Filed 3/28/16 P. v. Rivera CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041742
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS131492A,
                                                                     SS141959A)
         v.

MIGUEL ANGEL RIVERA,

         Defendant and Appellant.


         In two cases below, defendant pleaded no contest to possession of heroin. (Health
& Saf. Code, § 11350.) In one of the cases, he also pleaded no contest to driving under
the influence of a drug. (Veh. Code, § 23152, subd. (e).) After defendant entered his
pleas, but before the court imposed sentences, Proposition 47 took effect and reduced
possession of heroin to a misdemeanor. Nonetheless, the court sentenced defendant as a
felon in both cases. Defendant immediately petitioned to recall both sentences under
Proposition 47. The trial court granted both petitions, recalled both sentences, and
designated the possession offenses to be misdemeanors.
         Defendant appeals from both cases on the same ground. He contends Proposition
47 reduced his possession convictions to misdemeanors before the trial court sentenced
him as a felon. However, because the trial court granted his petitions and designated the
offenses to be misdemeanors, we conclude defendant’s claims on this ground are moot.
         Defendant further contends the trial court erred by granting probation after having
sentenced him to a custodial term. Because the trial court recalled the custodial term
under Proposition 47 before granting probation, we conclude this claim is also without
merit.
         Finally, defendant contends the trial court erred by ordering 365 days in county
jail as a condition of probation for driving under the influence of a drug. The Attorney
General concedes the merit of this claim. We agree with defendant and we accept the
Attorney General’s concession. Because the maximum punishment for driving under the
influence of a drug is six months in jail, the trial court erred by ordering a jail term of 365
days. In case No. SS141959A, we will reverse the judgment and remand for
resentencing. In case No. SS131492A, we will affirm the judgment.
                          I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offenses1
         1. Case No. SS131492A
         On July 25, 2013, the police stopped to help a disabled motorist on the side of the
road. The police recognized the driver to be defendant, a known heroin dealer. When
asked about a pending narcotics case in Santa Cruz County, defendant became nervous
and began reaching into his pockets. Upon searching him for weapons, police found a
digital scale with heroin residue and $3,089 in cash. Defendant also admitted having a
methamphetamine pipe in his pocket.
         A passenger in the car showed signs of heroin use. A search of the car revealed
multiple needles, and a search of the passenger’s purse revealed a syringe loaded with
heroin. In the trunk, police found 81 grams of heroin, one gram of methamphetamine,
and $2,050 cash.
         2. Case No. SS141959A
         On July 6, 2014, police stopped defendant for driving without headlights. The car
had two passengers who were on probation with outstanding warrants. Police found an
orange hypodermic syringe cap in defendant’s pocket.

         1
             The facts of both cases are taken from the probation reports.
                                                 2
       In the car, police found wire cutters, flashlights, gloves, wire scrapers, metal files,
and several other tools. On the front passenger-side floor, police found 10 pills
containing acetaminophen and hydrocodone. Underneath the front passenger’s seat,
police found a black pouch containing three needles loaded with heroin; 0.57 grams of
methamphetamine; a methamphetamine pipe; and other indicia of drug use. Between the
driver’s seat and the middle console, police found a metal spoon handle shaved to
replicate a key. On the driver’s side floor, police found another spoon handle and a blue
pouch containing ten metal files. Defendant told police the drugs and the shaved spoon
handle belonged to one of the passengers.
       Officers subjected defendant to a series of sobriety tests. After defendant failed to
complete the tests successfully, police determined he was under the influence of drugs
and took him to a medical center for a blood draw.
   B. Procedural Background
       On February 4, 2014, the prosecution charged defendant by information in case
No. SS131492A with: Count One—Possession of heroin for sale (Health & Saf. Code,
§ 11351); and Count Two—Possession of methamphetamine for sale (Health & Saf.
Code, § 11378). The complaint alleged defendant had served a prior prison term. (Pen.
Code, § 667.5, subd. (b).)2
       On June 25, 2014, the prosecution amended the information to add Count Three—
Possession of heroin (Health & Saf. Code, § 11350). On that date, defendant pleaded no
contest to Count Three in exchange for a term of felony probation and dismissal of
Counts One and Two.
       On August 1, 2014, the trial court suspended imposition of sentence and granted a
three-year term of probation. The remaining two counts were dismissed. On that same
date, the prosecution charged defendant by complaint in case No. SS141959A with
possession of a controlled substance in a jail (§ 4573.6, subd. (a)). The prosecution later

