondent.


                                           ______________________
       Defendant Paul Eric Antoine appeals from his conviction of second degree
burglary.1 He contends: (1) he was denied effective assistance of counsel; (2) it was
prejudicial error to admit a surveillance video into evidence without adequate foundation;
(3) selection of the upper term was an abuse of discretion; and (4) under newly enacted
Proposition 47, the felony burglary conviction must be reduced to a misdemeanor and the
matter remanded for resentencing. We affirm the judgment of conviction, but remand to
the superior court with directions to resentence defendant.

                                         FACTS

A.     People’s Case

       Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357-358), the evidence relating to the single count of which defendant
was convicted established that on April 16, 2012, a number of surveillance cameras were
spread throughout the Vons/Safeway located on Redondo Beach Boulevard in Gardena.
The store had multiple entrances and exits, including one known as the “cart entrance,”
which was intended solely to be used for pushing empty carts into the store, not customer
egress. To exit the store through the cart entrance, a person would have to stoop under a
metal rail.
       At about 7:00 p.m. that day, store employee Dora Palomino was in the store
parking lot, walking towards her car, when she heard a woman saying, “hurry up.”
Looking in the direction from which the voice was coming, Palomino saw April Barnes
in the driver’s seat of a green Ford Tempo; defendant was taking loose items (i.e. not


1      Defendant was charged by information with three counts of burglary, occurring on
three dates in April and May 2012; prior conviction enhancements were alleged pursuant
to the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a) – (d), 667, subds. (b) –(i)) and
Penal Code section 667.5, subdivision (b). A jury found defendant guilty of the burglary
charged in count one, but could not agree on counts two and three. After the People
dismissed the remaining counts, the trial court found true the alleged priors. We discuss
the details of defendant’s eight-year sentence later in this opinion. He timely appealed.
       All future undesignated statutory references are to the Penal Code.

                                             2
bagged) from a shopping cart full of meat, seafood and liquor, and loading them into the
back seat of that car.2 Palomino thought she had seen defendant in the store on one or
two prior occasions. On this occasion, he was wearing a brown hooded sweatshirt with
the letters “CSUDH” on it. Suspecting the items defendant was unloading from the cart
had been stolen from the store, Palomino moved closer. When she was about six feet
away, Palomino made eye contact with defendant and asked what he was doing.
Defendant said he had paid for the things; Barnes cursed at Palomino. Defendant
finished emptying the cart, then got into the passenger seat of Barnes’s car. As Barnes
drove away, Palomino took a photograph of the car’s license plate. Palomino
immediately called the store to report the incident, but when no one answered the phone,
she went home. The next day, Palomino reported the incident to store manager Steve
Parsons. Palomino spoke to a police officer that day and, along with Parsons and the
officer, viewed video taken by the store’s surveillance cameras the evening before.
Palomino pointed out defendant in the video. When Palomino saw defendant with a full
shopping cart at the cart entrance a few days later, she alerted Parsons. On this second
occasion, defendant left the store without the shopping cart.
       After speaking to Palomino on April 17, Parsons reviewed the surveillance video
from the evening before. When he saw video of a man ducking under the cart entrance,
Parsons back-tracked so that he could follow that man’s progress as he filled a shopping
cart with about $800 worth of merchandise and took the full cart out of the store through
the cart entrance without paying for the goods.3 Parsons described the man as between


2      Palomino identified Barnes and defendant from photographic line-ups (“six-
packs”) shown to her in June 2012. She also identified defendant at the preliminary
hearing and at trial.

3       Asked how he arrived at the $800 valuation of the stolen goods, Parsons explained
that after the April 16 incident, he put additional security measures in place to prevent
anyone from taking a cart out of the store through the cart entrance. A few days later,
Parsons was told that a man had abandoned a cart full of merchandise after
unsuccessfully trying to take it out through the cart entrance. Parsons reviewed
surveillance video of this event and recognized the same man he had seen in the video of

