Filed 1/22/16 P. v. Reynado CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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publication or ordered published for purposes of rule 8.1115(a).


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                 B263515

         Plaintiff and Respondent,                                          (Los Angeles County
                                                                            Super. Ct. Nos. BA381132 &
         v.                                                                                 BA375361)

DANE REYNALDO,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Edmund Wilcox Clarke, Jr., Judge. Affirmed.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.




                            _______________________________________
                                   INTRODUCTION
       Defendant Dane Reynaldo appeals from the partial denial of a petition for
resentencing under Proposition 47, the Safe Neighborhoods and Schools Act. He
contends that because the felony conviction imposed in case no. BA375361 was
reduced to a misdemeanor under Proposition 47, the on-bail enhancement imposed in
his subsequent felony case is now unauthorized and must be stricken. We conclude
Proposition 47’s resentencing procedure is not the proper mechanism to collaterally
attack an enhancement imposed on a non-qualifying felony conviction. Because
defendant was not convicted of a reducible felony in the subsequent case, we affirm the
trial court’s order denying the Proposition 47 petition.
                           PROCEDURAL BACKGROUND
       By information filed September 27, 2010, defendant was charged in case
no. BA375361 (the first case) with possession of methamphetamine, a felony (Health &
Saf. Code, § 11377, subd. (a)). On June 2, 2011, while that case was still pending,
defendant was charged by information in case no. BA381132 (the second case) with two
counts of deploying a destructive or explosive device with intent to injure (former
Pen. Code,1 § 12303.3; counts 1 and 2); one count of criminal threats (§ 422; count 3);
one count of possession of a firearm by a felon (former § 12021, subd. (a)(1); count 4);
four counts of possessing drugs for sale—specifically, cocaine (Health & Saf. Code,
§ 11351; count 5), methamphetamine (Health & Saf. Code, § 11378; count 6), marijuana
(Health & Saf. Code, § 11359; count 7), and ecstasy (Health & Saf. Code, § 11378;
count 9); and one count of possession of methamphetamine with a firearm (Health &
Saf. Code, § 11370.1, subd. (a); count 8).2 The information alleged all counts were


1
       Undesignated statutory references are to the Penal Code.
2
       The Deadly Weapons Recodification Act of 2010 repealed and recodified former
sections 12000 to 12809 without substantive change. (§§ 16000, 16005, 16010.)
Effective January 1, 2012, former section 12303.3 (counts 1 and 2) was recodified
without substantive change at section 18740; former section 12021, subdivision (a)



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committed while defendant was on bail in the first case (§ 12022.1), and that he
committed counts 5, 6, and 9 while personally armed with a firearm (§ 12022,
subd. (c)). The information also alleged one prison prior (§ 667.5, subd. (b)).
       On July 14, 2011, defendant entered no contest pleas and was found guilty in
both cases. In accordance with the plea agreement, the court sentenced him to a total of
nine years and eight months in prison. In the first case, the court sentenced defendant to
16 months (Health & Saf. Code, § 11377, subd. (a)), to run concurrent with the sentence
in the second case. In the second case, the court selected count 1 (former § 12303.3) as
the base term, and sentenced defendant to the middle term of five years. The court
added eight months for count 3 (§ 422), one year for count 5 (Health & Saf. Code,
§ 11351), one year for count 8 (Health & Saf. Code, § 11370.1, subd. (a)), and two years
for the on-bail enhancement (§ 12022.1), to run consecutive. The court dismissed
counts 2, 4, 6, 7, and 9, as well as the firearm enhancement and the prison prior.
       On December 26, 2014, defendant filed a petition for recall and resentencing
under Proposition 47 (§ 1170.18, subds. (a)—(b)) to reclassify his felony conviction in
the first case as a misdemeanor, and to dismiss the on-bail enhancement—but not any of
the substantive convictions—in the second case. The court held a contested hearing on
March 11, 2015. The court granted the petition in the first case and reduced defendant’s
conviction to a misdemeanor. In the second case, the People argued the court lacked
authority to strike the enhancement under section 1170.18 because the underlying
conviction remained a felony. The defense argued section 1170.18 contemplates such
a collateral attack, because once a felony conviction is reduced to a misdemeanor, it
cannot be used to enhance the sentence in a subsequent case. Without reaching the
People’s jurisdictional argument, the court found as a matter of law that an on-bail




(count 4) was recodified without substantive change at section 29800, subdivision (a).
(Stats.2010, ch. 711 (S.B.1080), § 4 [repealed]; stats. 2010, ch. 711 (S.B.1080), § 6
[reenacted].)



