P. v. Robinson

Filed 9/27/17 P. v. Robinson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON ROBINSON,
Defendant and Appellant.
B268614
(Los Angeles County
Super. Ct. No. LA071762)
APPEAL from an order of the Superior Court of
Los Angeles County, Joseph A. Brandolino, Judge. Petition
denied.
Brad Kaiserman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Chung L. Mar and
Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________

-- 1 of 14 --

2
INTRODUCTION
In 2012 Jason Robinson pleaded no contest to possession of
ammunition in violation of Penal Code section 30305, subdivision
(a)(1).1 His sentence included a one-year enhancement based on
a 2008 felony conviction for second degree burglary for which
Robinson served a prison term (§ 667.5, subd. (b)).
In 2014 the voters enacted Proposition 47, the Safe
Neighborhoods and School Act of 2014 (§ 1170.18), which, among
other things, reduced some felony property crimes to
misdemeanors. The next year Robinson requested and obtained
relief under Proposition 47 to designate his 2008 felony conviction
for second degree burglary as a misdemeanor. Robinson then
filed a “motion for resentencing” in this case asking the trial
court to strike the one-year sentence enhancement based on the
prior prison term Robinson had served for second degree burglary
because that conviction no longer qualified as a felony, a
prerequisite for imposing the sentence enhancement under
section 667.5, subdivision (b).
The trial court denied the motion. The court concluded
Proposition 47 does not apply retroactively to invalidate a
sentence enhancement that became final prior to the enactment
of Proposition 47. We treat Robinson’s appeal as a petition for
writ of habeas corpus and deny relief.
1 Undesignated statutory references are to the Penal Code.

-- 2 of 14 --

3
FACTUAL AND PROCEDURAL BACKGROUND
In October 2012 the People charged Robinson with
possession of ammunition in violation of section 30305,
subdivision (a)(1), and alleged, among other things, he suffered
convictions for burglary (§ 459) in 2002 and 2008 and for
possession for sale of a controlled substance (Health & Saf. Code,
§ 11378) in 2011, for which he served separate prison terms.
Robinson pleaded no contest and admitted the prior prison term
allegations. In November 2012 the trial court sentenced
Robinson to three years for possession of ammunition, plus three
one-year terms for each of the prior prison term enhancements
under section 667.5, subdivision (b).2
Proposition 47 became effective November 5, 2014. (People
v. Abdallah (2016) 246 Cal.App.4th 736, 740.) On August 5, 2015
the trial court designated Robinson’s 2008 conviction for second
degree burglary as a misdemeanor pursuant to Proposition 47.3
In October 2015 Robinson filed a “motion for resentencing” under
Proposition 47 and section 667.5, subdivision (b), asking the court
2 Section 667.5, subdivision (b), “‘provides a special sentence
enhancement for [a] particular subset of “prior felony convictions”
that were deemed serious enough by earlier sentencing courts to
warrant actual imprisonment.’” (People v. Jones (1993) 5 Cal.4th
1142, 1148; see People v. McFearson (2008) 168 Cal.App.4th 388,
394.)
3 We grant Robinson’s motion to augment the record in
accordance with rule 8.155(a) of the California Rules of Court to
include the minute order designating Robinson’s 2008 felony
conviction as a misdemeanor pursuant to section 1170.18,
subdivision (g).

-- 3 of 14 --

4
in this case to resentence him on his 2012 conviction for
possession of ammunition. Robinson contended he “had admitted
a prison prior and suffered a sentencing enhancement in a matter
that no longer qualifies under [section 667.5, subdivision (b)].” In
particular, Robinson argued that, because his 2008 conviction “is
now deemed a misdemeanor,” the prison term he served for that
conviction is not a valid basis for the one-year enhancement
under section 667.5, subdivision (b).
The trial court denied Robinson’s motion for resentencing,
ruling that Proposition 47 does not apply retroactively to
invalidate a sentence enhancement that became final prior to the
enactment of Proposition 47. Robinson appealed from the order
denying his motion.
DISCUSSION
A. Appealability
As a threshold matter, the People argue section 1170.18
does not authorize a motion for resentencing seeking to strike a
section 667.5, subdivision (b), sentence enhancement based on a
felony conviction that was reduced to a misdemeanor under
Proposition 47. Thus, the People contend the trial court lacked
jurisdiction to consider Robinson’s resentencing motion, and the
order denying the motion is not appealable. Robinson did not file
a reply brief responding to this argument. We agree the denial of
a nonstatutory postjudgment motion is not appealable. (See
People v. Totari (2002) 28 Cal.4th 876, 886.) Nevertheless we will
treat Robinson’s purported appeal as an original petition for writ
of habeas corpus and consider the merits of his challenge to the
sentence enhancement. (See People v. Villa (2009) 45 Cal.4th

