P. v. Salazar

1
Filed 2/21/17 P. v. Salazar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE VALLE SALAZAR,
Defendant and Appellant.
E065540
(Super.Ct.No. INF1201546)
OPINION
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed.
Lewis Wenzell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swanson, Lynne G.
McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.

-- 1 of 12 --

2
I
INTRODUCTION
Defendant Jose Valle Salazar appeals an order denying his petition to strike two
prison prior enhancements (petition) predicated on felonies which were reduced to
misdemeanors under Proposition 47 (Pen. Code, § 1170.181). Defendant contends the
trial court was required to grant his petition and strike his prison prior enhancements
(§ 667.5, subd. (b)) because the enhancements are no longer predicated on felony
convictions. Defendant also argues the trial court violated his equal protection rights
under the state and federal Constitutions by refusing to apply Proposition 47 retroactively
to his prison prior enhancements, which were imposed before Proposition 47 took effect.
We reject defendant’s contentions and affirm the trial court order denying defendant’s
petition.
II
FACTUAL AND PROCEDURAL BACKGROUND
In October, 2012, the People filed an amended felony complaint, charging
defendant with committing two robbery offenses (§ 211, counts 1 and 3) and two
commercial burglaries (§ 459, counts 2 and 4), in May and June, 2012. The complaint
also alleged two prison prior enhancements (§ 667.5, subd. (b)) predicated on felony
convictions for possession of controlled substances in 2004 (Health & Saf. Code,
§ 11377, subd. (a)) and forgery (§ 470, subd. (d)) in 2007.
1 Unless otherwise noted, all statutory references are to the Penal Code.

-- 2 of 12 --

3
In October 2012, defendant pled guilty to count 1 (robbery) and admitted the two
prison prior enhancements. The trial court sentenced defendant to five years in prison,
with execution of the sentence suspended. The court imposed three years’ probation plus
270 days in jail, and dismissed the remaining charges. In 2014, defendant pled guilty to
two drug possession offenses. As a result, the trial court revoked defendant’s probation
and imposed a five-year sentence for his 2012 robbery conviction and two enhancements.
In May 2015, defendant filed a petition for resentencing under Proposition 47,
requesting the court to reduce to misdemeanors the two felony convictions that formed
the basis of defendant’s two prison prior enhancements.
On September 1, 2015, the trial court granted defendant’s petition to reduce to a
misdemeanor his forgery felony conviction (case No. INF058124), which formed the
basis of one of his prison prior enhancements in the instant case. Also on September 1,
2015, the trial court granted defendant’s petition to reduce to a misdemeanor his drug
possession felony conviction (case No. INF036174), which formed the basis of his other
prison prior enhancement in the instant case.
On September 21, 2015, the trial court denied defendant’s petition for
resentencing filed in the instant case in May 2015, on the ground count 1 (robbery) was
not a qualifying felony under Proposition 47.
In December 2015, defendant submitted to the trial court, ex-parte and in propria
persona, a letter stating that his two prison prior felonies were reduced to misdemeanors
under Proposition 47, thereby invalidating his two prison prior enhancements. Defendant
requested that the trial court resentence him, taking this into account. On December 29,

-- 3 of 12 --

4
2015, the trial court denied defendant’s request.
In January 2016, defendant, in propria persona, filed a motion for modification of
his sentence on the grounds (1) he entered his guilty plea under duress (2) the court
miscalculated his credits, and (3) his prison prior enhancements should be stricken
because the underlying felonies were reduced to misdemeanors.
On January 29, 2016, the court held a hearing on defendant’s motion for
modification, and denied the motion. The court noted that the trial court denied striking
defendant’s prison prior enhancements on December 29, 2016, and also recalculated his
credits. Defense counsel agreed there had been no change in circumstances. Thus there
was nothing for the trial court to address in defendant’s motion for modification.
Defendant filed a notice of appeal of the January 29, 2016 order.
III
STRIKING SENTENCE ENHANCEMENTS
Defendant contends the trial court erred in denying his request for resentencing as
to his two prison prior enhancements (§ 667.5, subd. (b)). Defendant argues the trial
court must strike his prison priors because the felony convictions underlying them were
reduced to misdemeanors. We disagree. Proposition 47 does not allow retroactive
striking of sentence enhancements already subject to a final judgment.
Determination of the issue of whether defendant is entitled to have his prison prior
enhancements stricken turns on our interpretation and application of two statutes: section
667.5, subdivision (b), the prison prior enhancement provision, and section 1170.18,
Proposition 47’s sentencing provision.

-- 4 of 12 --

5
The enhancement statute, 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.) The statute is intended “‘“to punish
individuals” who have shown that they are “‘hardened criminal[s] who [are] undeterred
by the fear of prison.’”’ [Citation.]” (People v. Abdallah (2016) 246 Cal.App.4th 736,
742 (Abdallah).)
Imposition of a section 667.5, subdivision (b) enhancement “requires proof that
the defendant ‘“(1) was previously convicted of a felony; (2) was imprisoned as a result
of that conviction; (3) completed that term of imprisonment; and (4) did not remain free
for five years of both prison custody and the commission of a new offense resulting in a
felony conviction.”’ [Citations.]” (Abdallah, supra, 246 Cal.App.4th at p. 742; see
People v. Tenner (1993) 6 Cal.4th 559, 563.)
Defendant argues that a section 667.5, subdivision (b) enhancement cannot be
based on a felony conviction that has been reduced to a misdemeanor under Proposition
47. Defendant contends Proposition 47 implicitly allows the trial court to strike such an
enhancement. Proposition 47, which went into effect on November 5, 2014, reclassified
certain drug and theft-related felony and “wobbler” offenses as misdemeanors. It also
created remedies for persons previously convicted of one of the reclassified offenses.
Proposition 47 provides resentencing for defendants who are 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

