Filed 2/18/16 P. v. Delaflor CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041906
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS142271A)

         v.

RAUL DREW DELAFLOR,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         In September of 2014, defendant Raul Drew Delafor pleaded no contest to
possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) as a
felony. In November of 2014, the electorate passed Proposition 47, which reclassified
certain felony drug and theft related offenses as misdemeanors, including possession of
a controlled substance. In December of 2014, at his sentencing hearing, defendant
requested the trial court designate his offense as a misdemeanor pursuant to
Proposition 47, but the trial court declined to do so. The trial court imposed a felony
sentence, then granted defendant’s petition to recall his sentence (Pen. Code, § 1170.18,
subd. (a)),1 reclassified his offense as a misdemeanor, suspended imposition of sentence,
and placed defendant on informal probation for three years.


         1
             All further statutory references are to the Penal Code unless otherwise noted.
       On appeal, defendant contends that Proposition 47 applied retroactively to his
offense and thus that the trial court erred by denying his request to reduce it to a
misdemeanor prior to sentencing. Defendant also contends his trial counsel was
ineffective for failing to object when the trial court imposed a $300 restitution fine—the
minimum fine for a felony case—when it recalled his sentence and imposed a
misdemeanor sentence.
       For reasons that we will explain, we conclude that the issue of Proposition 47’s
retroactivity is moot in this case, and that defendant’s trial counsel was not ineffective
for failing to object to the $300 restitution fine imposed as part of the misdemeanor
resentencing process. We will therefore affirm the order placing defendant on informal
probation.

                                  II.    BACKGROUND
       On September 3, 2014, an officer saw defendant at a McDonald’s restaurant. The
officer knew that defendant had an outstanding felony warrant. The officer searched
defendant, discovering two hypodermic needles. One needle was empty; the other
contained 0.16 grams of heroin.
       Defendant’s criminal history consisted of juvenile adjudications for being under
the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and
destruction of evidence (§ 135) and adult convictions of one felony—being a felon or
narcotics addict in possession of a firearm (§ 29800, subd. (a)(1))—and one
misdemeanor—possession of an unmarked firearm (§ 23920).
       On September 4, 2014, the District Attorney filed a complaint alleging that
defendant had committed felony possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a); count 1) and misdemeanor possession of a hypodermic needle
or syringe (Bus. & Prof. Code, § 4140; count 2). On September 24, 2014, defendant
pleaded no contest to count 1, possession of a controlled substance, as a felony.



                                              2
       On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), effective
Nov. 5, 2014.) Proposition 47 reclassified certain felony drug and theft related offenses
as misdemeanors. As relevant to this case, one of the offenses reclassified as a
misdemeanor was possession of a controlled substance. (Health & Saf. Code, § 11377,
subd. (a).) Through Proposition 47, voters also enacted new statutory provisions
whereby a person serving a felony sentence for a reclassified offense can petition for
a recall of his or her sentence. (§ 1170.18, subd. (a).)
       Defendant’s sentencing hearing was held on December 3, 2014. At that hearing,
defendant’s trial counsel argued that Proposition 47 applied “to retroactively reduce” the
heroin possession offense to a misdemeanor and thus that “it would be an illegal
sentence” to impose felony punishment for that offense. Defendant’s trial counsel asked
the trial court to designate that offense as a misdemeanor “by operation of law.” He
indicated that if the trial court declined to do so, he would file a section 1170.18 petition
after sentencing.
       The trial court found that Proposition 47 was not retroactive and denied
defendant’s motion to designate his offense as a misdemeanor. The trial court then
imposed sentence, denying probation and ordering defendant to serve a three-year jail
term. The trial court imposed a $300 restitution fine. (§ 1202.4, subd. (b)(1)). The trial
court dismissed count 2 (possession of a hypodermic needle or syringe).
       In open court immediately after the trial court imposed sentence, defendant filed
a petition to recall his sentence. (See § 1170.18, subd. (a).) The prosecutor agreed that
defendant appeared to be eligible for resentencing. The trial court recalled defendant’s
felony sentence, designated defendant’s heroin possession conviction as a misdemeanor,
then suspended imposition of sentence and placed defendant on informal probation for
three years. The court again imposed a $300 restitution fine.