-- 4 of 14 --

5
1063, 1069 [an individual in custody may challenge the legality of
that detention on habeas].)
B. Proposition 47
Proposition 47 “makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by
certain ineligible defendants. These offenses had previously been
designated as either felonies or wobblers (crimes that can be
punished as either felonies or misdemeanors).” (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 also created
section 1170.18, which established a mechanism for resentencing
and redesignating felony convictions for offenses that are now
classified as misdemeanors.
Under section 1170.18, subdivision (a), a person “currently
serving” a felony sentence for an offense that is now a
misdemeanor under Proposition 47 may petition for a recall of
that sentence and request resentencing in accordance with the
statutes that Proposition 47 added or amended. A person who
satisfies the criteria in section 1170.18, subdivision (a), 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.” (§ 1170.18, subd. (b).)
Subdivisions (f) and (g) of section 1170.18 provide that
persons who have completed felony sentences for offenses that
are now misdemeanors under Proposition 47 may file an
application with the trial court to have their felony convictions
designated as misdemeanors. Subdivision (k) states, “A felony
conviction that is recalled and resentenced under subdivision (b)
or designated as a misdemeanor under subdivision (g) shall be

-- 5 of 14 --

6
considered a misdemeanor for all purposes,” except with regard
to certain firearm restrictions. Proposition 47 further provides
that “[n]othing 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).)
C. Proposition 47 Does Not Apply Retroactively To
Invalidate a Sentence Enhancement Based on a Prior
Felony Conviction Subsequently Designated as a
Misdemeanor
The Supreme Court has granted review in several cases
that held an order designating a prior felony conviction a
misdemeanor under Proposition 47 does not provide the basis for
striking or dismissing a sentence enhancement based on that
conviction.4 We agree with the reasoning of these decisions, one
of which, for now, remains persuasive authority. (See People v.
Jones (2016) 1 Cal.App.5th 221, 229, review granted Sept. 14,
2016, S235901; Cal. Rules of Court, rule 8.1115(e)(1).)
As in any case involving statutory interpretation, our
fundamental task is to determine the Legislature’s intent so as to
effectuate the law’s purpose. (Abdallah, supra, 246 Cal.App.4th
at p. 745; accord, People v. Cole (2006) 38 Cal.4th 964, 974-975.)
“‘We examine the statutory language, and give it a plain and
commonsense meaning. . . . If the statutory language is
4 See People v. Valenzuela, review granted March 30, 2016,
S232900 (lead case); People v. Carrea, review granted April 27,
2016, S233011; People v. Williams, review granted May 11, 2016,
S233559; People v. Ruff, review granted May 11, 2016, S233201;
People v. Jones (2016) 1 Cal.App.5th 221, 229, review granted
Sept. 14, 2016, S235901.

-- 6 of 14 --

7
unambiguous, then the plain meaning controls. [Citation.] It is
only when the language supports more than one reasonable
construction that we may look to extrinsic aids like legislative
history and ostensible objectives.’” (Abdallah, at p. 745; see Cole,
at p. 975.) “‘In the case of a provision adopted by the voters,
“their intent governs.”’” (Abdallah, at p. 745; People v. Rivera,
supra, 233 Cal.App.4th at pp. 1099-1100.) We review a trial
court’s interpretation of Proposition 47 de novo. (People v.
Lowery (2017) 8 Cal.App.5th 533, 538, review granted Apr. 19,
2017, S240615; People v. Sherow (2015) 239 Cal.App.4th 875,
878.)
1. Proposition 47 Does Not Create a Mechanism
For Invalidating a Sentence Enhancement
Robinson argues voters intended Proposition 47 “to prohibit
imposing a collateral sanction on an individual in the form of a
sentence enhancement for criminal conduct that is no longer a
felony.” In People v. Abdallah, supra, 246 Cal.App.4th 736 we
agreed with this proposition in cases where the court resentenced
or redesignated the prior felony conviction as a misdemeanor
before the court imposed a sentence on a subsequent crime. (Id.
at p. 746; accord, People v. Evans (2016) 6 Cal.App.5th 894, 901,
review granted Feb. 22, 2017, S239635.) In Abdallah, after the
trial court redesignated the defendant’s felony conviction a
misdemeanor under Proposition 47, the defendant no longer
qualified for a sentence enhancement under section 667.5,
subdivision (b), in a subsequent conviction because the defendant
had no longer been previously convicted of a “felony.” (See
Abdallah, at p. 742.)