                                             3
50 and 70 years old; wearing a maroon colored, hooded sweatshirt with the letters “DH”
on it. Parsons viewed the video about 10 times on the store monitor where the image was
clearer than on the courtroom monitor. Parsons provided a copy of the surveillance video
to the Gardena police. Over defendant’s foundation objection, the video was introduced
into evidence as People’s Exhibit No. 1 and played for the jury.
      Gardena Police Detective Mike Sargent was assigned to investigate several
burglaries at the Vons in Gardena. Sargent created a six-pack which included April
Barnes, the registered owner of the green Ford Tempo Palomino saw in the parking lot on
April 16. After Palomino identified Barnes, Sargent ascertained that Barnes and
defendant had the same address in Compton; a man in his early to mid 20’s with the same
name as defendant was also associated with that address. Sargent looked at photographs
of the two men. Because only defendant fit the description of the middle aged suspect
(and looked like the person Sargent saw in the April 16 surveillance video), Sargent
included only defendant’s photograph in the six-pack which he showed Palomino the
next day. Palomino identified defendant as the man she saw loading items into Barnes’s
car on April 16. Sargent went to the Compton address several times to find the car and
Barnes, but was unsuccessful.

B.    Defense Case

      Defendant’s girlfriend, Amanda Zilton, testified that in April and May 2012, she
and defendant were living together in an apartment in Los Angeles. On Wednesday,
April 16, defendant went to Food For Less at about 8:00 or 9:00 a.m. and returned home
at about 9:00 or 10:00 a.m.; at 10:30 a.m., Zilton accompanied defendant to a doctor’s
appointment. Zilton and defendant spent the rest of that day and evening at home with
Zilton’s children. Zilton never met April Barnes, but knew that defendant and Barnes
had a 25-year-old son together.


the April 16 incident. Parsons determined that the value of the items in the abandoned
cart was $800, from which he deduced that similar items in the cart the man successfully
removed from the store on April 16 had about the same value.

                                            4
       Defendant testified that he had never been to the Vons where the thefts occurred.
He was about 5’7” or 5’8”. In April 2012, defendant was 50 years old and weighed about
245 pounds. A shoulder injury sustained in 2003 makes it impossible for defendant to
push a shopping cart. Barnes is the mother of defendant’s 25-year-old son, also named
Paul Eric Antoine (Antoine Jr.). Barnes was pregnant with Antoine Jr. when defendant’s
relationship with her ended and defendant did not speak to her for 25 years (in 2004 or
2005, he wrote her one letter while she was in prison). Defendant believed Antoine Jr.
lived with Barnes at the address in Compton, but defendant had never lived there.
Defendant was also estranged from Antoine Jr. as a result of threats he made when
defendant refused to give him money. Antoine Jr. is a gang member and often wears a
Cal State Dominguez Hills (CSDH) sweatshirt that is associated with his gang. In July
2012, Barnes and Antoine Jr. called defendant “out of the blue,” told him they had
committed “some robberies in Gardena” and that defendant had a court date in July 2012.
Not knowing what they were talking about, defendant hung up on them. When defendant
was arrested in February 2013, he learned that he was being charged with several Vons
burglaries. Defendant had prior convictions for robbery (1986), false impersonation
(1997) and assault with a deadly weapon (1997).

                                      DISCUSSION

A.     Defendant Was Not Denied Effective Assistance of Counsel

       Defendant contends he was denied the effective assistance of counsel as the result
of the trial court’s denial of defense counsel’s request to be relieved because of a
“conflict of interest.” He argues that counsel’s apparent disbelief in his innocence and
concerns that complaints had been filed against her by defendant’s representatives
“undoubtedly created a conflict of interest for counsel.” We find no error.4

4     In a separate Petition for Habeas Corpus Relief, defendant argues that his trial
counsel was ineffective for the same reasons set forth in the appeal. By separate order we
summarily deny defendant’s habeas petition.


                                              5
       Concomitant with the constitutional right to effective assistance of counsel, a
criminal defendant has the right to representation that is free from conflicts of interest.
(People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin); People v. Bonin (1989) 47 Cal.3d
808, 833-834 (Bonin).) Thus, conflict of interest claims are a category of ineffective
assistance of counsel claims. (Doolin, at p. 417.) As with any ineffective assistance of
counsel claim, to prevail “generally requires a defendant to show (1) counsel’s deficient
performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the
result of the proceeding would have been different. [Citations.] In the context of a
conflict of interest claim, deficient performance is demonstrated by a showing that
defense counsel labored under an actual conflict of interest ‘that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.’ [Citations.]
‘[I]nquiry into actual conflict [does not require] something separate and apart from
adverse effect.’ [Citation.] ‘An “actual conflict,” for Sixth Amendment purposes, is a
conflict of interest that adversely affects counsel’s performance.’ [Citation.]” (Id. at
pp. 417-418, italics added.)5
       Once advised of the possibility of a conflict of interest on the part of defense
counsel, the trial court must inquire into the matter and act in response to the information
it gathers. If the trial court determines there is no conflict or the risk of conflict is too
remote, it may decline to take any action at all. (Doolin, supra, 45 Cal.4th at p. 837.)
Failure to inquire into the possibility of a conflict of interest or to adequately act in
response to information revealed by such inquiry is known as Wood error (see Wood v.
Georgia (1981) 450 U.S. 261, 272). “To obtain reversal for Wood error, the defendant
need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must
show that an actual conflict of interest existed and that that conflict adversely affected

