Filed 6/7/16 P. v. Yarberry CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B265663
                                                                           (Super. Ct. No. KA104323)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

JERRY LYNN YARBERRY,

     Defendant and Appellant.



                   Jerry Lynn Yarberry appeals the trial court's order denying his petition for
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recall of sentence and request for resentencing under Penal Code section 1170.18, which
was enacted as part of Proposition 47. Appellant contends the court erred in refusing to
strike a one-year prior prison term enhancement (§ 667.5, subd. (b) [§ 667.5(b)]) that is
predicated upon a conviction subsequently designated as a misdemeanor. We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   In April 2014, appellant pled no contest to possession for sale of a
controlled substance (Health & Saf. Code, § 11351) and admitted serving three prior
prison terms (§ 667.5(b)). One of the priors is based on a 2003 conviction of petty theft

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             All statutory references are to the Penal Code unless otherwise stated.
with prior convictions. (§ 666.) The trial court sentenced appellant to six years in state
prison, consisting of the midterm of three years plus three one-year enhancements under
section 667.5(b).
              Section 1170.18 went into effect in November 2014. In March 2015,
appellant applied under subdivision (f) of section 1170.18 to have his prior section 666
conviction designated as a misdemeanor. After the court granted the application and
designated the conviction as a misdemeanor, appellant petitioned for resentencing in the
instant case. He purported to bring the petition under sections 1170.18 and 667.5(b), and
asserted that the subject section 667.5(b) enhancement had to be stricken now that the
underlying conviction had been designated as a misdemeanor. The court denied the
petition, reasoning in part that "the fact that the underlying offense resulting in a prison
prior is now a misdemeanor under Proposition 47 does not change the validity of the
enhancement because Penal Code section 667.5(b) accounts for recidivist conduct."
                                        DISCUSSION
              Appellant contends the trial court erred in declining to strike the subject
section 667.5(b) enhancement because the prior conviction upon which it is based is now
designated as a misdemeanor. We disagree.
              Proposition 47 reclassified certain drug and theft-related felony and
"wobbler" offenses as misdemeanors. It also created remedies for persons previously
convicted of one of the reclassified offenses. The first remedy applies to "[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 the act that added this
section ('this act') had this act been in effect at the time of the offense." (§ 1170.18,
subd. (a).) Such a person "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 [s]ections 11350, 11357, or 11377 of the Health and Safety Code, . . .
as those sections have been amended or added by this act." (Ibid.) The second remedy


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applies to those who have already completed a sentence for one of the enumerated
offenses. Those individuals can file an application with the court that entered the
judgment of conviction to have the conviction designated as a misdemeanor. (§ 1170.18,
subd. (f).) After relief is obtained under either of these provisions, the subject conviction
"shall be considered a misdemeanor for all purposes," with the exception of the firearm
restrictions that apply to convicted felons. (§ 1170.18, subd. (k).)
              Appellant obtained his remedy under subdivision (f) of section 1170.18 by
applying to have his prior section 666 conviction designated as a misdemeanor. His
current sentence does not include a conviction subject to recall and resentencing under
subdivision (a) of section 1170.18, but it includes a section 667.5(b) enhancement based
on the prior conviction that is now a misdemeanor. Although Proposition 47 makes no
mention of sentence enhancements, appellant contends that the law entitles him to have
the subject enhancement stricken because the designation of the predicate conviction as a
"misdemeanor for all purposes" (§ 1170.18, subd. (k)) effectively disproves one of the
enhancement’s essential elements, i.e., the conviction of a felony.
              Our Supreme Court has granted review of a series of opinions concluding
that the "misdemeanor for all purposes" designation in subdivision (k) of section 1170.18
does not apply retroactively to invalidate prior prison terms enhancements imposed under
section 667.5(b). (See, e.g., People v. Valenzuela, review granted Mar. 30, 2016,
S232900; People v. Williams, review granted May 11, 2016, S233539; People v. Carrea,
review granted Apr. 27, 2016, S233011; People v. Ruff, review granted May 11, 2016,
S233201.) We also conclude that the designation does not apply retroactively in this
context. "[T]he language in subdivision (k) of section 1170.18 that a conviction that is
reduced to a misdemeanor under that section 'shall be . . . a misdemeanor for all
purposes' is not significantly different from the language in section 17(b), which provides
that after the court exercises its discretion to sentence a wobbler as a misdemeanor, and in
the other circumstances specified in section 17(b), 'it is a misdemeanor for all purposes.'