-- 7 of 14 --

8
Where, as here, however, the court imposed a sentence
enhancement based on a previous felony conviction that was
redesignated a misdemeanor under Proposition 47 after the
judgment and sentence in the subsequent conviction had become
final, Proposition 47 provides no mechanism for invalidating the
sentence enhancement. Section 1170.18 allows defendants to
obtain relief only for (1) a felony conviction for which a defendant
is currently serving a sentence that would now be a misdemeanor
(§ 1170.18, subd. (a)), and (2) a felony conviction for which a
defendant has completed a sentence that would now be a
misdemeanor (§ 1170.18, subd. (f)).
Robinson is not “currently serving” a sentence for a crime
that Proposition 47 now classifies as a misdemeanor under
section 1170.18, subdivision (a), and, while he has completed a
sentence for a crime that is now classified as a misdemeanor
under section 1170.18, subdivision (f), Robinson already obtained
the relief Proposition 47 provides for that conviction. Thus,
Proposition 47 does not provide for the recall and resentencing of
the sentence Robinson challenges. (See Jones, supra, 1
Cal.App.5th at p. 230, rev. granted [the provisions of Proposition
47 “explicitly allow offenders to request and courts to grant
retroactive designation of offenses such as [the defendant’s]
prison prior, but no provision allows offenders to request or
courts to order retroactively striking or otherwise altering an
enhancement based on such a redesignated prior offense”].)

-- 8 of 14 --

9
2. Proposition 47 Does Not Apply Retroactively To
Invalidate Sentence Enhancements
Robinson contends Proposition 47’s lack of an express
mechanism to invalidate sentence enhancements based on felony
convictions subsequently reduced to misdemeanors does not
preclude defendants from such relief. In support of this
argument, Robinson cites section 1170.18, subdivision (k), which
provides that any felony conviction a court resentences or
redesignates as a misdemeanor “shall be considered a
misdemeanor for all purposes,” except for certain firearm
prohibitions. Thus, Robinson argues, once the trial court deemed
his prior felony conviction a misdemeanor, that classification
applies to “collateral” consequences both retroactively and
prospectively.
Provisions of the Penal Code, however, are not retroactive
“unless expressly so declared.” (§ 3.) “‘[I]n 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 . . . must have intended a retroactive application.’”
(People v. Brown (2012) 54 Cal.4th 314, 319-320; see Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) The same
principle applies to a statute enacted through a ballot initiative.
(Evangelatos, at p. 1209.) “In applying this principle, we have
been cautious not to infer retroactive intent from vague phrases
and broad, general language in statutes. [Citations.]
Consequently, ‘“a statute that is ambiguous with respect to
retroactive application is construed . . . to be unambiguously
prospective.”’” (Brown, at pp. 319-320.)
Neither section 1170.18, subdivision (k), nor any other
provision of Proposition 47 contains language allowing for the

-- 9 of 14 --

10
retroactive dismissal, striking, or modification of a sentence
enhancement. (See Jones, supra, 1 Cal.App.5th at p. 230
[“[a]bsent express language in section 1170.18 allowing the
redesignation, dismissal, or striking of past sentence
enhancements, we cannot infer voters intended [Proposition 47]
to apply retroactively to past sentence enhancements”]; see also
People v. Feyrer (2010) 48 Cal.4th 426, 439 [interpreting the “for
all purposes” language of section 17 to apply prospectively only],
superseded by statute on another ground as stated in People v.
Park (2013) 56 Cal.4th 782, 789-791.) Therefore, section 1170.18
does not apply retroactively to sentence enhancements.
Robinson argues Proposition 47 applies retroactively
because section 1170.18, subdivision (k), created only one
exception (for firearm restrictions) to the “for all purposes”
language, which implies there are no other exceptions (such as
for previously imposed sentence enhancements). Robinson cites
Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209,
where the court held the “for all purposes” language of section
1170.18, subdivision (k), requires trial courts to expunge a
defendant’s DNA evidence from databases consisting of DNA
samples from felons after a defendant’s conviction is redesignated
as a misdemeanor under Proposition 47. (Alejandro N., at
p. 1228.) The Alejandro N. court reasoned: “Because [section
1170.18] explicitly addresses what, if any, exceptions should be
afforded to the otherwise all-encompassing misdemeanor
treatment of the offense, and because only the firearm restriction
was included as an exception, the enactors effectively directed the
courts not to carve out other exceptions to the misdemeanor
treatment of the reclassified offense absent some reasoned
statutory or constitutional basis for doing so.” (Alejandro N., at

