Filed 6/1/16 P. v. Linneman CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064214

v.                                                                      (Super.Ct.No. FSB901059)

RONALD LEE LINNEMAN, JR.,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

(retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) and Harold T. Wilson, Jr., Judges. Affirmed.

         Leonard J. Klaif, 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, A. Natasha Cortina and Seth M.

Friedman, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       On November 4, 2014, the voters approved the Safe Neighborhoods and Schools

Act (Proposition 47), which allows a person convicted of a felony prior to its passage,

who would have been guilty of a misdemeanor under Proposition 47, to petition the court

to reduce his or her felony conviction to a misdemeanor and be resentenced. The

proposition created Penal Code section 1170.181 which sets forth the guidelines for filing

such a petition.

       In 2009, defendant and appellant Ronald Lee Linneman, Jr., entered a plea of

guilty to home-invasion robbery (which is not an eligible offense under § 1170.18) and

with having suffered a prior violent felony conviction. He additionally admitted that he

suffered a prior conviction for which he served a prison term within the meaning of

section 667.5, subdivision (b). In 2015, in a separate proceeding, defendant had the

felony (used to enhance his sentence under section 667.5, subdivision (b) in this case)

reduced to a misdemeanor. Defendant subsequently filed a petition to recall his sentence

(Petition) in which he listed his convictions in the current case arguing he was eligible for

resentencing. He then sought to have the Petition reconsidered, arguing the prior

conviction should be reduced to misdemeanors. His Petition was denied.

       Defendant appeals the trial court’s denial of his Petition. He claims that the trial

court erred when it refused to strike the one-year sentence on his section 667.5,

subdivision (b) prior conviction because he insists that under Proposition 47, once his

prior felony conviction was reduced to a misdemeanor, the conviction could no longer be


       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
used to enhance his sentence in this case.2 We conclude that a previously imposed

sentence enhanced by a section 667.5, subdivision (b) prior prison term is not affected

due to the prior conviction subsequently being reduced to a misdemeanor under

Proposition 47. Proposition 47 was not intended to apply retroactively to enhancements

on convictions for which the sentence has been imposed and the judgment is final.

                     FACTUAL AND PROCEDURAL HISTORY

       On July 13, 2009, an information was filed in San Bernardino County case No.

FSB901059 charging defendant with two counts of home invasion robbery (Pen. Code,

§ 211) and with the enhancement for both counts that a principal personally used a

firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1)). He was also charged with having

suffered one prior serious and violent felony conviction (Pen. Code, §§ 667, subds. (a),

(b) through (i), 1170.12, subds. (a) through (d)) and two prior felony convictions for

which he served a prior prison term (Pen. Code, § 667.5, subd. (b)). One of the Penal

Code section 667.5, subdivision (b) priors (case No. FV1017031) was for violating

Health and Safety Code section 11377, subdivision (a).3




       2 Defendant has also filed a petition for writ of habeas corpus in case No.
E065088, which is being considered with the instant appeal. It will be resolved by
separate order.

       3  A violation of Health and Safety Code section 11377, subdivision (a) is now a
misdemeanor pursuant to Penal Code section 1170.18. Defendant requested that we take
judicial notice of the minute order reducing his prior conviction to a misdemeanor. We
grant the request.


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       On October 30, 2009, defendant admitted to one count of robbery; that he suffered

one prior violent felony conviction; and had suffered one prison prior. The remaining

robbery count and gun enhancement were dismissed. Defendant was sentenced to the

upper term of nine years for the robbery, five years for the violent felony conviction, and

one year for the prior prison term. He received a total sentence of 15 years to be served

in state prison.

       On December 22, 2014, defendant filed the Petition. He alleged that on March 17,

2009, he was convicted of “pc2 pc667(A)(1) pc667.5(B) pc1170.12(A)-(D) pc.” He

marked the box that he qualified for redesignation of this matter to a misdemeanor

because there were no disqualifiers under section 1170.18. He also stated he was

currently in custody in state prison. He requested he receive credit for time served on the

redesignated charge. He attached the minute order from the original sentencing.

       On January 30, 2015, his Petition was called with several Proposition 47 petitions.

The trial court noted at the outset, “there are a number of cases where the defendant does

not qualify for relief under Prop 47, due to the nature of the charges, and a few of the

cases also due to the nature of the prior convictions. [¶] So, in the following cases, the

defendant’s petition to reduce the conviction to a misdemeanor is denied, and the

defendant’s petition for resentencing as a misdemeanor is denied. [¶] And so the

existing sentences remain in effect.” Defendant’s name and case was then called.