5      This should be distinguished from challenges to rulings on counsel’s motion to
withdraw, which are reviewed for abuse of discretion. (See Lempert v. Superior Court
(2003) 112 Cal.App.4th 1161, 1173 [issuing a peremptory writ directing the trial court to
vacate its order denying trial counsel’s motion to withdraw as attorney of record for
criminal defendant, and to enter a new order granting the motion].)


                                                6
counsel’s performance. [Citations.]” (Bonin, supra, 47 Cal.3d at p. 837; People v. Hardy
(1992) 2 Cal.4th 86, 135, 139 (Hardy) [relief for conflict of interest is premised on actual
conflict, not the mere appearance of conflict].)
       Conflicts between a criminal defendant and his or her counsel arise in various
factual settings. Most common are situations in which counsel’s efforts on the
defendant’s behalf are threatened by counsel’s responsibilities to another client, a third
person or by counsel’s own interest. (People v. Jones (1991) 53 Cal.3d 1115, 1138
(Jones), citing Bonin, supra, 47 Cal.3d. at p. 835.) But “a conflict may exist ‘whenever
counsel is so situated that the caliber of his services may be substantially diluted.’
[Citation.]” (Hardy, supra, 2 Cal.4th at p. 135.)
       In Jones, supra, our Supreme Court held that defense counsel’s fear that his or her
representation of the defendant may lead to discipline by the State Bar did not create a
conflict of interest: “It would appear that fear of investigation by the State Bar would
inspire an attorney to perform more, rather than less, competently.” (Jones, supra,
53 Cal.3d at p. 1135.) Similarly, in Hardy, supra, the court found no conflict of interest
arose from the criminal defendant’s federal court action against defense counsel for
negligent misrepresentation in the still pending criminal matter. The Hardy court
observed: “Although the possibility of a conflict was posed on these facts, we echo the
sentiments of the Eighth Circuit Court of Appeals: ‘We recognize the danger of any
holding implying that defendants can manufacture conflicts of interest by initiating
lawsuits against their attorneys. [Citation.] A patently frivolous lawsuit brought by a
defendant against his or her counsel may not, alone, constitute cause for appointment of
new counsel. Trial judges must be wary of defendants who employ complaints about
counsel as dilatory tactics or for some other invidious motive.’ [Citations.]” (Hardy,
supra, 2 Cal.4th at p. 138, italics omitted.)
       It is also well settled that “the adequacy of legal representation is not measured by
the subjective or objective belief of trial counsel as to a defendant’s innocence or the
viability of certain defenses.” (People v. Corona (1978) 80 Cal.App.3d 684, 723.)
Rather, trial counsel has a duty to determine the availability of any defense to the charges

                                                7
based on investigation of facts and research of law, not personal impression or belief.
(Ibid.) In Jones, the court distinguished between a conflict of interest and conflicting trial
strategies. (53 Cal.3d at p. 1138.) The defendant in Jones believed he could convince the
jury that there was a reasonable doubt that he committed the two charged murders;
defense counsel believed that a mental state defense would be better. “Because this
difference of opinion on strategy did not create a situation in which counsel’s efforts on
defendant’s behalf were threatened by ‘responsibilities to another client or a third person
or by his own interests’ [citation], there was no conflict of interest.” (Ibid.)
       This case is similar to Jones. Here, at a hearing on April 18, 2013, defendant
reluctantly agreed to waive time so that defense counsel would have an opportunity to
review surveillance tapes obtained from the prosecutor that day. A month later, on May
15, defense counsel declared a “conflict of interest.” Following an unreported discussion
with counsel, the trial court stated:
               “We’ve had an extensive conversation. [Defense counsel] has indicated the
       current difficulties and has explained her request to be relieved. In essence,
       [defendant] has had representatives of his own personal interests in this case
       contact [defense counsel] indicating that complaints have been filed against her for
       conduct in this case. There have been documents that have been filed by
       [defendant]. . . .
               “. . . I am not relieving [defense counsel] in this case. She’s the attorney of
       record. She’s a very experienced, well respected practitioner. The court is not
       accepting any documents that are filed individually by [defendant] in this matter or
       any other representatives of [defendant’s] except [defense counsel] or the counsel
       of record in this case.
               [Defense counsel] is the attorney in this case. She’s the one that directs the
       trial tactics; directs the investigation of this case. She is the person that is the
       attorney, not [defendant.]”

