California Court of Appeals, Fourth District, First Division
June 30, 2015
THE PEOPLE, Plaintiff and Respondent,
VERONICA LORRAINE DeHOYOS et al., Defendants and Appellants.
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEALS from a judgment of the Superior Court of San Diego County, No. SCD252670 Peter C. Deddeh, Gale E. Kaneshiro, and Lisa C. Schall, Judges.
[Copyrighted Material Omitted]
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant Veronica Lorraine DeHoyos.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant Gary Richard DeGraff.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Sean M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gary Richard DeGraff and Veronica Lorraine DeHoyos of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court suspended imposition of their sentences for three years and granted them formal probation.
They both appeal. DeGraff contends we must reverse his conviction because the trial court erred in failing to suppress the evidence against him. DeHoyos contends recent amendments to Health and Safety Code section 11377 require we reduce her conviction to a misdemeanor and remand the matter for resentencing. We are unpersuaded by these contentions and affirm the judgment.
On November 4, 2014, while this appeal was pending, The Safe Neighborhoods and Schools Act (Proposition 47). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, California voters approved § 1, p. 70.) It became effective the next day. (Cal. Const., art. II, § 10, subd. (a).) Among its provisions, Proposition 47 amended Health and Safety Code section 11377. (Voter Information Guide, Gen. Elec, supra, text of Prop. 47, § 13, p. 73.) Prior to the amendment, possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), was punishable as either a felony or a misdemeanor. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 [183 Cal.Rptr.3d 129].) As a result of the amendment, the offense is now punishable as a misdemeanor "unless the defendant 'has one or more prior convictions' for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv)-which lists serious and violent felonies that are sometimes referred to as ' "super strike" offenses'-or for an offense that requires the defendant to register as a sex offender under section 290, subdivision (c)." (People v. Lynall, supra, at pp. 1108-1109.)
". . . 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 to recall that sentence and request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria 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.' (Id., subd. (b).)" (People v. Lynall, supra, 233 Cal.App.4th at p. 1109.)
DeHoyos contends Proposition 47 applies retroactively to her because her case was not final when Proposition 47 became effective. Consequently, she contends she is automatically entitled to resentencing under amended Health
and Safety Code section 11377 and is not required to utilize the resentencing procedure established in Penal Code section 1170.18.
The People do not dispute DeHoyos may be eligible for resentencing, but contend her remedy is limited to the procedure established in Penal Code section 1170.18. We agree with the People.
DeHoyos relies on the rule of retroactivity expressed in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]. "Under that rule, a legislative amendment that lessens criminal punishment is presumed to apply to all cases not yet final (the Legislature deeming its former penalty too severe), unless there is a 'saving clause' providing for prospective application." (People v. Smith (2015) 234 Cal.App.4th 1460, 1464-1465 [185 Cal.Rptr.3d 68]; see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1196 [171 Cal.Rptr.3d 234, 324 P.3d 88] [courts will assume, absent contrary evidence, the Legislature intended for an amended statute reducing punishment for a particular offense to apply to all defendants whose judgments are not yet final on the amended statute's operative date]; People v. Brown (2012) 54 Cal.4th 314, 323 [142 Cal.Rptr.3d 824, 278 P.3d 1182] [same].)
In this case, the parties do not dispute Proposition 47 lessens punishment and does not contain an express saving clause. However, our inquiry does not end here. (People v. Nasalga (1996) 12 Cal.4th 784, 793 [50 Cal.Rptr.2d 88, 910 P.2d 1380].) We must also consider whether there are any other indicia of a legislative intent for Proposition 47 to apply prospectively, rather than retroactively. (12 Cal.4th at pp. 793-794.) " '[W]hat is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.' " (Id. at p. 793.)
We believe the language of Proposition 47 states the Legislature's intent for prospective, not retroactive, application with the requisite clarity.
Section 3 of the initiative measure, which is labeled "Purpose and Intent, " states: "In enacting this act, it is the purpose and intent of the people of the State of California to: [¶]... [¶] (4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now 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." (Voter Information Guide, Gen. Elec, supra, text of Prop. 47, § 3, p. 70.) Collectively, these two paragraphs indicate a legislative intent not to permit the automatic application of Proposition 47 to anyone currently serving a sentence for a listed offense. Instead, they indicate a legislative intent to authorize and allow resentencing only for those individuals whose criminal history and risk assessment warrant it.
Our interpretation of the legislative intent is consistent with the Legislative Analyst's analysis of Proposition 47. In describing the initiative measure, the analysis stated, "This measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. . . . However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed. In addition, the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime." (Voter Information Guide, Gen. Elec, supra, analysis of Prop. 47 by Legislative Analyst, p. 36, italics added.)
Our interpretation of the legislative intent is also consistent with the ballot arguments. The opponents of the initiative measure argued the measure was "an invitation for disaster" in part because it would "make 10,000 felons eligible for early release." (Voter Information Guide, Gen. Elec, supra, rebuttal to argument in favor of Prop. 47, p. 38; id., argument against Prop. 47, p. 39.) The proponents of the initiative countered by arguing, "Proposition 47 does not require automatic release of anyone. There is no automatic release. It includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit." (Voter Information Guide, Gen. Elec, supra, rebuttal to argument against Prop. 47, p. 39.)
Given the legislative intent not to automatically apply Proposition 47 to persons currently serving sentences for listed offenses, DeHoyos has not established Proposition 47 applies retroactively to her. Instead, to be considered for resentencing, she must utilize the procedure specified in Penal Code section 1170.18. (People v. Noyan (2014) 232 Cal.App.4th 657, 672 [181 Cal.Rptr.3d 601].)
The judgment is affirmed.
Benke, J., and Haller, J., concurred.