       2
           Subsequent undesignated statutory references are to the Penal Code.
                                              3
amended the complaint to add one count of driving under the influence of a drug (Veh.
Code, § 23152, subd. (e)) and one count of possession of heroin (Health & Saf. Code,
§ 11350).
       On September 16, 2014, the probation department petitioned for modification of
the terms of probation in case No. SS131492A. The petition alleged three violations of
probation: (1) that defendant had failed to report for a scheduled appointment with his
probation officer; (2) that defendant had been cited by the police for possession of
burglary tools (§ 466); and (3) that defendant had failed to report the police contact to his
probation officer. The trial court revoked probation in case No. SS131492A on
September 30, 2014, and set a date for a formal hearing.
       On October 16, 2014, in Case. No. SS141959A, defendant pleaded no contest to
Count Two (driving under the influence of a drug) and Count Three (possession of
heroin). As to the alleged probation violations in case No. SS131492A, defendant
admitted the first and third allegations, and the second allegation was dismissed.
       On December 2, 2014, in case No. SS131492A, defendant filed a petition under
section 1170.18 (Proposition 47) for recall and resentencing of his conviction for
possession of heroin (Health & Saf. Code, § 11350).
       The court held a hearing in both cases on December 4, 2014. As to case
No. SS141959A, defendant argued that the enactment of Proposition 47 had retroactively
reduced his conviction on Count Three (possession of heroin) to a misdemeanor.3 The
trial court rejected this argument and sentenced defendant as a felon. The court denied
probation and imposed a term of 16 months in county jail. The court also imposed a
$300 restitution fine. Defendant then immediately filed a petition for recall under section

       3
         On appeal, defendant contends trial counsel had argued that the convictions for
possession of heroin in both cases had been reduced to misdemeanors. The record shows
otherwise; trial counsel had already filed a petition for recall in case No. SS131492A
prior to the sentencing hearing. Apparently trial counsel assumed that a petition for recall
was necessary because defendant had already been “sentenced” for purposes of
Proposition 47 when the court granted probation on August 1, 2012.
                                              4
1170.18. The court granted the petition, recalled the sentence, and designated
Count Three a misdemeanor. The court then denied parole and imposed a term of
112 days in county jail. The court also imposed fines and fees in the same amount as it
did before recalling the sentence. Defendant objected and requested that the court impose
“misdemeanor fines,” but the court overruled the objection. As to Count Two (driving
under the influence of a drug), the court imposed a five-year term of probation to include
365 days in county jail concurrent with the term imposed for possession of heroin.
       In case No. SS131492A, the court ordered probation to remain revoked and denied
a further grant of probation. The court imposed a term of 16 months in county jail
concurrent with the term imposed in case No. SS141959A. The court also imposed a
$300 restitution fine. The court then immediately granted defendant’s previously-filed
petition to recall the sentence under section 1170.18. The court recalled the sentence and
designated the conviction for heroin possession to be a misdemeanor. The court declined
to impose a term of parole. Although the court did not orally pronounce a jail sentence,
the minutes state that the court imposed 149 days in county jail with 149 days of credit
for time served. Defendant again objected to the imposition of “felony fines,” but the
court declined to reduce the amount of the fines.
       After defendant filed his notice of appeal, we requested briefing on the issue of
whether this court had appellate jurisdiction or whether jurisdiction lay with the appellate
division of the superior court because the convictions were misdemeanors. We held that
this court had appellate jurisdiction because both cases were initially charged as felonies.
(People v. Rivera (2015) 233 Cal.App.4th 1085.)
                                        II. DISCUSSION
   A. Retroactivity of Proposition 47
       Defendant contends Proposition 47 retroactively reduced his convictions for
possession of heroin in both cases to misdemeanors under the doctrine of In re Estrada
(1965) 63 Cal.2d 740. Accordingly, he contends the trial court erred by imposing felony

