Filed 5/19/16 P. v. Littrell 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069661
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC066590A)
                   v.

GARY LITTRELL,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
       In 1996, defendant Gary Littrell was convicted of felony possession of
methamphetamine. (Health & Saf. Code, § 11377, subd. (a)). He was sentenced to
25 years to life pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).1 On August 19, 2013, he filed a petition pursuant to Proposition
36, the Three Strikes Reform Act of 2012 (§ 1170.126), to recall his 25-year-to-life
sentence. On June 23, 2014, the trial court denied the petition, finding that defendant’s
release would result in an unreasonable risk of danger to the public safety and that he was
therefore ineligible for resentencing under Proposition 36 (§ 1170.126, subd. (f)).
Defendant filed a notice of appeal on June 27, 2014.
       On appeal, defendant contends Proposition 47, the Safe Neighborhoods and
Schools Act (§ 1170.18), applies retroactively and thus we should vacate his sentence and
remand for resentencing to reduce his felony conviction for possession of
methamphetamine to a misdemeanor. We disagree and dismiss the appeal.
                                      DISCUSSION
       While defendant’s appeal was pending, on November 4, 2014, voters enacted
Proposition 47, and it went into effect the next day. (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)
Among the enumerated offenses set forth in Proposition 47 is possession of a
methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
       “Proposition 47 also created a new resentencing provision: section 1170.18.
Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that


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


                                             2
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).) A person who satisfies the criteria in
section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a
misdemeanor … unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18,
subd. (b).) Subdivision (c) of section 1170.18 defines the term ‘unreasonable risk of
danger to public safety,’ and subdivision (b) of the statute lists factors the court must
consider in determining ‘whether a new sentence would result in an unreasonable risk of
danger to public safety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera, supra,
233 Cal.App.4th at p. 1092.) Proposition 47, unlike Proposition 36, requires a specific
finding of an unreasonable risk that the defendant will commit a new violent felony as
defined in section 667, subdivision (e)(2)(C)(iv), a so-called “super strike” offense, such
as murder, rape, or child molestation. (§ 1170.18, subd. (c); People v. Hoffman (2015)
241 Cal.App.4th 1304, 1309.)
       Here, defendant did not petition the trial court for recall of his sentence pursuant to
Proposition 47. The plain language of section 1170.18, however, requires a defendant to
first file “a petition to recall (if currently serving the sentence) or an application to
redesignate (if the sentence is completed) in the superior court of conviction.” (People v.
Diaz (2015) 238 Cal.App.4th 1323, 1331-1332 (Diaz).)2

2      Diaz also concluded “the voters did not intend to permit an appellate court to
declare in the first instance that a felony conviction for a crime reduced by Proposition 47
is a misdemeanor.” (Diaz, supra, 238 Cal.App.4th at p. 1332.) Other recent decisions
have rejected arguments on appeal that appellate courts are required to reduce offenses
predating Proposition 47 when the judgments are not yet final, and the decisions instead
require defendants to utilize the procedures specified in section 1170.18. (See People v.
Contreras (2015) 237 Cal.App.4th 868, 873, 889-892; People v. Awad (2015)
238 Cal.App.4th 215, 221-222 [finding the task of reducing a conviction from a felony to
a misdemeanor under Proposition 47 “manifestly” vested with the trial court].)


                                                3
       We conclude defendant must petition the trial court, utilizing the procedures
specified in section 1170.18. Furthermore, any arguments on appeal that Proposition 47
should be applied retroactively are premature.3 As a result, defendant raises no
cognizable issues on appeal.
                                      DISPOSITION
       The appeal is dismissed without prejudice to defendant’s filing a petition in the
trial court to recall his sentence.




3       We note that the issue of whether Proposition 47 applies retroactively to a
defendant who was sentenced before its effective date but whose judgment was not final
until after that date is pending before our Supreme Court in People v. Dehoyos, review
granted September 30, 2015, S228230. We also note that defendant’s equal protection
argument has been rejected. (People v. Williams (2016) 245 Cal.App.4th 458, 474-476;
People v. Ruff (2016) 244 Cal.App.4th 935, 948-949.)


                                             4
