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People v. Delapena

California Court of Appeals, Sixth District

July 30, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
JAMES EDWARD DELAPENA, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION [*]]

Santa Clara County Superior Court Superior Court No. C1369715, Hon. My-Le Jacqueline Duong

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COUNSEL

Sejal H. Patel, under appointment by the Court of Appeal, for Defendant and Appellant.

Sharon R. Wooden, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

BAMATTRE-MANOUKIAN, ACTING P.J.

I. INTRODUCTION

After his motion to suppress was denied, defendant James Edward Delapena pleaded no contest to felony possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a), count 1) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, former § 11364.1; count 2).

Defendant was placed on Proposition 36 probation (Pen. Code, § 1210.1) for two years. The trial court imposed a number of probation conditions, including a probation condition that bars defendant from possessing or consuming illegal drugs or alcohol, and a probation condition that bars defendant from owning or possessing firearms or ammunition. The trial court also ordered defendant to pay various fees and fines, including a $50 laboratory analysis fee for each of his two convictions. (Health & Saf. Code, § 11372.5, subd. (a).)

On appeal, defendant contends: (1) the trial court erred by denying his motion to suppress because his detention was not supported by reasonable suspicion of criminal activity and his pat search was not supported by reasonable suspicion that he was armed and dangerous; (2) his conviction of felony possession of methamphetamine must be reduced to a misdemeanor pursuant to Proposition 47; (3) the word “knowingly” should be inserted into the probation conditions referenced above; and (4) one of the laboratory analysis fees must be stricken.

For the reasons stated below, we will modify the challenged probation conditions and affirm the order of probation.

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II. BACKGROUND

A. Evidence at the Motion to Suppress

1. Testimony of Officer Stephens

Santa Clara Police Officer Peter Stephens was on duty at 5:14 a.m. on November 10, 2013, when he was dispatched to a residence near the intersection of Pierce Street and Benton Street in response to a “suspicious circumstances call.” The residence was under construction. A neighbor had observed people entering the property and had seen an unfamiliar pickup truck parked at the residence. The neighbor believed that the people might be stealing construction materials from the property. According to Officer Stephens, it is common for burglaries to occur at that time of day.

Three other police officers responded, and a fifth officer arrived later. The officers observed a pickup truck parked outside of the residence. The pickup truck had a motorcycle in the back. A female was inside the pickup truck. She told an officer that “her boyfriend was inside the residence and she didn’t know why.”

Officer Stephens and another officer decided to search the property “to make sure that there wasn’t a burglary occurring.” The officers entered the backyard through a gate, with their weapons drawn. It was dark out, so the officers used lights that were attached to their weapons. The officers saw two male subjects: defendant and Christopher Riehm. The officers asked the two men to come out of the backyard and sit on the front curb. Because the men were cooperative, the officers put their weapons back into their holsters as they walked to the front of the residence.

Officer Stephens noticed that both men were wearing baggy clothing and that they “had a lot of bulges in their pockets, ” which made him “a little concerned” about his safety. Officer Stephens was aware that people who enter construction sites to commit burglaries “often have tools and things to pry things open, ” so he was concerned that such tools “could be used as a weapon.” He therefore decided to pat search both men.

Before doing the pat searches, the officers asked the men why they were at the property. Defendant said that he was the owner of the pickup truck, that he had given Riehm a ride to the property, and that he had transported Riehm’s motorcycle as well. Riehm said that he did construction work at the property and that “he was allowed to be there.”

After speaking to the two men, Officer Stephens “still felt that there was a significant safety issue” as to himself and the other officers, so he proceeded

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to pat search the two men for weapons. Officer Stephens first pat searched Riehm, who consented to the search. He then asked defendant if he had any weapons. Defendant initially said “no, ” but then he “stopped himself and said that he did have a knife in one of his pockets.” Officer Stephens asked if he could pat search defendant for weapons, but defendant said, “No.” Officer Stephens decided to conduct the pat search anyway, since defendant had admitted to possession of a weapon and because he was concerned, based on the “other bulges” in defendant’s pockets, that defendant could have an additional weapon.

During the pat search, Officer Stephens found a folding, spring-action knife in defendant’s right front pocket. The other items in defendant’s front pockets did not feel like weapons. When patting down defendant’s rear pockets, Officer Stephens felt “the distinctive shape of a meth pipe.” He removed the pipe from defendant’s pocket and saw that it contained “black and white residue.” He therefore placed defendant under arrest for possession of drug paraphernalia, and he conducted a search incident to arrest. During that search, Officer Stephens found two containers of methamphetamine.

