Filed 9/16/16 P. v. Dunn 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069714
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR047886)
                   v.

BRIAN KEITH DUNN,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Jonathan D. Roberts, 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, Louis M. Vasquez, Ivan Marrs,
Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Detjen, Acting P.J., Franson, J. and Peña, J.
       Defendant Brian Keith Dunn contends his prior felony conviction reduced to a
misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18)1 may no longer form the
basis for a prior prison term allegation under section 667.5, subdivision (b), and thus we
should strike his prior prison term enhancement. We affirm.
                             PROCEDURAL SUMMARY
       On March 11, 2014, a jury found defendant guilty of criminal threats (§ 422).
Defendant admitted having served a prior prison term (§ 667.5, subd. (b)), based on a
2007 conviction for possession of stolen property (§ 496, subd. (a)).
       On May 14, 2014, the trial court sentenced defendant to three years in prison, plus
a one-year prior prison term enhancement. The court then suspended execution of the
sentence, and placed defendant on five years’ probation.
       On July 8, 2014, defendant filed a notice of appeal.
       On June 8, 2015, the trial court granted defendant’s petition for resentencing
pursuant to Proposition 47, reducing the 2007 possession of stolen property conviction
from a felony to a misdemeanor.
                                      DISCUSSION
       On November 4, 2014, California voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act, 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.)
       “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
is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and

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


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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.)
       As noted above, on June 8, 2015, the trial court granted defendant’s Proposition 47
petition and reduced to a misdemeanor a prior conviction upon which a prior prison term
allegation was based. Defendant contends the prior conviction is now a misdemeanor for
all purposes and may no longer support a prior prison term allegation under
section 667.5, subdivision (b). We disagree.2
       Subdivision (k) of section 1170.18, provides in pertinent part: “Any felony
conviction that is … designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes, except that such resentencing shall not permit
that person to own, possess, or have in his or her custody or control any firearm or
prevent his or her conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6.”



2     We note that several cases addressing this issue have been granted review. (E.g.,
People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539;
People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011;
People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201;
People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016,
S232900.)


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       In People v. Park (2013) 56 Cal.4th 782 (Park), the defendant’s sentence for his
current crimes was enhanced by five years under section 667, subdivision (a), based on
his prior conviction of a serious felony. Prior to the defendant’s commission of his
current crimes, however, 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, supra, 56 Cal.4th at p. 787.)
       Section 17, subdivision (b)(3) states in part: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail …, it is a misdemeanor for all purposes … [¶] … [¶] … [w]hen the court
grants probation to a defendant without imposition of sentence and at the time of granting
probation … declares the offense to be a misdemeanor.”
       In Park, the Court of Appeal concluded the conviction remained a prior serious
felony for purposes of sentence enhancement under section 667, subdivision (a), but the
California Supreme Court disagreed: “[W]hen the 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, supra, 56 Cal.4th at p. 787, first italics added.)
       Defendant’s reliance on Park is misplaced. In Park, the reduction and dismissal
occurred prior to the defendant’s commission of his current crimes. (Park, supra, 56
Cal.4th at p. 787.) Here, the reduction to a misdemeanor pursuant to section 1170.18,
subdivision (f), occurred after defendant’s commission, conviction, and sentence for his
current crimes. In Park, in response to an argument that People v. Feyrer (2010) 48
Cal.4th 426 and People v. Banks (1959) 53 Cal.2d 370 were contrary to its conclusion,
the court stated: “There is no dispute that, under the rule in those cases, defendant would
be subject to the section 667[, subdivision ](a) enhancement had he committed and been