At the same hearing, defense counsel requested color versions of the still photographs
taken from the surveillance video by the prosecution; defense counsel explained color
photographs were necessary to support defendant’s contention that he was not the person
in the video. The trial court responded:




                                               8
               “If you, as the trial counsel, feel that it is necessary to have . . .
       enhancements provided . . . I’ll take that into consideration if you submit an order
       for an appointment of a lab or an expert.
               “But, again, you are the trial counsel. You are the person making the
       decisions. If you’re submitting a declaration to this court, I intend and I would
       expect you have made an independent decision on your own and that you feel it is
       necessary for a defense of [defendant] for the expenditure or appointment of an
       expert for that purpose. It’s not [defendant] making the tactical decision in the
       trial.”

It does not appear from the appellate record that defendant subsequently sought a defense
photography expert.6 Even though counsel had voiced to the trial court her concerns
about a conflict, defendant himself never made a Marsden motion seeking new counsel.7
       This record demonstrates that the trial court inquired into the alleged conflict of
interest between defendant and his trial attorney, and ascertained it was based on
(1) complaints filed against defense counsel by defendant’s representatives and
(2) counsel’s belief that it was defendant in the surveillance videos notwithstanding
defendant’s steadfast denial. The trial court correctly found these facts did not create a
conflict of interest. Under Jones and Hardy, we agree.

B.     The Surveillance Video Was Properly Admitted

       Defendant contends the trial court prejudicially erred in admitting into evidence
People’s Exhibit. No. 1, which was the April 16 surveillance video, over his foundation
objections. He argues Parsons’s testimony was insufficient to establish that the video
“was an accurate depiction of what was going on at the store [at the relevant time].” We
find no error.


6      Immediately prior to the beginning of voir dire on May 30, defendant’s desire to
see the surveillance video for himself was discussed. Because defense counsel did not
have a video player, it was agreed that defendant would view the video on the
prosecution’s equipment. Nothing in the record suggests that appellant was not given the
opportunity to view the video.

7      People v. Marsden (1970) 2 Cal.3d 118.

                                             9
       Challenges to rulings regarding the admission of evidence are reviewed for abuse
of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) Under that
standard, we conclude the trial court did not err in admitting the challenged surveillance
video into evidence over defendant’s foundation objection.
       For evidentiary purposes, a photograph is a writing which, like any other writing,
must be authenticated before it may be admitted into evidence. (Goldsmith, supra,
59 Cal.4th at p. 268.) Authentication requires evidence sufficient to support a finding
that the photograph is a fair and accurate representation of the scene. (Goldsmith, supra,
at p. 267; see Evid. Code, § 1400 [“Authentication of a writing means (a) the introduction
of evidence sufficient to sustain a finding that it is the writing that the proponent of the
evidence claims it is or (b) the establishment of such facts by any other means provided
by law.”].) The burden is on the proponent of the evidence to make this prima facie
showing. (Ibid.)
       Under Evidence Code section 1400, subdivision (b), authentication may be
supplied by a statutory presumption. (Goldsmith, supra, 59 Cal.4th at p. 268.) For
example, a “printed representation of images stored on a video or digital medium” is
presumed authentic under Evidence Code section 1553, subdivision (a) which reads:
              “A printed representation of images stored on a video or digital medium is
              presumed to be an accurate representation of the images it purports to
              represent. This presumption is a presumption affecting the burden of
              producing evidence. If a party to an action introduces evidence that a
              printed representation of images stored on a video or digital medium is
              inaccurate or unreliable, the party introducing the printed representation
              into evidence has the burden of proving, by a preponderance of evidence,
              that the printed representation is an accurate representation of the existence
              and content of the images that it purports to represent.”