-- 10 of 14 --

11
p. 1227.) Robinson argues Alejandro N. supports his position
that Proposition 47 applies to “collateral consequences” of a
felony conviction.
Alejandro N., however, addressed “collateral consequences”
in the same case the defendant received relief under Proposition
47. Here, Robinson seeks to apply the benefits of Proposition 47
in a different case, one in which he is not eligible for resentencing
under Proposition 47. Moreover, section 1170.18, subdivision (n),
states that nothing in Proposition 47 “is intended to diminish or
abrogate the finality of judgment in any case not falling within
the purview” of Proposition 47. (§ 1170.18, subd. (n), italics
added.) Because this case does not fall within the purview of
Proposition 47, section 1170.18, subdivision (k), does not affect
the finality of the judgment against Robinson. Thus, even under
Alejandro N., this case presents a “reasoned statutory . . . basis”
for carving out “misdemeanor treatment of the reclassified
offense.” (See Alejandro N., supra, 238 Cal.App.4th at p. 1227.)5
5 Moreover, Alejandro N. interpreted section 1170.18,
subdivision (k), in light of section 299, subdivision (f), which
generally precludes a judge from relieving a defendant of the
duty to provide specimens, samples, or fingerprints if the
defendant is convicted of a “qualifying offense.” (Alejandro N.,
supra, 238 Cal.App.4th at pp. 1227-1230; see § 299, subd. (f).)
The Legislature subsequently overruled this aspect of the
Alejandro N. decision by amending section 299, subdivision (f), to
require defendants whose felony convictions are redesignated as
misdemeanors under Proposition 47 to provide the required
specimens, samples, or fingerprints, even though a misdemeanor
conviction does not trigger that administrative duty. (See § 299,
subd. (f).)

-- 11 of 14 --

12
Robinson also points to 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.” This provision, however, provides no
support for Robinson’s position. As discussed, invalidating a
properly imposed sentence enhancement is not a right or remedy
“otherwise available” under Proposition 47 or any other law cited
by Robinson.
Because the language of Proposition 47 is unambiguous, we
“‘presume that the Legislature meant what it said, and the plain
meaning of the statute controls.’” (People v. Blackburn (2015) 61
Cal.4th 1113, 1123.) Therefore, we do not consider Robinson’s
argument that the ballot pamphlet accompanying Proposition 47
coupled with the rule of liberal construction “infer” an intent to
apply Proposition 47 retroactively to sentence enhancements.
(See People v. Rizo (2000) 22 Cal.4th 681, 685 [only when a
statute’s language is ambiguous do “‘we refer to other indicia of
the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet’”]; Moore v. Superior
Court (2004) 117 Cal.App.4th 401, 406, fn. 6 [when “the language
of the statute itself is clear and unambiguous, [courts] need not
concern [them]selves with the . . . ballot pamphlet”]; see also
People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, 715,
review granted Sept. 13, 2017, S243072 [courts cannot imply a
legislative intent in favor of retrospective operation of a voter
proposition from the mere fact that the measure is remedial and
subject to the rule of liberal construction].)

-- 12 of 14 --

13
D. Imposing the Section 667.5, subdivision (b),
Enhancement on Robinson Does Not Violate
Equal Protection
Robinson also argues that “continuing to subject those who
have had their felonies reduced to misdemeanors to the section
667.5, subdivision (b), enhancement, when, going forwards, those
same individuals would not be subject to the enhancement”
violates his federal and state constitutional rights to equal
protection. Jones persuasively rejected a similar argument. (See
Jones, supra, 1 Cal.App.5th at p. 232, rev. granted.)
“‘A refusal to apply a statute retroactively does not violate the
Fourteenth Amendment.’ [Citation.] Equal protection principles
do ‘not forbid statutes and statutory changes to have a beginning,
and thus to discriminate between the rights of an earlier and
later time.’” (Jones, supra, 1 Cal.App.5th at p. 232, quoting
Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505; see
also People v. Floyd (2003) 31 Cal.4th 179, 191 [“‘a reduction of
sentences only prospectively from the date a new sentencing
statute takes effect is not a denial of equal protection’”].)
“Furthermore, because prospective sentencing changes
presumably recognize ‘legitimate . . . concerns associated with the
transition from one sentencing scheme to another,’ applying
[Proposition 47] prospectively but not retrospectively bears a
rational relationship to the legitimate state interest of
transitioning from the old sentencing scheme to the new
sentencing scheme.” (Jones, at p. 232; accord, Floyd, at p. 191.)
Therefore, Robinson has not shown the trial court’s refusal to
strike his sentence enhancement violated his right to equal
protection of the laws.

-- 13 of 14 --

14
DISPOSITION
The petition for writ of habeas corpus is denied.
SEGAL, J.
We concur:
PERLUSS, P. J.
MENETREZ, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

-- 14 of 14 --