While Officer Stephens was conducting the pat searches, another officer contacted the owner of the property and determined that Riehm was authorized to be on the premises. Officer Stephens learned that information after he finished conducting the pat searches.

2. Defense Testimony

Riehm testified that at the time of the incident, he was living and working at the residence that was under construction. He lived in the garage, which was not under construction at the time.

Reihm did not know defendant prior to the day of the incident. At about 5:00 a.m., Riehm’s motorcycle had broken down in downtown San Jose. He saw that defendant had a truck, and he asked defendant to help him jump start the motorcycle. When that did not work, defendant offered to help Riehm transport the motorcycle home, and he asked if Riehm would give him “cash for gas.” When they arrived at the residence, defendant accompanied Riehm inside the garage so that Riehm could give him money. The police arrived as they were exiting the garage.

According to Riehm, the officers did not have their weapons drawn, but they told defendant and Riehm, “Just hold it right there, ” and they told the two men to sit on the curb. As they were being escorted to the curb, Riehm told the officers, “I’m allowed to be here, ” and he provided the phone number of the property owner. Riehm gave his consent when an officer asked to

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search him. Riehm heard an officer ask defendant whether he had any weapons on his person, and he heard defendant “volunteer[] something” in response, but he did not think that defendant handed the officer the knife.

The property owner, Mohsen Kazemi, testified that Riehm was allowed to stay in the garage while he worked at the residence.

Defendant testified that he and his girlfriend had just been to a doughnut shop at 5:00 a.m. on November 10, 2013, when Riehm approached and asked for help with his motorcycle. After unsuccessfully trying to jump start the motorcycle, defendant offered to “haul” the bike back to Riehm’s home, asking for “a few bucks for gas.” He loaded the motorcycle into his truck and drove Riehm home, then helped him unload the motorcycle. Riehm asked defendant to come into the garage so he could give defendant money. As they were leaving the garage, they saw the officers.

After the officers accompanied defendant and Riehm to the curb, one asked to search defendant. Defendant said, “No, I didn’t do nothing wrong.” The officer said, “Okay. I’m just going to pat you down.” The officer asked defendant if he had any “illegal weapons.” Defendant said, “No, ” but when the officer added, “Or knife, ” defendant said, “As a matter of fact I have a knife.” Defendant testified that he pulled the knife out of his pocket and gave it to an officer before Officer Stephens performed the pat search.

3. Rebuttal Evidence

Officer Stephens testified that defendant did not remove a knife from his pocket during the incident. Under the circumstances, he would not have allowed someone to reach into a pocket to produce a weapon.

B. Charges, Suppression Motion, Pleas, and Sentence

Defendant was charged with felony possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a), count 1) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, former § 11364.1; count 2).

Defendant filed a motion to suppress (Pen. Code, § 1538.5), alleging that he was detained and searched without probable cause, reasonable suspicion, or valid consent. Defendant asserted that the prosecution was obligated to justify the warrantless search and seizure. (See People v. Williams (1999) 20 Cal.4th 119, 130 [83 Cal.Rptr.2d 275, 973 P.2d 52].) The prosecution filed a written response, arguing that there was reasonable suspicion to justify defendant’s initial detention as well as the subsequent pat search, and that the

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methamphetamine was found pursuant to a lawful search incident to arrest. After a hearing, the trial court denied the motion to suppress.

A jury trial began on August 5, 2014, but on the second day of trial, defendant pleaded no contest to both charges. That same day, the trial court proceeded to sentence defendant, placing him on Proposition 36 probation (Pen. Code, § 1210.1) for two years and ordering him to pay various fees and fines, including two $50 laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)). The trial court imposed a number of probation conditions. One probation condition provided, “You shall not possess or consume illegal drugs or alcohol or knowingly be anywhere that illegal drugs are used or sold or where alcohol is the major item of sale.” Another probation condition provided, “You shall not own or possess or have in your custody or control any firearm or ammunition for the rest of your life.”

III. DISCUSSION

A. Denial of Motion to Suppress[*]

B. Proposition 47 Retroactivity

Defendant contends that this court must order his conviction of felony possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a)) reduced to a misdemeanor. He points out that after his conviction and sentencing, Proposition 47 was passed and took effect, reducing numerous property and drug offenses-including the crime of possession of methamphetamine-to misdemeanors. Defendant contends he is entitled to the retroactive application of Proposition 47’s reduced penalties because his case is not yet final.