                                              4
convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor.” (Park, supra, 56 Cal.4th at p. 802.)
       The issue before us is not whether defendant’s possession of stolen property
conviction and prison commitment can now be used to enhance a future sentence
pursuant to section 667.5, subdivision (b), should defendant commit a new felony upon
release from prison on his current sentence. The issue is whether defendant’s current
sentence, enhanced pursuant to section 667.5, subdivision (b), must now be altered
because, subsequent to defendant’s sentencing, the conviction that gave rise to that
enhancement was reduced to a misdemeanor pursuant to section 1170.18, subdivision (f).
In other words, does Proposition 47 operate retroactively? To make that determination,
we look to the language of section 1170.18 and to voter intent.
       Section 3 specifies that no part of the Penal Code “is retroactive, unless expressly
so declared.” This language “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 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.)
       An “important, contextually specific qualification” to the prospective-only
presumption regarding statutory amendments was set forth in In re Estrada (1965) 63
Cal.2d 740 (Estrada). (People v. Brown, supra, 54 Cal.4th at p. 323.) That qualification
is: “When the Legislature [or electorate] has amended a statute to reduce the punishment
for a particular criminal offense, we will assume, absent evidence to the contrary, that the
Legislature [or electorate] intended the amended statute to apply to all defendants whose
judgments are not yet final on the statute’s operative date.” (Ibid., fn. omitted.)



                                              5
       Although Estrada’s language is broad, the California Supreme Court has
emphasized the rule’s narrowness in People v. Hajek and Vo (2014) 58 Cal.4th 1144 at
page 1196 (abrogated on another ground in People v. Rangel (2016) 62 Cal.4th 1192,
1215-1217): “ ‘Estrada is today properly understood, not as weakening or modifying the
default rule of prospective operation codified in section 3, but rather as informing the
rule’s application in a specific context by articulating the reasonable presumption that a
legislative [or voter] act mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments.’ ”
       The question of retroactivity is ultimately one of legislative—or, in this case,
voter—intent. (People v. Shabazz (2015) 237 Cal.App.4th 303, 312-313; see People v.
Nasalga (1996) 12 Cal.4th 784, 793.) “To resolve this very specific retroactivity
question, we apply the well-settled rules governing interpretation of voter intent[.]”
(People v. Shabazz, supra, 237 Cal.App.4th at p. 313.) “ ‘In interpreting a voter
initiative …, we apply the same principles that govern statutory construction. [Citation.]
Thus, … “we turn first to the language of the statute, giving the words their ordinary
meaning.” [Citation.] … The statutory language must also be construed in the context of
the statute as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] … When the language is ambiguous, “we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
‘[Citation.]’ [Citation.] [¶] In other words, our ‘task is simply to interpret and apply the
initiative’s language so as to effectuate the electorate’s intent.’ ” (Robert L. v. Superior
Court (2003) 30 Cal.4th 894, 900-901.)
       Proposition 47 clearly was intended to lessen punishment for “nonserious,
nonviolent crimes like petty theft and drug possession” (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70),3 in order “to ensure that

3      The voter information guide can be accessed at
<http://vigarchive.sos.ca.gov/2014/general/en/pdf/> [as of August 1, 2016].

                                              6
prison spending is focused on violent and serious offenses .…” (Voter Information
Guide, Gen. Elec., supra, text of Prop. 47, § 2, p. 70). This purpose was conveyed to
voters, both in the text of the then-proposed law and in the arguments supporting
Proposition 47. (Voter Information Guide, Gen. Elec., supra, argument in favor of
Prop. 47, p. 38; id. rebuttal to argument against Prop. 47, p. 39; id. text of Prop. 47, §§ 2,
3, p. 70.)
       Nowhere, however, does Proposition 47 or the ballot materials refer to
section 667.5, subdivision (b) or mention recidivist enhancements, and Proposition 47
made no amendments to any such provisions. Two of Proposition 47’s expressly stated
purposes, however, are to “[a]uthorize consideration of resentencing for anyone who is
currently serving a sentence for any of the offenses” that would be made misdemeanors
by Proposition 47, and to “[r]equire a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that they do not pose a risk to
public safety.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 3,
subds. (4), (5), p. 70, italics added.) Voters were assured Proposition 47 would keep
dangerous criminals locked up (Voter Information Guide, Gen. Elec., supra, argument in
favor of Prop. 47, p. 38), and that it would not require automatic release of anyone:
“There is no automatic release. [Proposition 47] includes strict protections to protect
public safety and make sure rapists, murderers, molesters and the most dangerous
criminals cannot benefit.” (Id. rebuttal to argument against Prop. 47, p. 39.)
       “Imposition of a sentence enhancement under … section 667.5 requires proof that
the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of
that conviction; (3) completed that term of imprisonment; and (4) did not remain free for
five years of both prison custody and the commission of a new offense resulting in a
felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.)4 “Sentence