       On the same day, in front of the same trial court judge, defendant’s petition to

recall his sentence in case No. FV1017031 was heard. The trial court granted the petition

and reduced his felony conviction to a misdemeanor.


                                             4
       On May 18, 2015, the Petition was set for another hearing. Counsel for defendant

was present and advised the trial court defendant was seeking to have his Petition

“reconsidered, the Prop 47 issue on his priors, if they should be reduced to

misdemeanors.” The trial court noted the section 1170.18 petition had already been

denied and the ruling would stand.

       On July 9, 2015, defendant sent a letter to the San Bernardino County Superior

Court. In the letter, he sought to appeal the denial of the Petition. He stated the prior

felony conviction enhancement pursuant to section 667.5, subdivision (b) for which he

received an additional one-year sentence in this case, had since been reduced to a

misdemeanor. He wanted to appeal the denial of his Petition and be resentenced to 14

years. He attached a record of actions in case No. FV1017031, presenting his conviction

was reduced to a misdemeanor. The notice of appeal was deemed timely.

                                      DISCUSSION

       Defendant was sentenced in this case in 2009. Proposition 47 went into effect in

2014. After the effective date, and after the sentence was final in this case, defendant

was able to have his prior conviction, which was used as a section 667.5, subdivision (b)

enhancement in this case, reduced to a misdemeanor. Defendant insists on appeal that his

sentence in this case must be recalled and the prior conviction can no longer be used to

enhance his sentence. His sentence in this case should be reduced by one year. We

disagree.




                                              5
       Initially, the People contend that defendant never raised this claim below. They

rely on the fact that in the Petition, defendant only listed his current convictions, which

were clearly not eligible for resentencing under Proposition 47. However, at the

reconsideration hearing, defendant’s counsel advised the trial court that defendant wanted

to raise the claim that his sentence on his priors should be reduced. This was enough to

alert the trial court as to the claim defendant was raising; therefore, it has not been

forfeited.

       Moreover, the issue in this case is a question of statutory construction which is

appropriately considered by this court as a question of law. (People v. Taylor (1992) 6

Cal.App.4th 1084, 1090-1091.) “[O]ur interpretation of a ballot initiative is governed by

the same rules that apply in construing a statute enacted by the Legislature. [Citations.]

We therefore first look to ‘the language of the statute, affording the words their ordinary

and usual meaning and viewing them in their statutory context.’ [Citations.] Once the

electorate’s intent has been ascertained, the provisions must be construed to conform to

that intent. [Citation.] ‘[W]e may not properly interpret the measure in a way that the

electorate did not contemplate: the voters should get what they enacted, not more and not

less.’” (People v. Park (2013) 56 Cal.4th 782, 796 (Park).)




                                              6
       Several courts have found that Proposition 47 does not apply to enhancements

pursuant to section 667.5, subdivision (b) for cases where the judgment imposing the

enhancement has become final.4 We briefly address the issue.

       Proposition 47 provides two ways that a defendant can petition the court for relief.

First, “A person currently serving a sentence for a conviction, . . . of a felony or felonies

who would have been guilty of a misdemeanor under the act that added this section . . .

had this act 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 . . . .”

(§ 1170.18, subd. (a).) If the defendant’s felony would have been a misdemeanor, the

defendant will be resentenced unless the trial court finds “resentencing the petitioner

would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) If

the defendant has completed his or her sentence, section 1170.18, subdivision (f)

provides, “A person who has completed his or her sentence for a conviction, . . . of a

felony or felonies who would have been guilty of a misdemeanor under this act had this

act been in effect at the time of the offense, may file an application before the trial court

that entered the judgment of conviction in his or her case to have the felony conviction or

convictions designated as misdemeanors.” Section 1170.18, subdivision (k), further

provides “Any felony conviction that is recalled and resentenced under subdivision (b) or



       4  We note the California Supreme Court has granted review on cases that involve
this issue: People v. Valenzuela, review granted March 7, 2016, S232900; People v.
Carrea, review granted April 27, 2016, S233011; People v. Williams, review granted
May 11, 2016, S233539; People v. Ruff, review granted May 11, 2016, S233201.


                                               7
designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor

for all purposes,” except for ownership of a firearm.

       Section 667.5 requires “[e]nhancement of prison terms for new offenses because

of prior prison terms.” Under subdivision (b), “where the new offense is any felony for

which a prison sentence or a sentence of imprisonment in a county jail under subdivision

(h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any

other sentence therefor, the court shall impose a one-year term for each prior separate

prison term or county jail term.” (§ 667.5, subd. (b).)

