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People v. Diaz

California Court of Appeals, Second District, Fourth Division

February 15, 2017

THE PEOPLE, Plaintiff and Appellant,
v.
ROBERT MARK DIAZ, Defendant and Respondent.

         APPEAL from an order granting habeas corpus of the Superior Court of Los Angeles County Super. Ct. No. BA404022, Craig E. Veals, Judge. Reversed.

          Jackie Lacey, District Attorney, Roberta Schwartz and Felicia N. Shu, Deputy District Attorneys, for Plaintiff and Appellant.

          Bahar Law Office and Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Respondent.

          WILLHITE, J.

         The People of the State of California appeal from the order granting the petition for writ of habeas corpus filed by Robert Mark Diaz. We reverse the order, and reinstate Diaz's prison sentence of six years.

         BACKGROUND

         This is the third time this case has come before us. As we explained on the first occasion-Diaz' direct appeal from his judgment of conviction-a Los Angeles Superior Court jury convicted Diaz of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)).[1] He admitted one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and two prior prison terms (§ 667.5, subd. (b)). The superior court sentenced him to a term of six years in prison, including one year for each of his two prior prison terms under section 667.5, subdivision (b). The prior felony conviction underlying one of the section 667.5, subdivision (b) enhancements was a 2009 conviction in San Bernardino Superior Court under former section 666, commonly called petty theft with a prior.

         While Diaz's appeal from the judgment was pending, California voters approved Proposition 47, “The Safe Neighborhoods and Schools Act.” Proposition 47 reduced certain nonserious, nonviolent felonies, including petty theft with a prior, to misdemeanors, and provided a procedure under section 1170.18, subdivision (f) et seq., for persons who have completed a felony sentence for such an offense to apply for reclassification of the conviction as a misdemeanor.

         Diaz contended that his 2009 felony conviction of petty theft with a prior would be a misdemeanor if Proposition 47 had been in effect at the time of that offense, and that therefore it could not be the basis of an enhancement of his sentence under section 667.5, subdivision (b). He urged us to declare the conviction a misdemeanor and strike the section 667.5, subdivision (b) enhancement. We held defendant's contention that Proposition 47 compelled the striking of his section 667.5, subdivision (b) enhancement was premature, because defendant was required first to file an application in the court of conviction under section 1170.18, subdivision (f) to have his 2009 conviction designated as a misdemeanor. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328 (Diaz).) We therefore affirmed the judgment.

         Following his appeal, Diaz filed a petition under section 1170.18, subdivision (f) in the San Bernardino Superior Court to redesignate his 2009 conviction of petty theft with a prior as a misdemeanor. The San Bernardino court granted the petition, designated the crime as a misdemeanor, and resentenced defendant to 180 days in county jail with credit for that time.

         Defendant then filed a petition for writ of habeas corpus in this court requesting that his section 667.5, subdivision (b) enhancement based on the 2009 conviction be stricken. We issued an order to show cause, returnable in the Los Angeles Superior Court, why the section 667.5, subdivision (b) prior should not be stricken based on the redesignation of the 2009 conviction. After briefing and argument, the superior court granted the petition. The court struck the section 667.5, subdivision (b) prior based on the 2009 conviction, resentenced defendant to five years in state prison, and, based on his presentence credits for 2, 276 days, ordered him released from custody. The People appeal from the court's grant of the habeas corpus petition.

         DISCUSSION

         The People contend that the reclassification of defendant's 2009 felony conviction of petty theft with a prior as a misdemeanor, which occurred after his original sentence, does not preclude its use to support his section 667.5, subdivision (b) enhancement. We agree. The redesignation under Proposition 47 of a prior felony conviction to a misdemeanor operates prospectively, from the date of the redesignation forward, and not retroactively, as if the conviction always had been a misdemeanor.

         The Supreme Court has granted review in several cases that have reached the same conclusion. (See, e.g., People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201.) We align ourselves with the reasoning of those decisions, and use it here.[2]

         I. Statutory Interpretation

         “When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

         Although Proposition 47 does not expressly so state, its language clearly implies that it has no retroactive effect. Proposition 47 creates two separate mechanisms for redesignating offenses. The first applies to a defendant “currently serving a sentence for [that] conviction, ” and allows for the “recall” of that felony sentence and for resentencing contingent upon a finding that the redesignation will not pose an “unreasonable risk that the [defendant] will commit a new violent felony within the meaning of” section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subds. (a), (b) & (c).) The second applies to a defendant who has “completed his or her sentence” and allows for re-“designat[ion]” of that offense as a misdemeanor. (Id., subds. (f) & (g).) There is no mechanism for resentencing on a felony not affected by Proposition 47, merely because an offense underlying one of its prior conviction enhancements is so affected. Moreover, Proposition 47 expressly provides that the two mechanisms it creates are exhaustive: “Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act.” (§ 1170.18, subd. (n).)

         Moreover, Proposition 47 borrows language from section 17 that has a well-defined meaning and that does not grant an offense's redesignation as a misdemeanor retroactive effect. Proposition 47 expressly provides that “[a]ny felony conviction that is recalled and resentenced” under either of the two statutory mechanisms “shall be considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).) This language is identical to the language used in section 17 to describe the effect of a judicial declaration that a wobbler offense-which is punishable as a felony until designated a misdemeanor-is to be considered a misdemeanor. (§ 17, subd. (b)(3) [where a crime is a wobbler, “it is a misdemeanor for all purposes... [¶]... [¶] [w]hen... the court declares the offense to be a misdemeanor”.] “[W]hen a wobbler is reduced to a misdemeanor [under section 17], the offense thereafter is deemed a ‘misdemeanor for all purposes, '” (People v. Park (2013) 56 Cal.4th 782, 795, italics added), meaning from that point on. Because “identical language appearing in separate statutory provisions should receive the same interpretation when the statutes cover the same or analogous subject matter” (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6) and because Proposition 47 and section 17 both address the effect to be given the redesignation of a felony as a misdemeanor, we are presumptively obligated to construe the phrase “misdemeanor for all purposes” under Proposition 47 to mean the same as it does under section 17-namely, that a felony offense redesignated as a misdemeanor under Proposition 47 retains its character as a felony prior to its redesignation, and is treated as a misdemeanor only after the time of redesignation.

         The recent decision in People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah), supports this conclusion. In Abdallah, Proposition 47 was enacted and became effective between the date of the defendant's conviction and sentence. Before sentencing, the trial court redesignated the defendant's prior 2011 conviction of possession of methamphetamine as a misdemeanor under Proposition 47. The court then sentenced defendant to a section 667.5, subdivision (b) enhancement based in part on that prior conviction. (Id. at pp. 740-742.) On appeal, the issue presented was “whether, at the time the court sentenced [the defendant] in the present case, [his] original felony conviction in the 2011 case satisfied the fourth requirement of section 667.5, subdivision (b) [that he “did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction” (People v. Tenner (1993) 6 Cal.4th 559, 563, italics added)], or whether, once the court resentenced [him] on his 2011 conviction, he ...


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