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(Italics added.) [I]n construing this language from section 17(b), the California Supreme
Court has stated that the reduction of the offense to a misdemeanor does not apply
retroactively. [Citations.] We presume the voters 'intended the same construction' for the
language in section 1170.18, subdivision (k), 'unless a contrary intent clearly appears.'
[Citation.]" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1100.)
              Nothing in the language of section 1170.18 or the ballot materials reflects
such an intent. (People v. Rivera, supra, 233 Cal.App.4th at p. 1100.) The statute's
remedial provisions apply only to cases in which a person is currently serving a sentence
for a conviction of a felony that is now a misdemeanor (§ 1170.18, subd. (a)) and cases in
which a person convicted of such a crime has already completed his or her sentence
(§ 1170.18, subd. (f)). Moreover, the statute goes on to instruct that "[n]othing 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." (§ 1170.18, subd. (n).) The section 667.5(b)
enhancement at issue here is part of such a judgment.
              Appellant misplaces his reliance on People v. Park (2013) 56 Cal.4th 782
and People v. Flores (1979) 92 Cal.App.3d 461 in asserting that Proposition 47 was
intended to invalidate section 667.5(b) enhancements included in final judgments. In
both of those cases, the current offense was committed after the prior offense had already
been reduced to a misdemeanor. (See People v. Abdallah (2016) 246 Cal.App.4th 736,
747 [§ 667.5(b) enhancement did not apply to defendant sentenced after his prior felony
conviction had been designated as a misdemeanor under Proposition 47; distinguishing
case "from recent cases holding that Proposition 47 does not apply retroactively to
redesignate predicate offenses as misdemeanors for purposes of imposing sentencing
enhancements where the original sentence was imposed before the enactment of
Proposition 47"].)
              Appellant also erroneously relies on In re Acker (1984) 158 Cal.App.3d
888 (Acker), as support for his assertion that the misdemeanor designation in subdivision


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(k) of section 1170.18 applies retroactively. The petitioner in that case (Acker) was
previously convicted of burglary and sentenced to prison. After he had served a portion
of his sentence, it was recalled pursuant to section 1170, subdivision (d). (Acker at pp.
889-890.) He was subsequently convicted of assault with a deadly weapon, and a prior
prison term allegation based on the burglary conviction was found true under section
667.5(b). (Acker at p. 890.) In his direct appeal, his attorney failed to challenge the
enhancement on the ground that his prior prison term was not " 'a continuous completed
period of prison incarceration' " as contemplated in section 667.5, subdivision (g).
(Italics omitted.) Acker subsequently raised the claim in a petition for writ of habeas
corpus, alleging, among other things, that his appellate attorney's failure to raise it on
direct appeal constituted ineffective assistance of counsel. (Acker at pp. 890-891.) In
striking the enhancement, the Court of Appeal found merit in Acker’s claim of ineffective
assistance and reasoned that "[a] prison sentence recalled pursuant to section 1170,
subdivision (d) is vacated for all intents and purposes, not completed; and the defendant
is resentenced 'as if he had not previously been sentenced, provided the new sentence, if
any, is no greater than the initial sentence.' [Citation.]" (Id. at p. 891.)
              Acker does not support appellant's claim. Aside from the fact that
appellant's prior prison sentence was never recalled, the issue in Acker was whether the
prior prison term could subsequently be used to enhance Acker’s sentence in a
subsequent prosecution. Moreover, the trial court recognized that the issue should have
been raised on direct appeal but found it cognizable in a collateral proceeding under a
claim of ineffective assistance of counsel. Appellant, unlike Acker, purports to have the
right to retroactively invalidate a final judgment through a collateral attack based solely
on the rights set forth in section 1170.18. As we have explained, no such right exists.
              Appellant asserts that retroactive application of the "misdemeanor for all
purposes" designation is also compelled by the maxim expressio unius est exclusio
alterius (the expression of one thing is the exclusion of another) because the statute


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expressly provides only one exception to its application, i.e., firearm restrictions. The
"expression" of a limitation on how the misdemeanor designation applies once it has been
established, however, does not clearly and compellingly imply that the electorate thereby
intended to place no limitation on when the designation applies in the continuum of time.
              Appellant alternatively contends that subdivision (k) of section 1170.18
must be construed to apply retroactively because the electorate dictated that Proposition
47 should be "broadly construed to accomplish its purposes" and "liberally construed to
effectuate its purposes." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
p. 74.) None of the law's stated purposes, however, would be furthered by reducing the
sentences of prisoners serving sentences for non-Proposition 47 offenses and whose
sentences are enhanced to account for their recidivist behavior. Section 667.5(b) focuses
on the defendant's status at the time he or she commits a new felony offense. When
appellant committed his crimes, he stood convicted of a felony and had recently been
released from prison. That he reoffended so soon after his release made him deserving of
additional punishment. (People v. Levell (1988) 201 Cal.App.3d 749, 754.) Nothing in
the language of Proposition 47 or the related materials reflects an intent to absolve him of
this additional punishment simply by virtue of the fact that his prior conviction must now
be considered a misdemeanor.
              Finally, we reject appellant's claim that the relief he seeks is compelled by
his state and federal equal protection rights. He fails to persuade us that an individual
who has had a prior felony designated as a misdemeanor after it was used to enhance his
or her current sentence is similarly situated to someone whose prior conviction was
reduced to a misdemeanor before it was used as a sentence enhancement. Moreover,
"[t]he right to equal protection of the law generally does not prevent the state from setting
a starting point for a change in the law. '[T]he Fourteenth Amendment does not forbid
statutes and statutory changes to have a beginning and thus to discriminate between the
rights of an earlier and later time.' [Citation.] The same rule applies to changes in


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sentencing law that benefit defendants." (People v. Lynch (2012) 209 Cal.App.4th 353,
359.)
                                     DISPOSITION
             The order denying appellant's petition for recall of sentence and request for
resentencing is affirmed.
             NOT TO BE PUBLISHED.




                                         PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




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                                Salvatore T. Sirna, Judge

                         Superior Court County of Los Angeles
                         ______________________________

             Brad Kaiserman, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.