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enhancement is not reducible under Proposition 47, and denied the request. This timely
appeal followed.
                                    CONTENTIONS
       Defendant contends that because the conviction in his first case was reduced
from a felony to a misdemeanor, the on-bail enhancement in his subsequent case is no
longer authorized, and should have been stricken.
                                     DISCUSSION
       The issue before us is a question of law, which we review de novo. (People v.
Cromer (2001) 24 Cal.4th 889, 893–894.)
       1.     Principles of Statutory Construction
       As with any case involving statutory interpretation, our primary goal is to
ascertain and effectuate the lawmakers’ intent. (People v. Park (2013) 56 Cal.4th 782,
796.) Because Proposition 47 was enacted by the electorate, it is the voters’ intent that
controls. (Ibid.) “Nonetheless, our interpretation of a ballot initiative is governed by
the same rules that apply in construing a statute enacted by the Legislature.” (Ibid.)
       To determine intent, we first examine the statutory language and give the words
their ordinary meaning. (People v. Park, supra, 56 Cal.4th at p. 796.) “Words and
phrases must be construed according to the context and the approved usage of the
language; but technical words and phrases, and such others as may have acquired
a peculiar and appropriate meaning in law, must be construed according to such peculiar
and appropriate meaning.” (§ 7, subd. (16).) If the statutory language is unambiguous,
its plain meaning controls; if the statutory language is ambiguous, we may refer to
“ ‘other indicia of the voters’ intent, particularly the analyses and arguments contained
in the official ballot pamphlet.’ ” (People v. Rizo (2000) 22 Cal.4th 681, 685.)
       2.     Proposition 47
       On November 4, 2014, California voters approved Proposition 47, the Safe
Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4,
2014).) The initiative aimed to “ensure that prison spending is focused on violent and
serious offenses, maximize alternatives for nonserious, nonviolent crime, and to invest


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the savings generated from” the new act in elementary and high school programs,
victims’ services, and mental health and drug treatment. (Ballot Pamp., Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Proposition 47 targets these goals in four
ways: (1) it amends the Penal Code and Health and Safety Code to reduce certain
property crimes and possessory drug offenses from felonies or wobblers3 to
misdemeanors; (2) it allows people serving felony sentences for newly-reduced offenses
to ask the court to resentence them as misdemeanants (§ 1170.18, subds. (a), (b)); (3) it
allows people who have finished serving a qualified felony sentence to ask the court to
reclassify the conviction as a misdemeanor (§ 1170.18, subds. (f)–(h)); and (4) it creates
a Safe Neighborhoods and Schools Fund to be financed with savings generated by the
changes to the sentencing laws (Gov. Code, § 7599 et seq.). (Ballot Pamp., supra, text
of Prop. 47, § 3, p. 70.)
       The resentencing statute provides that 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 Proposition 47, “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 Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.” (§ 1170.18, subd. (a), emphasis
added.) If “the petitioner satisfies [those] criteria,” the court must usually recall his
felony sentence and resentence him to a misdemeanor. (§ 1170.18, subd. (b).) Under
the plain language of the statute, section 1170.18, subdivisions (a) and (b) applies only
to defendants who are (1) currently serving a sentence, (2) for a felony conviction, and
(3) the conviction would have been a misdemeanor if the act had been in effect when
they were sentenced. The question before us, then, is whether defendant’s on-bail
3
       As the Legislative Analyst explained, “some crimes . . . can be charged as either
a felony or a misdemeanor. These crimes are known as ‘wobblers.’ Courts decide how
to charge wobbler crimes based on the details of the crime and the criminal history of
the offender.” (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.)