Evidence Code section 1552, subdivision (a) provides a similar presumption for a
“printed representation of computer information or a computer program.” These
presumptions apply to photographs and video taken by surveillance cameras. (People v.
Peyton (2014) 229 Cal.App.4th 1063 (Peyton).) In Peyton, the victim’s ATM card and
address book in which her ATM identification number was recorded were stolen from her

                                              10
car; later that day, the defendant used the victim’s ATM card to withdraw $300. The
ATM system videotaped the transaction and purged the video but saved still photographs
extracted from the video. About three months after the burglary, a detective asked to see
the photographs. The bank’s fraud investigator copied the photos and forwarded them to
the detective. At trial, the bank’s investigator testified that her job duties required that
she know how the ATM system worked and how to extract the ATM photos. The Peyton
court rejected the defendant’s hearsay and lack of business records foundation challenges
to admission of the ATM photographs. The court reasoned that the Evidence Code
sections 1552 and 1553 presumptions supported the trial court’s finding that the
photographs were accurate representations of the ATM transaction and the bank
investigator possessed sufficient knowledge to explain how Wells Fargo maintained and
used the photos in the regular course of business to make the photos admissible as
business records. (Id. at p. 1075.)
       Here, Parsons testified that he had worked for Vons/Safeway for 35 years and had
been a store manager for 18 years. People’s Exhibit No. 1 was a copy of video taken by
the store’s surveillance equipment; Parsons had viewed the video at the store and then
gave a copy to the police. Once a month, an in-house loss prevention team inspected the
store, audited the surveillance video and checked for accuracy of the time stamp. Under
Peyton, the Evidence Code sections 1552 and 1553 presumptions were sufficient to
establish that the surveillance video accurately depicted what occurred in the store during
the relevant time period and Parsons possessed sufficient knowledge of how the store
maintained its surveillance system to make the video admissible as a business record.

C.     Proposition 47 Aside, There Was No Abuse of Discretion in the Trial Court’s
       Sentencing Choice

       Defendant contends: (1) he was entitled to a misdemeanor sentence under
Proposition 47; and (2) selection of the upper term was an abuse of discretion. We
conclude that defendant’s interpretation of Proposition 47 is correct, making his second
contention moot.


                                              11
                 Proposition 47 is Retroactive
      At the time defendant was sentenced on August 13, 2013, second degree burglary
was punishable as either a misdemeanor or a felony. (§ 461, subd. (b); see § 17.) The
trial court selected the high term felony sentence and defendant has been serving that
sentence while this appeal has been pending. In the interim, voters enacted Proposition
47, “The Safe Neighborhoods and School Act.”8 Under Proposition 47, some drug and
theft-related offenses that were previously felonies or “wobblers” are now misdemeanors
unless committed by certain ineligible defendants. Relevant here is section 459.5, which
created misdemeanor “shoplifting” for what otherwise would be a commercial burglary
when the crime takes place during regular business hours and the value of the property
taken does not exceed $950.9 Section 459.5 is not applicable to persons who have
previously been convicted of certain enumerated crimes. (§ 459.5, subd (a); see § 667
subd. (e)(2)(C)(iv).) Because the value of the property defendant took was less than
$950, his crime was committed in a commercial establishment during regular business
hours, and he has no disqualifying prior convictions, defendant contends his felony

8      Voters enacted Proposition 47 on November 4, 2014, and it went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)

9     Section 459.5 reads:
      “(a) Notwithstanding Section 459 [defining burglary], shoplifting is defined as
      entering a commercial establishment with intent to commit larceny while that
      establishment is open during regular business hours, where the value of the
      property that is taken or intended to be taken does not exceed nine hundred fifty
      dollars ($950). Any other entry into a commercial establishment with intent to
      commit larceny is burglary. Shoplifting shall be punished as a misdemeanor,
      except that a person with one or more prior convictions for an offense specified in
      clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
      or for an offense requiring registration pursuant to subdivision (c) of Section 290
      may be punished pursuant to subdivision (h) of Section 1170.

       (b) Any act of shoplifting as defined in subdivision (a) shall be charged as
       shoplifting. No person who is charged with shoplifting may also be charged with
       burglary or theft of the same property.”