       Nothing in the plain language of the statute provides a remedy for someone who is

currently serving a sentence for an “enhancement” and not a “conviction.” Section

1170.18 only refers to conviction and a person who is currently serving a sentence for the

conviction. Defendant is not currently serving a sentence on the prior conviction, which

was reduced to a misdemeanor; he is serving on the enhancement. Nothing in the

language of section 1170.18 provides for a procedure to reach back and resentence on an

enhancement when a case is final and the current convictions are ineligible for

resentencing.

       Moreover, nothing in the language of section 1170.18 supports that it is intended

to be applied retroactively to enhancements on convictions that do not qualify under

Proposition 47 and are final. Section 3 specifies that no part of the Penal Code “is

retroactive, unless expressly so declared.” “The language of section 3 erects a strong

presumption of prospective operation, codifying the principle that, ‘in the absence of an

express retroactivity provision, a statute will not be applied retroactively unless it is very


                                               8
clear from extrinsic sources that the Legislature [or electorate] . . . must have intended a

retroactive application.’ [Citations.] Accordingly, ‘“a statute that is ambiguous with

respect to retroactive application is construed . . . to be unambiguously prospective.”’”

(People v. Brown (2012) 54 Cal.4th 314, 324.)

       Section 1170.18 provides no express retroactive provision except as previously

delineated regarding reducing a conviction on which a sentence is currently being served.

Moreover, section 1170.18, subdivision (k) provides, “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.” The intent from the language is clear; it was not to

disturb final judgments of conviction which do not fall under Proposition 47. Here,

defendant was convicted of home invasion robbery, which is a crime not included in

Proposition 47. There is no language in section 1170.18 that indicates this provision was

intended to have the retroactive collateral consequences advocated by defendant.

       Defendant claims the decision in Park, supra, 56 Cal.4th 782 “is controlling” and

the trial court should have reduced his sentence by one year. In Park, the defendant’s

sentence for his current crimes was enhanced by five years based on a prior conviction

suffered pursuant to section 667, subdivision (a). Prior to the defendant committing his

current crimes, the trial court reduced the prior offense to a misdemeanor under section

17, subdivision (b)(3), and then dismissed it pursuant to section 1203.4, subdivision

(a)(1). (Park, at pp. 787-788.) In Park, the Court of Appeal held the conviction

remained a prior serious felony for purposes of sentence enhancement under section 667,

subdivision (a), but the California Supreme Court disagreed as follows: “[W]hen the


                                              9
court in the prior proceeding properly exercised its discretion by reducing the . . .

conviction to a misdemeanor, that offense no longer qualified as a prior serious felony

within the meaning of section 667, subdivision (a), and could not be used, under that

provision, to enhance defendant’s sentence.” (Park, at p. 787.)

       Park is easily distinguishable from this case. Here, the prior conviction was not

reduced to a misdemeanor until after defendant committed the home-invasion robbery in

this case, and after the sentence was final. Parks is not controlling in a situation such as

this one where a sentence is final and thereafter a prior conviction which was used as an

enhancement is reduced to a misdemeanor.

       Defendant also relies upon People v. Flores (1979) 92 Cal.App.3d 461. In that

case, the defendant was convicted in 1977 for the sale of heroin and the sentence was

enhanced with a 1966 felony conviction for the sale of marijuana. (Id., at pp. 470-471.)

However, in 1976, the Legislature had amended the statute punishing the sale of

marijuana by reducing it to a misdemeanor. On direct appeal of the 1977 sale of heroin

conviction, the appellate court found the 1976 amendment applied to all new sentences

and the enhancement could not be imposed. (Id. at pp. 470-474.)

       Flores is inapposite to this case. In that case, the issue arose on appeal of the

current crimes. Here, defendant’s conviction and sentence for the home invasion robbery

has long since been final. Proposition 47 was enacted after the finality of the judgment in

this case. Flores does not authorize the retroactive application that defendant seeks in

this case.




                                             10
       Defendant has not shown that Proposition 47 was intended to allow retroactive

relief for those who have a conviction that does not qualify for resentencing but was

enhanced by a felony conviction that has since been reduced to a misdemeanor.

Defendant is not entitled to relief under Proposition 47.

                                       DISPOSITION

       The denial of defendant’s Petition is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                            MILLER
                                                                                        J.


We concur:


HOLLENHORST
                       Acting P. J.


SLOUGH
                                  J.




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