                                              5
enhancement constitutes “a conviction . . . of a felony” under section 1170.18.
(§ 1170.18, subd. (a).)
       Section 12022.1 provides a two-year status enhancement if a defendant commits
a second felony while on bail for an earlier felony. (§ 12022.1, subd. (b).) The statute
does not define a distinct criminal offense; instead, it sets forth conditions under which
a defendant convicted of a substantive offense may have his sentence “enhanced”—i.e.,
increased. An enhancement is “ ‘an additional term of imprisonment added to the base
term’ (Cal. Rules of Court, rule 4.405(3)), which cannot be imposed without
a conviction for the substantive offense.” (People v. Maultsby (2012) 53 Cal.4th 296,
299–300.) “For that reason alone, an enhancement cannot be equated with an offense.”
(People v. Anderson (2009) 47 Cal.4th 92, 118.) Because section 12022.1 is a status
enhancement, not a substantive offense, we conclude it does not constitute
“a conviction . . . of a felony” under the plain language of section 1170.18.
       Notwithstanding this plain statutory language, defendant contends that though
section 1170.18 does not explicitly allow recall and resentencing in his second case, we
should construe the statute broadly to give full effect to subdivision (k), which provides
any conviction reduced under Proposition 47 “shall be considered a misdemeanor for all
purposes.” (§ 1170.18, subd. (k).) Specifically, because the on-bail enhancement
(§ 12022.1) “is limited to primary and secondary felony offenses, it exempts
defendants . . . who are not ultimately convicted of the primary offense.” (People v.
Buycks (2015) 241 Cal.App.4th 519, 527 (Buycks).) Likewise, the enhancement statute
provides that “ ‘[i]f the primary offense conviction is reversed on appeal, the
enhancement shall be suspended pending retrial of that felony. Upon retrial and
reconviction, the enhancement shall be reimposed.’ ” (Ibid., quoting § 12022.1,
subd. (g).) In essence, defendant argues that because Proposition 47 specifies that any
felony conviction reduced to a misdemeanor “shall be considered a misdemeanor for all
purposes” (§ 1170.18, subd. (k)), the misdemeanor sentence in his primary case is
indistinguishable from reduction or reversal on appeal. Therefore, he claims the on-bail
enhancement to the secondary offense is now unauthorized under section 12022.1,


                                             6
subdivision (g). (Citing People v. Flores (1979) 92 Cal.App.3d 461, 470–473.) We do
not resolve this issue, however, because regardless of whether Proposition 47
contemplates a collateral challenge to an on-bail enhancement that is not otherwise part
of resentencing in a second case, defendant provides no authority for the proposition
that he may use section 1170.18’s summary resentencing provisions to mount such an
attack.
          In People v. Buycks, our colleagues in Division Eight held that when
a defendant’s primary felony has been reduced to a misdemeanor, a court conducting
a full resentencing in the second case cannot reimpose the on-bail enhancement.
(Buycks, supra, 241 Cal.App.4th at pp. 526–528 & fn. 2.) Unlike the circumstances
before us, in Buycks the defendant had been convicted of a reducible felony in the
second case. Because a felony conviction in his second case was eligible for recall and
resentencing, the related sentence enhancement was properly before the court under
section 1170.18, subdivisions (a) and (b). Here, by contrast, defendant’s felony
convictions are not eligible for reduction. Proposition 47 did not reduce the penalty for
using an explosive or destructive device to injure (§ 12303.3; count 1), or for criminal
threats (§ 422; count 3), possession of cocaine for sale (Health & Saf. Code, § 11351;
count 5), or possession of methamphetamine with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a); count 8). Because defendant is not “currently serving a sentence
for a conviction . . . of a felony” that would have been a misdemeanor under
Proposition 47, he may not avail himself of the initiative’s summary resentencing
provisions.
          Although we conclude that Proposition 47’s summary resentencing provisions
cannot be used to strike a sentence enhancement in a case without a qualifying felony
conviction, we acknowledge subdivision (k)’s requirement that “[a]ny felony conviction
that is recalled and resentenced under subdivision (b) . . . shall be considered
a misdemeanor for all purposes[.]” (§ 1170.18, subd. (k).) As such, nothing in this
opinion is intended to diminish or abrogate any other remedy that may be available to
defendant to address the effects of his conviction’s reclassification in the first case. We


                                              7
simply hold that the court lacked the statutory authority to resentence defendant under
section 1170.18. Accordingly, we affirm the court’s partial denial of his petition.
                                     DISPOSITION
       The order denying defendant’s petition for recall and resentencing is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                       LAVIN, J.

WE CONCUR:




       ALDRICH, Acting P. J.




                   *
       JONES, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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