from a judgment of the Superior Court of Kern County No.
MF007375A. Barry Hammer, Judge. (Retired Judge of the San
Luis Obispo County Sup. Ct. assigned by the Chief Justice
pursuant to article VI, § 6 of the Cal. Const.)
W. Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Carlos A. Martinez, Caely E. Fallini, and
Catherine Tennant Nieto, Deputy Attorneys General, for
Plaintiff and Respondent.
DETJEN, Acting P.J.
Omar Casillas appeals from a postjudgment order denying his
2015 petition to reduce a 2006 felony conviction to a
misdemeanor conviction pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47 or
the Act). The trial court denied the petition on the grounds
that he had been convicted of a “super strike”
offense in 2013. Defendant contends the order must be
reversed because the 2013 conviction does not constitute a
“prior” conviction within the meaning of
Proposition 47. We disagree and affirm the order.
2006, defendant pled nolo contendere to felony possession of
a controlled substance (Health & Saf. Code, § 11377,
former subd. (a)) and admitted he served a prior prison
term (Pen. Code,  § 667.5, subd. (b)). After being
placed on probation, and then violating that probation,
defendant received a sentence of three years. He purportedly
completed that sentence.
August 27, 2013, defendant was convicted of attempted murder
(§§ 187, subd. (a), 664); false imprisonment
(§ 236); assault with a semiautomatic firearm (§
245, subd. (b)); unlawful possession of a firearm (§
29800, subd. (a)(1)); and unlawful possession of ammunition
(§ 30305, subd. (a)(1)). In connection with the
attempted murder, the jury found true the allegation he
personally and intentionally discharged a firearm. (§
12022.53, subd. (c).) On October 25, 2013, defendant received
an aggregate sentence of 29 years.
47 was approved by the voters on November 4, 2014, and became
effective the next day. (People v. Bradshaw (2016)
246 Cal.App.4th 1251, 1256; People v. Lynall (2015)
233 Cal.App.4th 1102, 1108; see Cal. Const., art. II, §
10, subd. (a).) The Act reduced certain drug- and
theft-related offenses that had previously been designated as
either felonies or wobblers to straight misdemeanors. It
amended, inter alia, Health and Safety Code section 11377.
(People v. Lynall, supra, at pp.
1108-1109.) Now, possession of a controlled substance
“shall be punished by imprisonment in a county jail for
a period of not more than one year” (Health & Saf.
Code, § 11377, subd. (a)) “unless the perpetrator
has one or more prior convictions for so-called super strike
offenses (the offenses listed in § 667, subd.
(e)(2)(C)(iv))” (People v. Bradshaw,
supra, at p. 1256; accord, Health & Saf. Code,
§ 11377, subd. (a)). The Act also added section 1170.18,
which “allow[s] certain convicted felons to petition
the court to have their felony convictions designated as
misdemeanors and their penalties reduced.” (People
v. Walker (2016) 5 Cal.App.5th 872, 875
(Walker).) Section 1170.18 reads in pertinent part:
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 [A]ct
had this [A]ct been in effect at the time of the offense, may
file an application before the trial court that entered the
judgment of conviction in his or her case to have the felony
conviction or convictions designated as misdemeanors.
If the application satisfies the criteria in subdivision (f),
the court shall designate the felony offense or offenses as a
misdemeanor. [¶]... [¶]
The provisions of this section shall not apply to persons who
have one or more prior convictions for an offense specified
in... [s]ection 667[, subd. (e)(2)(C)(iv)]....”
29, 2015, defendant filed a petition to reduce his 2006
felony drug conviction to a misdemeanor conviction pursuant
to section 1170.18, subdivision (f). On June 15, 2015, the
trial court denied his petition on the grounds that he had
been convicted of a super strike offense, i.e., attempted
murder, in 2013. (See ante, fn. 4.)
Standard of review.
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.)
of statutory interpretation are questions of law subject to
de novo review. (Walker, supra, 5
Cal.App.5th at p. 876; People v. Montgomery (2016)
247 Cal.App.4th 1385, 1388 (Montgomery); People
v. Zamarripa (2016) 247 Cal.App.4th 1179, 1183
Section 1170.18, subdivision (i) disqualifies a person who
has suffered a super strike conviction any time before the
trial court rules on his or her reclassification petition.
is no dispute that (1) a jury convicted defendant of
attempted murder, inter alia, in 2013; (2) attempted murder
is a disqualifying super strike offense; and (3) defendant
sought reclassification of his 2006 felony drug conviction in
2015. The question is what “prior” in section
1170.18, subdivision (i)'s “prior conviction”
means: in other words, “ ‘[p]rior to what?'
” (Montgomery, supra, 247 Cal.App.4th
at p. 1387.) Whereas defendant urges us to adopt an
interpretation that only “exclude[s] those defendants
who have any super strike conviction which predates the...
offense for which relief is sought, ” the Attorney
General maintains a “ ‘prior' conviction is
any conviction occurring before the trial court rules on a
petition for re[lief].”
common parlance, “prior” means “[p]receding
in time or order.” (American Heritage Dict. (3d college
ed. 2000) p. 1088; accord, Black's Law. Dict. (9th ed.
2009) p. 1313.) Exactly what is being preceded in
time or order depends on context. For example, it is clear
that the phrase “prior conviction” in Health and
Safety Code section ...