4      Section 667.5, subdivision (b) currently provides: “Except where subdivision (a)
applies, where the new offense is any felony for which a prison sentence or a sentence of

                                              7
enhancements for prior prison terms are based on the defendant’s status as a recidivist,
and not on 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, italics added; see
People v. Coronado (1995) 12 Cal.4th 145, 158-159; People v. Dutton (1937) 9 Cal.2d
505, 507.) Thus, the purpose of an enhancement under section 667.5, subdivision (b) “is
‘to punish individuals’ who have shown that they are ‘ “hardened criminal[s] who [are]
undeterred by the fear of prison.” ’ ” (In re Preston (2009) 176 Cal.App.4th 1109, 1115.)
The enhancement’s focus on the service of a prison term “indicates the special
significance which the Legislature has attached to incarceration in our most restrictive
penal institutions.” (People v. Levell (1988) 201 Cal.App.3d 749, 754.)
       A person who refuses to reform even after serving time in prison is clearly and
significantly more dangerous than someone who merely possesses drugs for personal use
or shoplifts. We cannot conclude, from the language of Proposition 47 or the ballot
materials, that voters deemed such persons to be nonserious, nondangerous offenders, and
so intended Proposition 47 to reach back to ancillary consequences such as enhancements
resulting from recidivism considered serious enough to warrant additional punishment.
Accordingly, section 3’s default rule or prospective operation, and not Estrada’s narrow
rule of retroactivity, applies.

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 imposed
under subdivision (h) of Section 1170 or when sentence is not suspended for any felony;
provided that no additional term shall be imposed under this subdivision for any prison
term or county jail term imposed under subdivision (h) of Section 1170 or when sentence
is not suspended prior to a period of five years in which the defendant remained free of
both the commission of an offense which results in a felony conviction, and prison
custody or the imposition of a term of jail custody imposed under subdivision (h) of
Section 1170 or any felony sentence that is not suspended. A term imposed under the
provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the
term is suspended by the court to allow mandatory supervision, shall qualify as a prior
county jail term for the purposes of the one-year enhancement.”


                                             8
       People v. Flores (1979) 92 Cal.App.3d 461 (Flores) does not lead to a different
result. In that case, the defendant was convicted in 1966 for possessing marijuana. In
1977, he sold heroin. His sentence for the 1977 offense was enhanced by one year,
pursuant to section 667.5, because of his 1966 conviction. (Flores, supra, at pp. 464,
470.) On appeal, the defendant claimed the enhancement was improper under Estrada,
because Health and Safety Code section 11357 was amended in 1975 to make possession
of marijuana a misdemeanor. (Flores, supra, at p. 470.) Agreeing with the defendant,
the appellate court stated:

               “The amendatory act imposing the lighter sentence for possession of
       marijuana can obviously be applied constitutionally to prevent the
       enhancement of a new sentence by reason of a prior conviction of
       possession. Moreover, in the case at bench we are not confronted by
       legislative silence with respect to its purpose regarding penalties for
       possession of marijuana.