The Attorney General contends that Proposition 47’s reduced penalty provisions do not operate retroactively and that defendant must file a petition for recall of his sentence pursuant to Penal Code section 1170.18 in order to have his conviction reduced to a misdemeanor.

1. Legal Background: Proposition 47

On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 reclassified certain felony

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drug and theft related offenses as misdemeanors and enacted a new statutory provision whereby a person serving a felony sentence for the reclassified offenses can petition for a recall of his or her sentence. (Pen. Code, § 1170.18, subd. (a).)

In section 2 of the initiative, the electorate declared that it was enacting the Act “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, p. 70.)

Section 3 of the initiative specified six items that comprised the “purpose and intent of the people of the State of California” in enacting the Act: “(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 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, supra, text of Prop. 47, § 3. p. 70.)

The statutes amended by Proposition 47 include Health and Safety Code section 11377, subdivision (a), which now provides that possession of certain controlled substances, including methamphetamine, “shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code[1] or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.” Thus, since the passage of Proposition 47, possession of

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methamphetamine is punishable as a misdemeanor unless the defendant has certain disqualifying prior convictions.

Proposition 47 also created Penal Code section 1170.18, which provides 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 under the act that added this section (‘this act’) had this act been in effect at the time of the offense.” (Pen. Code, § 1170.18, subd. (a).) Under Penal Code section 1170.18, subdivision (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 Sections 11350, 11357, or 11377 of the Health and Safety Code, ... as those sections have been amended or added by this act.”

Penal Code section 1170.18, subdivision (b) specifies the procedure for a trial court to follow “[u]pon receiving a petition under subdivision (a).” If the trial court finds that “the petitioner satisfies the criteria in subdivision (a), ... 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” (Pen. Code, § 1170.18, subd. (b)), which is defined in Penal Code section 1170.18, subdivision (c) as “an unreasonable risk that the petitioner will commit” one of the “super strike” offenses listed in Penal Code section 667, subdivision (e)(2)(C)(iv). (See ante, fn. 1.) “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 in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.18, subd. (b).)

Proposition 47 also created a remedy by which “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, ” may have his or her felony conviction or convictions designated as misdemeanors. (Pen. Code, § 1170.18, subd. (f).) Such a person “may file an application before the trial court that entered the judgment of conviction in his or her case” (ibid.), and “[i]f the application satisfies the criteria..., the court shall designate the felony offense or offenses as a misdemeanor” (id., subd. (g)).

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2. Legal Background: Retroactivity

Penal Code section 3 specifies that no part of the Penal Code is retroactive, “unless expressly so declared.” Penal Code section 3 “provides the default rule” regarding retroactivity, “codifying ‘the time-honored 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.]” (People v. Brown (2012) 54 Cal.4th 314, 319 [142 Cal.Rptr.3d 824, 278 P.3d 1182] (Brown).)

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 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada). (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. [Citation.]” (Ibid., fn. omitted.)

In Estrada, the defendant was convicted of escape without force or violence in violation of Penal Code former section 4530. (Estrada, supra, 63 Cal.2d at p. 743.) After his commission of the act, but before his conviction and sentence, the applicable statutes were amended so as to reduce the penalties for an escape without force or violence. (Ibid.)The Estrada court identified “[t]he problem” as “one of trying to ascertain the legislative intent, ” and it specified that “the problem” would be the same even if the amendment had become effective while an appeal was pending. (Id. at p. 744.)

The Estrada court concluded that the Legislature must have intended that the amended statutes “should prevail, ” explaining: “When the Legislature amends a statute so as to lessen the punishment[, ] it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745.)

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“The rule in Estrada, of course, is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793 [50 Cal.Rptr.2d 88, 910 P.2d 1380], fn. omitted (Nasalga); see Estrada, supra, 63 Cal.2d at p. 747 [“where there is an express or implied saving clause, ” the prior statute “should continue to operate as to past acts”].) If there is no express saving clause, one will be implied if the Legislature or electorate has “demonstrate[d] its intention with sufficient clarity that a reviewing court can discern and effectuate it.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1049 [36 Cal.Rptr.2d 74, 884 P.2d 1022] (Pedro T.).)