                                             5
sentences in both cases. The Attorney General contends that defendant’s claim is moot
because the trial court granted defendant’s petitions for recall and designated the offenses
to be misdemeanors. In the alternative, the Attorney General claims Proposition 47 did
not retroactively reduce defendant’s convictions to misdemeanors.
       1. Legal Principles
       In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and
Schools Act, which reduced certain drug- and theft-related offenses to misdemeanors.
The law took effect on November 5, 2014. As relevant here, the act amended Health and
Safety Code section 11350 to make possession of a controlled substance punishable as a
misdemeanor except for certain categories of offenders not at issue here. Proposition 47
also created a new resentencing scheme for persons serving felony sentences for those
offenses made misdemeanors by the act. (§ 1170.18, subd. (a).) Under the new
resentencing scheme, a person currently serving a sentence for a felony conviction may
petition for recall if the person would have been guilty of a misdemeanor had Proposition
47 been in effect at the time of the offense.
       2. The Retroactivity Claim is Moot
       The Attorney General contends defendant’s claim is moot because his convictions
were already designated misdemeanors, such that any ruling by this court on defendant’s
claim will have no practical effect. Defendant contends his appeal is not moot because
we must rule on his claim, set forth in Section II.B. below, that the court erred by
granting a term of probation in case No. SS141959A. Defendant also argues that the trial
court could reduce the restitution fines on remand. And he contends he may suffer
unspecified collateral consequences at some time in the future. He also contends this
issue is a matter of continuing public interest that is likely to recur. We conclude the
issue of whether Proposition 47 acts retroactively is moot in this case.
       “A case is moot when the reviewing court cannot provide the parties with
practical, effectual relief.” (City of San Jose v. International Assn. of Firefighters, Local

                                                6
230 (2009) 178 Cal.App.4th 408, 417.) “When no effective relief can be granted, an
appeal is moot and will be dismissed.” (In re Jessica K. (2000) 79 Cal.App.4th 1313,
1315-1316.) The Attorney General argues that we are without the power to grant any
effective relief because the trial court already reduced defendant’s convictions to
misdemeanors.
       In response, defendant contends a ruling would grant him effective relief because
the trial court could reduce the amount of the restitution fines it imposed. As set forth
above, the trial court imposed a $300 restitution fine in both cases prior to granting the
recall petitions. After the court granted the petitions and resentenced defendant, he
requested that the fines and fees be reduced to “misdemeanor fines.” Under section
1202.4, subdivision (b)(1), a court may impose a restitution fine for a misdemeanor
ranging from $140 (starting January 1, 2013) to $1,000, or from $150 (starting January 1,
2014) to $1,000. Under this statute, the trial court had the discretion to impose a $300
fine regardless of whether defendant was convicted of a misdemeanor or a felony. The
trial court explicitly rejected defendant’s requests to reduce the fees even after
designating the offenses to be misdemeanors. Nothing in the record suggests the court
would impose lesser fines on remand.
       Second, defendant contends he may still face collateral consequences if this court
does not grant relief. For example, he contends his sentence may serve as a prior
conviction. But defendant’s conviction under Health and Safety Code section 11350
could only be used to enhance a future sentence if he served a prison term for the prior
conviction. (§ 667.5, subd. (b).) Defendant served no such prison term. Furthermore,
subdivision (k) of section 1170.18 provides: “Any felony conviction that is recalled and
resentenced under subdivision (b) or 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

                                              7
Section 29800) of Division 9 of Title 4 of Part 6.”4 (§ 1170.18, subd. (k), italics added.)
This language would prohibit the use of defendant’s recalled sentence as a future
enhancement for a prior felony. Defendant nonetheless contends that some future statute
could be enacted such that he would be further punished based on the recalled sentence;
that the sentence could be used to deny him probation; or that the sentence may affect his
right to own firearms in the future if his prior felonies are reversed. Defendant’s
concerns in this regard are speculative. “ ‘[A]s a general rule it is not within the function
of a court to act upon and decide a moot question or speculative, theoretical, or abstract
question or proposition, or a purely academic question, or to give an advisory opinion on
such a question or proposition.’ ” (Wilson v. Los Angeles County Civil Service
Commission (1952) 112 Cal.App.2d 450, 453, quoting 1 C.J.S., Actions, § 17a.)
       Defendant also contends this appeal presents an important issue of continuing
public interest that is likely to recur. (See City of San Jose v. International Assn. of
Firefighters, Local 230, supra, 178 Cal.App.4th at p. 417 [even if a case is technically
moot, the court has inherent power to decide it where the issues presented are important
and of continuing interest].) But the subset of persons in defendant’s circumstances is
small, and the subset of such persons who could articulate some prejudice is even
smaller. The circumstances in this case arose during a unique and limited time period
during which voters enacted Proposition 47 after the entry of defendant’s plea but before
the imposition of his sentence. Those circumstances will not occur again in the future.
       We cannot provide the parties with any practical, effectual relief. Furthermore,
this is not a matter of continuing public interest that is likely to recur. We therefore
conclude this claim is moot.