              “Effective January 1, 1976, Health and Safety Code section 11361.5,
       subdivision (b) was enacted to authorize the superior court, on petition, to
       order the destruction of all records of arrests and convictions for possession
       of marijuana, held by any court or state or local agency and occurring prior
       to January 1, 1976. [Citation.] In 1976, [Health and Safety Code]
       section 11361.7 was added to provide in pertinent part that: ‘(a) Any
       record subject to destruction … pursuant to Section 11361.5, or more than
       two years of age, or a record of a conviction for an offense specified in
       subdivision (a) or (b) of Section 11361.5 which became final more than two
       years previously, shall not be considered to be accurate, relevant, timely,
       or complete for any purposes by any agency or person…. (b) No public
       agency shall alter, amend, assess, condition, deny, limit, postpone, qualify,
       revoke, surcharge, or suspend any certificate, franchise, incident, interest,
       license, opportunity, permit, privilege, right, or title of any person because
       of an arrest or conviction for an offense specified in subdivision (a) or (b)
       of Section 11361.5 … on or after the date the records … are required to be
       destroyed … or two years from the date of such conviction … with respect
       to … convictions occurring prior to January 1, 1976 ….’ ” (Flores, supra,
       92 Cal.App.3d at pp. 471-472.)
       The appellate court concluded the statutory language was clear and unambiguous.
(Flores, supra, 92 Cal.App.3d at p. 472.) The court stated: “In view of the express


                                             9
language of the statute and the obvious legislative purpose, it would be unreasonable to
hold that the Legislature intended that one who had already served a felony sentence for
possession of marijuana should be subjected to the additional criminal sanction of
sentence enhancement.” (Id. at p. 473.) The court concluded the new laws constituted “a
legislative declaration that the old laws were too severe for the quantum of guilt
involved” (ibid.), and distinguished a situation in which the California Supreme Court
refused to give retroactive effect to an amendment to section 17 (Flores, supra, at p. 473)
in part because “[t]here was no suggestion there, as there is here, that the Legislature
intended retroactive application” (id. at p. 474).
       In Flores, as in Park, and in contrast to the present case, the current offense was
committed after the earlier offense was reduced to a misdemeanor. Moreover,
Proposition 47 contains no clear expression with respect to retroactivity as was found in
Flores. The closest it gets is the statement, in subdivision (k) of section 1170.18, that
“[a]ny felony conviction that is … designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes, except [specified firearm laws].”
(Italics added.)
       This language, the italicized portion of which is identical to that contained in
section 17, subdivision (b), is not necessarily conclusive, however. (Park, supra, 56
Cal.4th at p. 793.) It has not been read to mean a defendant could avoid an imposed
sentence enhancement in his current sentence by having the prior offense subsequently
reduced to a misdemeanor. (Id. at p. 802.) Nothing in the language of Proposition 47 or
the ballot materials indicates an intention to override the operation of section 667.5,
subdivision (b), at least retroactively.
       Defendant served a prison term for the prior conviction at a time the offense was a
felony. It is the service of that prison term, coupled with defendant’s continuing
recidivism, that section 667.5, subdivision (b) punishes. Absent a clear statement of the
electorate’s intent to the contrary—which we do not find—we conclude that, because

                                              10
defendant served a prison term for possession of stolen property at a time when the
offense was a felony, and had his current sentence enhanced accordingly before the
conviction was reduced, he is not entitled to relief.
       This conclusion does not render surplusage the “for all purposes” language of
section 1170.18, subdivision (k). Our determination is one of the electorate’s intent.
“Rules such as those directing courts to avoid interpreting legislative enactments as
surplusage are mere guides and will not be used to defeat legislative intent.” (People v.
Cruz (1996) 13 Cal.4th 764, 782.) Moreover, “ambiguities are not interpreted in the
defendant’s favor if such an interpretation would provide an absurd result, or a result
inconsistent with apparent legislative intent.” (Id. at p. 783.)
       We conclude that a previously imposed sentence enhanced by a section 667.5,
subdivision (b) prior prison term is not altered by the granting of a Proposition 47 petition
reducing the felony that gave rise to that prior prison term to a misdemeanor.


                                      DISPOSITION
       The judgment is affirmed.




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