                                            12
burglary conviction must be reduced to misdemeanor shoplifting and the matter
remanded to the trial court for resentencing.10
       Defendant’s argument is largely predicated on the Estrada rule, by which a
statutory amendment that mitigates punishment operates with limited retroactivity (i.e.
applies in all cases in which judgment was not yet final when the amendment took
effect), unless the statute has a savings clause. (In re Estrada (1965) 63 Cal.2d 740,
747.) The People counter that the Estrada rule is inapplicable because section 1170.18,
subdivision (a), which was also created by Proposition 47, operates as the “functional
equivalent of a savings clause.”11 As we shall explain, defendant is correct and
section 459.5 applies to him. Accordingly, we remand for resentencing.
       People v. Noyan (2014) 232 Cal.App.4th 657 (Noyan), the only published case to
discuss the retroactivity of Proposition 47, was filed after supplemental briefing in this


10     Although defendant has suffered several prior convictions, his two most serious
ones, robbery and assault with a deadly weapon, do not preclude the misdemeanor
treatment of his current shoplifting offense under section 459.5, subd. (a).

11     Section 1170.18, subdivisions (a) and (b) read:
       “(a) A person currently serving a sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a misdemeanor under
[Proposition 47 had it] been in effect at the time of the offense may petition for a recall of
sentence before the trial court that entered the judgment of conviction in his or her case to
request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as
those sections have been amended or added by this act.

        (b) Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, those sections have been amended or added by this act, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety. In exercising its discretion, the court may consider [specified
factors].”


                                               13
case was completed. The defendant in Noyan was convicted of, among other things,
violations of section of Health and Safety Code section 11370 [possession of a controlled
substance]. The case primarily turned on an equal protection analysis of two statutes
prohibiting the unlawful introduction of alcohol and controlled substances into county
jail. The defendant also argued the appellate court should reduce his convictions from
felonies to misdemeanors pursuant to Proposition 47’s amendment to Health and Safety
Code section 11350, subdivision (a) which had occurred after his sentencing date but
before his case was final. Without analysis, the Noyan court held that, to obtain a
reduction of his conviction from a felony to a misdemeanor, defendant was “limited to
the statutory remedy of petitioning for recall of sentence in the trial court once his
judgment is final, pursuant to Penal Code section 1170.18. [Citation.]” (Noyan, supra, at
p. 672.) Noyan relied exclusively on People v. Yearwood (2013) 213 Cal.App.4th 161,
170, 177 (Yearwood) and did not mention the Supreme Court’s Estrada rule of limited
retroactivity.
       Proposition 47 was not at issue in Yearwood, which dealt with the earlier adopted
Proposition 36. Yearwood concerned the retroactivity of the earlier adopted Proposition
36 which “amended the Three Strikes law so that an indeterminate life sentence may only
be imposed where the offender’s third strike is a serious and/or violent felony or where
the offender is not eligible for a determinate sentence based on other disqualifying
factors. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) [Footnote
omitted.]” (Teal v. Superior Court (2014) 60 Cal.4th 595, 596.) Yearwood and
Proposition 36 are instructive on our Proposition 47 analysis because the statutes contain
nearly identical language.
       Pursuant to the former Three Strikes law, the defendant in Yearwood received a
life sentence for possession of marijuana in prison (§ 4573.6). While his appeal was
pending, the voters enacted Proposition 36. On appeal, Yearwood argued that Estrada
dictated that his life sentence should be vacated and that he be resentenced under the
amended Three Strikes law. (Yearwood, supra, 213 Cal.App.4th at p. 172.) The Court of
Appeal disagreed. It reasoned that section 1170.126, subdivision (b), which was also