       4
        Defendant may not possess firearms regardless of this conviction because he has
suffered numerous prior felony convictions.
                                              8
   B. The Validity of Granting Probation in Case No. SS141959A
       Defendant contends the trial court lacked the power to grant probation in case
No. SS141959A once the court imposed a jail term. Defendant argues that a trial court
may not impose and execute a felony sentence and, in the same case, place conditions of
probation because the court loses jurisdiction once it imposes a custodial jail or prison
term. The Attorney General responds that the court did not impose a prison term at the
same time it granted probation because the prison sentence, having been recalled, was
never executed.
       We agree with the Attorney General. The general rule is that a court loses
jurisdiction once the defendant is remanded into custody to serve the term imposed. Our
high court has said that “[u]nder the general common law rule, a trial court is deprived of
jurisdiction to resentence a criminal defendant once execution of the sentence has
commenced. [Citations.] Where the trial court relinquishes custody of a defendant, it
also loses jurisdiction over that defendant. [Citation.] If, however, the trial court ‘retains
in itself the actual or constructive custody of the defendant and the execution of his
sentence has not begun,’ the court may vacate and modify the sentence.” (People v.
Karaman (1992) 4 Cal.4th 335, 344.) Here, the trial court imposed a custodial term, but
the court immediately recalled the sentence upon granting defendant’s petition under
section 1170.18. Only then did the court grant probation. Because defendant was never
taken into custody, the court never lost jurisdiction over him.
       Moreover, as defendant acknowledges, Proposition 47 statutorily grants trial
courts the jurisdiction to modify a custodial sentence. None of the authorities cited by
defendant in support of his argument concern the power of a court to grant probation after
recalling a sentence under Proposition 47. Nor does the language of that law forbid the
trial court from imposing probation upon recalling a sentence and designating the offense
a misdemeanor. We thus conclude this claim is without merit.



                                              9
   C. The Trial Court Erred By Ordering 365 Days in Jail in Case No. SS141959A for
      Driving Under the Influence
       In case No. SS141959A, defendant pleaded no contest to driving under the
influence of a drug. (Veh. Code., § 23152, subd. (e).) The trial court granted probation
and ordered defendant to serve 365 days in county jail as a condition of probation.
Defendant contends the court lacked the authority to order 365 days in jail as a condition
of probation because the maximum term of custody for driving under the influence of a
drug was six months. The Attorney General concedes the merit of this claim.
       We agree with defendant and we accept the Attorney General’s concession. When
a trial court grants probation, the court “may imprison the defendant in a county jail for a
period not exceeding the maximum time fixed by law in the case.” (§ 1203.1, subd. (a).)
A first violation of Vehicle Code section 23152 is punishable by a maximum of six
months in county jail. (Veh. Code, § 23536, subd (a).) Defendant had no prior
convictions for driving under the influence. Accordingly, the court erred by ordering 365
days in county jail as a condition of probation for the offense of driving under the
influence of a drug. We will therefore reverse the judgment in case No. SS141959A, and
we will remand the matter for resentencing to give the trial court “an opportunity to
restructure its sentencing choices.” (People v. Rodriguez (2009) 47 Cal.4th 501, 509.)
                                     III.   DISPOSITION
       In case No. SS131492A, the judgment is affirmed. In case No. SS141959A, the
judgment is reversed and the matter is remanded to the trial court for resentencing.




                                             10
                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Premo, J.