                                              3
        Defendant thereafter filed a notice of appeal, indicating his appeal was based on
the sentence or other matters occurring after the plea that do not affect the validity of the
plea.

                                    III.    DISCUSSION
        Defendant contends that Proposition 47 applied retroactively to his offense and
thus that the trial court erred by denying his request to reduce it to a misdemeanor prior to
sentencing. Defendant also contends his trial counsel was ineffective for failing to object
when the trial court imposed a $300 restitution fine—the minimum fine for a felony
case—when it recalled his sentence and imposed a misdemeanor sentence.
        A.     Legal Background: Proposition 47
        As noted above, Proposition 47 was a voter initiative that was enacted on
November 4, 2014 and became effective the following day, November 5, 2014.
        In section 2 of the initiative, the electorate declared that it was enacting
Proposition 47 “to ensure that prison spending is focused on violent and serious offenses,
to maximize alternatives for nonserious, nonviolent crime, and to invest the savings
generated from this act into prevention and support programs in K–12 schools, victim
services, and mental health and drug treatment.” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 2.)
        Section 3 of the initiative specified six items that comprised the “purpose and
intent of the people of the State of California” in enacting Proposition 47: “(1) Ensure
that people convicted of murder, rape, and child molestation will not benefit from this
act. [¶] (2) Create the Safe Neighborhoods and Schools Fund. . . . [¶] (3) Require
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession, unless the defendant has prior convictions for specified violent or
serious crimes. [¶] (4) Authorize consideration of resentencing for anyone who is
currently serving a sentence for any of the offenses listed herein that are now



                                               4
misdemeanors. [¶] (5) Require 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. [¶] (6) This measure will save significant state corrections dollars on an
annual basis. . . . This measure will increase investments in programs that reduce crime
and improve public safety, . . . which will reduce future expenditures for corrections.”
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3.)
       The statutes amended by Proposition 47 include Health and Safety Code
section 11350, which specifies the punishment for possession of certain controlled
substances. Health and Safety Code section 11350 now provides in subdivision (a) that
“every person who possesses [heroin] . . . shall be punished by imprisonment in a county
jail for a period of not more than one year,” unless the defendant has certain disqualifying
prior convictions.
       Proposition 47 also created a new statutory remedy for “[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” had Proposition 47 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 the statutes that were “amended or added by
this act.” (Ibid.) If, “[u]pon receiving a petition under subdivision (a),” the trial court
finds that the petitioner is eligible for resentencing, “the petitioner’s felony sentence shall
be recalled and the petitioner 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” (id., subd. (b)), which is defined in section 1170.18,
subdivision (c) as “an unreasonable risk that the petitioner will commit” one of the




                                               5
“super strike” offenses listed in section 667, subdivision (e)(2)(C)(iv).2 (See People v.
Rivera (2015) 233 Cal.App.4th 1085, 1092.) “In exercising its discretion, the court may
consider all of the following: [¶] (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to victims, the length of prior
prison commitments, and the remoteness of the crimes. [¶] (2) The petitioner’s
disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any other
evidence the court, within its discretion, determines to be relevant . . . .” (§ 1170.18,
subd. (b).)
       B.     Prejudice/Mootness
       We first determine whether a reversal of the orders in this case would have any
practical effect. “ ‘An action that involves only abstract or academic questions of law
cannot be maintained. [Citation.] And an action that originally was based on a
justiciable controversy cannot be maintained on appeal if all the questions have become
moot by subsequent acts or events. A reversal in such a case would be without practical
effect, and the appeal will therefore be dismissed.’ [Citation.]” (People v. Herrera
(2006) 136 Cal.App.4th 1191, 1198 (Herrera).)