                                             14
created by Proposition 36, took section 4573.6 out of the Estrada rule. Section 1170.126,
subdivision (b) established a procedure for an offender serving a life sentence for a
conviction that is not defined as a serious and/or violent felony to file a petition for recall
of sentence. After his appeal became final – the judgment was affirmed – Yearwood
would have to petition the trial court for recall of the sentence under section 1170.26 in a
separate post-conviction proceeding. (Yearwood, at p. 175.) The Yearwood court
explained: “The Estrada rule does not apply to [Proposition 36] because
section 1170.126 operates as the functional equivalent of a savings clause.
Section 1170.126 is not ambiguous. The voters intended a petition for recall of sentence
to be the sole remedy available under the Act for prisoners who were serving an
indeterminate life sentence imposed under the former three strikes law on the Act’s
effective date without regard to the finality of the judgment.” (Id. at p. 172.)12
       We disagree with Yearwood’s analysis and choose not to follow it. We begin with
the most basic rule of statutory construction: If the meaning of the plain, commonsense
language of the statute is unambiguous, the plain meaning controls. “ ‘[C]ourts will not
“interpret away clear language in favor of an ambiguity that does not exist.” [Citation.]’
[Citation.] Nor will they countenance efforts to create an ambiguity by reference to
extrinsic evidence; outside sources simply do not come into play when the language of a
statute is clear and unambiguous. [Citation.]” (People v. Dunbar (2012)
209 Cal.App.4th 114, 117.) “In addition, the Legislature is deemed to be aware of
existing laws and judicial decisions in effect at the time legislation is enacted and to have



12     Our Supreme Court denied review in Yearwood but the issue of whether the
Proposition 36 amendments to the Three Strikes law apply to defendants before their
judgments are final is currently pending before the Supreme Court in other cases. (See,
e.g., People v. Contreras (2013) 221 Cal.App.4th 558, review granted Jan. 29, 2014,
S215516 [holding Proposition 36 amendments apply retroactively]; People v. Lester
(2013) 220 Cal.App.4th 291, review granted Jan. 15, 2014, S214658 [same with a
dissent]; People v. Lewis (2013) 216 Cal.App.4th 468, review granted Aug. 14, 2013,
S211494 [same]; People v. Conley (2013) 215 Cal.App.4th 1482, review granted
Aug. 14, 2013, S211275 [holding the amendments are not retroactive].)

                                              15
enacted and amended statutes ‘ “in the light of such decisions as have a direct bearing
upon them.” ’ [Citations.]” (People v. Overstreet (1986) 42 Cal.3d 891, 897.)
       “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.” (In re Estrada, supra, 63 Cal.2d at p. 744.)
       Application of these rules requires us to conclude that the voters intended
Proposition 47 to be retroactive to those cases not yet final. Here, section 459.5
undisputedly lessens the punishment for any burglary of a commercial establishment
committed during business hours and involving property valued at less than $950; it does
not contain a savings clause. If Proposition 47 created only section 459.5, it would be
clear that the law applied to defendants whose judgments were not yet final under the
Estrada rule. But our analysis does not end there because Proposition 47 also created
section 1170.18.
       As relevant here, section 1170.18 allows an inmate serving a felony sentence for
burglary that would have been misdemeanor shoplifting under section 459.5 had
section 459.5 been in effect at the time of the offense, to petition for resentencing under
section 459.5. (§ 1170.18, subd. (a).)13 Subdivision (b) of section 1170.18 gives the trial
court discretion to deny resentencing if it determines the petitioner would pose an
unreasonable risk of danger to public safety. Subdivision (m) of section 1170.18 states:

13       Similar to section 459.5, section 1170.18 does not apply to “persons who have one
or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration
pursuant to subdivision (c) of Section 290.” (§ 1170.18, subd. (i); see § 459.5, subd. (a)
[“ . . . except that a person with one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for
an offense requiring registration pursuant to subdivision (c) of Section 290 may be
punished pursuant to subdivision (h) of Section 1170.”].) None of defendant’s prior
convictions fall within this exclusion.

                                             16
“Nothing in this section is intended to diminish or abrogate any rights or remedies
otherwise available to the petitioner of applicant.”
       The right to be resentenced under Estrada is a right available to a defendant whose
judgment is not yet final. Under Overstreet, the Legislature must be deemed to have
been aware of the Estrada rule at the time it enacted section 1170.18, subdivision (m) and
to have enacted the statute in light of that decision. For these reasons, we remand with
instructions to the trial court to resentence defendant under section 459.5.

                                      DISPOSITION

       The judgment of conviction is affirmed, but the matter is remanded to the trial
court with directions to hold a resentencing hearing within 30 days after the finality of
this opinion. The superior court is directed to impose sentence pursuant to section 459.5,
issue an amended abstract of judgment reflecting the sentence as modified and provide a
copy of the amended abstract to the parties and to the Department of Corrections and
Rehabilitation within 30 days after resentencing.




                                                  RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




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