The “functional equivalent of a saving clause” was included in Proposition 36, the Three Strikes Reform Act of 2012 (the Reform Act). (People v. Yearwood (2013) 213 Cal.App.4th 161, 172 [151 Cal.Rptr.3d 901] (Yearwood).) The Reform Act “change[d] the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment” by amending Penal Code sections 667 and 1170.12. (Yearwood, supra, at p. 167.) Pursuant to those amendments, life sentences now may be imposed only in “cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor.” (Ibid.) The Reform Act also enacted a new statute, Penal Code section 1170.126, which “created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. [Citation.]” (Yearwood, supra, at p. 168.)

The Yearwood defendant had been convicted of unlawfully possessing marijuana in prison and sentenced as a third strike offender prior to the Reform Act, but his conviction was not yet final. (Yearwood, supra, 213 Cal.App.4th at p. 167.) Had he been sentenced after the Reform Act, it was “undisputed” that he would not have been sentenced to an indeterminate life term. (213 Cal.App.4th at p. 168.) The appellate court considered whether it could issue an order that he be resentenced, or whether his remedy was “limited to filing a petition for a recall of his sentence in compliance with [Penal Code] section 1170.126.” (Ibid.) The court acknowledged that the petition procedure could potentially have different consequences for the defendant, since under Penal Code section 1170.126, the trial court could deny his resentencing petition if it found that he posed “an unreasonable public safety risk, ” whereas that “discretionary finding” was not a component of the amended versions of Penal Code sections 667 and 1170.12. (213 Cal.App.4th at p. 168.)

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The Yearwood defendant argued that the Reform Act should apply retroactively, based on Estrada, because the Reform Act reduced the punishment for his offense. The Yearwood court disagreed, finding that “[t]he Estrada rule does not apply to the [Reform] Act because Penal Code section 1170.126 operates as the functional equivalent of a saving clause.” (Yearwood, supra, 213 Cal.App.4th at p. 172.) The court examined the language of Penal Code section 1170.126, subdivision (b), which provides, “Any person serving an indeterminate term of life imprisonment” imposed for a third strike conviction “may file a petition for a recall of sentence.” The court found this phrase was “not ambiguous” and that Penal Code section 1170.126 “is correctly interpreted to apply to all prisoners serving an indeterminate life sentence imposed under the former three strikes law." (213 Cal.App.4th at p. 175.)[2]

3. Analysis

Defendant contends the electorate intended the reduced penalty provisions of Proposition 47 to apply to all cases that were not yet final at the time the initiative was enacted. Defendant also contends that retroactive application of Proposition 47’s reduced penalty provisions is required based on state and federal principles of equal protection.

We first address the question of whether retroactive application of Proposition 47’s reduced penalty provisions is required under Estrada. As noted above, the question entails determining the intent of the electorate (Estrada, supra, 63 Cal.2d at p. 744), which may be signaled by the inclusion of “either an express saving clause or its equivalent” (Nasalga, supra, 12 Cal.4th at p. 793; see Estrada, supra, at p. 747).

Although Proposition 47 does not have an express saving clause, it did create Penal Code section 1170.18, which is functionally equivalent to a saving clause. (See Nasalga, supra, 12 Cal.4th at p. 793; Pedro T., supra, 8 Cal.4th at p. 1049; Estrada, supra, 63 Cal.2d at p. 747.) Under Penal Code section 1170.18, subdivision (a), a person who is “currently serving a sentence for a conviction” may petition for a recall of sentence. Like the resentencing petition process created by the Reform Act, the resentencing petition process contained in Penal Code section 1170.18, subdivision (a)

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expressly applies to persons who are “currently serving a sentence” for a crime that would have been a misdemeanor after the passage of Proposition 47. (Cf. Pen. Code, § 1170.126, subd. (b); see Yearwood, supra, 213 Cal.App.4th at p. 173.) By setting forth specific procedures as to those persons who were “currently serving a sentence” at the time the initiative took effect (Pen. Code, § 1170.18, subd. (a)), the electorate effectively and clearly “demonstrate[d] its intention” that such persons follow those procedures before being resentenced (Pedro T., supra, at p. 1049).

Defendant argues that by providing a separate remedy for persons who have completed their sentence (see Pen. Code, § 1170.18, subd. (f)), the electorate signaled its intent to “throw out rather than ‘save’ the old punishment.” We disagree. In enacting Proposition 47, the electorate drew distinctions between three categories of persons-those who had not yet been sentenced, those who were “currently serving” sentences (Pen. Code, § 1170.18, subd. (a)), and those who had completed their sentences (id., subd. (f))-and it provided resentencing procedures for the two categories of persons who had already been sentenced as felons. The electorate chose to subject such persons to review by the trial court, consistent with its intent to ensure that sentences for persons convicted of dangerous crimes were not changed and to require felony sentences for those persons with violent or serious prior felony convictions. In fact, the electorate specified that it intended to 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, supra, text of Prop. 47, § 3, p. 70.)