       2
         The following felonies are listed in section 667, subdivision (e)(2)(C)(iv):
“(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under
14 years of age, and who is more than 10 years younger than he or she as defined by
Section 288a, sodomy with another person who is under 14 years of age and more than
10 years younger than he or she as defined by Section 286, or sexual penetration with
another person who is under 14 years of age, and who is more than 10 years younger
than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a
child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense,
including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
[¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault
with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of
subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction,
as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious
and/or violent felony offense punishable in California by life imprisonment or death.”

                                              6
       The Attorney General contends that even if Proposition 47 required defendant’s
offense to be designated as a misdemeanor prior to sentencing, defendant was not
prejudiced by the imposition of an initial felony sentence, because after the trial court
granted his recall petition, defendant received the exact misdemeanor sentence he would
have received if the trial court had simply imposed a misdemeanor sentence in the first
instance.
       Defendant asserts that he was prejudiced by the initial felony sentence in two
respects: he was ordered to pay a “restitution fine at the minimum felony level” and he is
“subject to the life-long gun restriction” provided by section 1170.18, subdivision (k).
              1.       Firearm Possession Restriction
       Under subdivision (k) of section 1170.18, “Any felony conviction that is recalled
and resentenced under subdivision (b) . . . 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.”
       However, prior to the instant case, defendant suffered a felony conviction for
being a felon or narcotics addict in possession of a firearm (§ 29800, subd. (a)(1)). Thus,
even before his conviction in this case, defendant had a felony conviction that precluded
him from possessing a firearm. (See ibid.)
              2.       Felony Restitution Fine
       When the trial court imposed the initial felony sentence for defendant’s
conviction, it imposed a $300 restitution fine pursuant to section 1202.4,
subdivision (b)(1). After recalling defendant’s felony sentence, designating his offense
as a misdemeanor, and placing defendant on informal probation, the trial court also
imposed a $300 restitution fine. Defendant did not object or request the trial court
impose a lower fine.



                                              7
       Under section 1202.4, subdivision (b)(1), the minimum restitution fine for a felony
conviction is $300 and the minimum restitution fine for a misdemeanor conviction is
$150. Defendant’s prejudice argument is based on the assumption that, if the trial court
had not imposed an initial felony sentence, it would have imposed the minimum
restitution fine for a misdemeanor. The Attorney General points out that the $300
restitution fine was well within the trial court’s discretion in a misdemeanor case, since
the maximum restitution fine is $1,000. (See § 1202.4, subd. (b)(1).)
       On this record, given that the trial court did not expressly state an intent to order
the minimum restitution fine under section 1202.4, subdivision (b)(1), defendant has not
shown that imposition of the $300 fine for his misdemeanor conviction was a result of the
trial court’s imposition of an initial felony sentence.
              3.      Conclusion – Prejudice/Mootness
       Defendant has not shown that as to him, resolution of the issue presented would
have any “practical effect.” (Herrera, supra, 136 Cal.App.4th at p. 1198.) Thus, we
need not address the merits of defendant’s claim regarding Proposition 47’s retroactivity.
       C.     Ineffective Assistance of Counsel
       Defendant contends his trial counsel was ineffective for failing to object when the
trial court imposed the $300 restitution fine when it recalled his sentence and imposed a
misdemeanor sentence.
       In order to establish that trial counsel was ineffective, defendant must show
(1) that counsel’s performance was deficient because it was not “the result of reasonable
professional judgment” and “outside the wide range of professionally competent
assistance” (Strickland v. Washington (1984) 466 U.S. 668, 690) and (2) prejudice, that
is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (id. at p. 694).
       As noted above, in imposing the $300 restitution fine upon resentencing
defendant, the trial court did not expressly state an intent to order the minimum

                                               8
restitution fine under section 1202.4, subdivision (b)(1). Thus, defendant has not shown
that an objection by his trial counsel would have resulted in the imposition of a lower
fine. Since defendant has not met his burden to show prejudice, we conclude that his trial
counsel was not ineffective.

                                  IV.    DISPOSITION
       The order placing defendant on informal probation is affirmed.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




People v. Delaflor
H041906