Defendant contends his position is supported by the voters’ stated intent to “ensure that prison spending is focused on violent and serious offenses[ and] to maximize alternatives for nonserious, nonviolent crime” and to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.” (Voter Information Guide, supra, text of Prop. 47, §§ 2, 3, p. 70.) However, the voters also explicitly expressed the intent to “[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act, ” to exempt persons who have “prior convictions for specified violent or serious crimes, ” to “[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors, ” 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.” (Id., § 3, p. 70, italics added.) By construing Proposition 47’s reduced penalty provisions as not retroactive, we are furthering the electorate’s intent to ensure that a person previously sentenced as a felon may be resentenced to a misdemeanor only if he or she had no prior disqualifying convictions, and, for a

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person “currently serving a sentence” (Pen. Code, § 1170.18, subd. (a)), that the person’s criminal history does not reflect potential dangerousness to public safety.

Defendant further contends that the electorate’s intent is clearly demonstrated by the enactment of Penal Code section 1170.18, subdivision (m), which provides: “Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.” According to defendant, this language indicates the electorate intended to “expand, not restrict, a defendant’s rights.” The Yearwood court rejected a similar claim as to Penal Code section 1170.126, subdivision (k), enacted as part of Proposition 36, which contains almost identical language.[3] The Yearwood court held that the purpose of Penal Code section 1170.126, subdivision (k) was to “protect[] prisoners from being forced to choose between filing a petition for a recall of sentence and pursuing other legal remedies to which they might be entitled (e.g., petition for habeas corpus), ” and it declined to find that Penal Code section 1170.126, subdivision (k) had “any impact in determining if amended [Penal Code] sections 667 and 1170.12 operate retroactively.” (Yearwood, supra, 213 Cal.App.4th at p. 178.) Similarly, here, Penal Code section 1170.18, subdivision (m) ensures that a person who files a resentencing petition or application is not precluded from pursuing any other legal remedies; it does not overcome the clear requirement that a person “currently serving a sentence” file a petition for recall of sentence under Penal Code section 1170.18, subdivision (a).

Finally, we do not agree with defendant that retroactive application of Proposition 47’s reduced penalty provisions is required based on state and federal principles of equal protection. Contrary to defendant’s claim, defendant is not being denied the benefits of Proposition 47, as he may obtain relief by filing a petition for recall of sentence under Penal Code section 1170.18, subdivision (a). It is unclear whether defendant is arguing that there is no rational basis for Proposition 47’s procedural distinction between persons who have been sentenced and those who have not yet been sentenced-i.e., its requirement that persons who have been sentenced file a petition for recall of sentence. To the extent he is presenting such an argument, we find a rational basis for the distinction. A determination of whether someone qualifies for misdemeanor sentencing will, in some cases, depend on factual issues such as the existence of disqualifying prior convictions. The electorate could reasonably decide that for persons sentenced prior to the passage of Proposition 47, the only way to obtain a sentence reduction should be through a petition for recall of sentence submitted to the trial court, which can then make the necessary factual determinations.

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In sum, we hold that Proposition 47 is not retroactive and we decline to order defendant’s conviction of violating Health and Safety Code former section 11377 reduced to a misdemeanor. (See People v. Noyan (2014) 232 Cal.App.4th 657, 672 [181 Cal.Rptr.3d 601].) Defendant may 21 file a petition for recall of sentence pursuant to Penal Code section 1170.18, subdivision (a) in the trial court or pursue other available legal remedies.

C, D.[*]

IV. DISPOSITION

The probation condition that provides, “You shall not possess or consume illegal drugs or alcohol or knowingly be anywhere that illegal drugs are used or sold or where alcohol is the major item of sale” is modified to provide: “You shall not possess or consume any substance you know to be illegal drugs or alcohol or knowingly be anywhere that illegal drugs are used or sold or where alcohol is the major item of sale.”

The probation condition that provides, “You shall not own or possess or have in your custody or control any firearm or ammunition for the rest of your life” is modified to provide: “You shall not own or possess or have in your custody or control anything you know to be a firearm or ammunition for the rest of your life.”

As modified, the order of probation is affirmed.

Mihara, J., concurred.

GROVER, J., Concurring.[*]


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