-- 5 of 12 --

6
this act been in effect at the time of the offense . . . .” (§ 1170.18, subd. (a).) Such a
defendant “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, that include Health and Safety Code section 11377 (possession of a controlled
substance) and section 473 (forgery), as amended or added by Proposition 47.
(§ 1170.18, subd. (a).)
Proposition 47 also applies to defendants who have already completed a sentence
for one of the enumerated offenses. Those individuals can file an application with the
court that entered the judgment of conviction to have the conviction designated as a
misdemeanor. (§ 1170.18, subd. (f).) After relief is obtained under either subdivision (a)
or subdivision (f) of section 1170.18, the defendant’s conviction “shall be considered a
misdemeanor for all purposes,” with the exception of the firearm restrictions that apply to
convicted felons. (§ 1170.18, subd. (k).)
Although Proposition 47 makes no mention of sentence enhancements, defendant
contends he is entitled to have his two prison prior enhancements stricken because the
predicate convictions must now be treated as “misdemeanor[s] for all purposes.”
(§ 1170.18, subd. (k).) Our state Supreme Court has granted review of several cases
holding that the “misdemeanor for all purposes” designation in subdivision (k) of section
1170.18 does not apply retroactively to invalidate prior sentence enhancements imposed

-- 6 of 12 --

7
under section 667.5, subdivision (b).2 We likewise conclude that subdivision (k) of
section 1170.18 does not apply retroactively to invalidate defendant’s enhancements.
This court previously considered and rejected the same argument in People v. Jones,
supra, 1 Cal.App.5th 221, concluding “the direction of section 1170.18, subdivision (k)
that any redesignated conviction ‘shall be considered a misdemeanor for all purposes,’
applies, at most, prospectively to preclude future or non-final sentence enhancements
based on felony convictions redesignated as misdemeanors under Proposition 47.” (Id. at
p. 230;3 italics added.) Defendant has provided no persuasive reason to depart from our
holding in Jones.
As explained in People v. Rivera (2015) 233 Cal.App.4th 1085, 1100 (Rivera),
“[T]he language in subdivision (k) of section 1170.18 that a conviction that is reduced to
a misdemeanor under that section ‘shall be . . . a misdemeanor for all purposes’ is not
significantly different from the language in section 17(b), which provides that after the
2 Cases pending review, holding section 1170.18 does not provide for retroactive
redesignation, dismissal, or striking of final pre-Proposition 47 sentence enhancements
based on prior convictions that are subsequently reduced from felonies to misdemeanors
pursuant to section 1170.18 include: People v. Valenzuela (2016) 244 Cal.App.4th 692,
706-707, review granted Mar. 30, 2016, S232900; People v. Carrea (2016) 244
Cal.App.4th 966, 971, review granted Apr. 27, 2016, S233011; People v. Ruff (2016) 244
Cal.App.4th 935, 938, review granted May 11, 2016, S233201; People v. Williams (2016)
245 Cal.App.4th 458, 473, review granted May 11, 2016, S233539; People v. Jones
(2016) 1 Cal.App.5th 221, 230, review granted Sept. 14, 2016, S235901. People v. Isaia
(2016) 2016 Cal.App.Unpub. LEXIS 7002, rev. granted Nov. 11, 2016, S237778, reached
a different conclusion.
3 Under a recent amendment to California Rules of Court, rule 8.1115, we may
rely on People v. Jones, supra, 1 Cal.App.5th 221 (rev. granted Sept. 14, 2016) as
persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff.
July 1, 2016.)

-- 7 of 12 --

8
court exercises its discretion to sentence a wobbler as a misdemeanor, and in the other
circumstances specified in section 17(b), ‘it is a misdemeanor for all purposes.’ (Italics
added.) . . . [I]n construing this language from section 17(b), the California Supreme
Court has stated that the reduction of the offense to a misdemeanor does not apply
retroactively. [Citations.] We presume the voters ‘intended the same construction’ for
the language in section 1170.18, subdivision (k), ‘unless a contrary intent clearly
appears.’ [Citation.]”
Nothing in the language of section 1170.18 or the ballot materials reflects an intent
to apply subdivision (k) retroactively. (Rivera, supra, 233 Cal.App.4th at p. 1100.)
Proposition 47’s remedial provisions apply only to cases in which a defendant is
currently serving a sentence for a felony conviction that is now a misdemeanor
(§ 1170.18, subd. (a)) and cases in which a defendant convicted of such a crime has
already completed his or her sentence (§ 1170.18, subd. (f)). Moreover, the statute goes
on to instruct 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).) Defendant’s section 667.5, subdivision (b) prison prior
enhancements are part of such a final judgment.
Citing People v. Park (2013) 56 Cal.4th 782 and People v. Flores (1979) 92
Cal.App.3d 461, defendant argues that Proposition 47 was intended to invalidate section
667.5, subdivision (b) enhancements included in final judgments. Defendant’s reliance
on these cases is misplaced. In both cases, sentencing on the charged offenses occurred
after the prior felony convictions had already been reduced to misdemeanors. (See

-- 8 of 12 --

9
Abdallah, supra, 246 Cal.App.4th at p. 747 [§ 667.5, subd. (b) enhancement did not apply
to defendant sentenced after his prior felony conviction had been designated as a
misdemeanor under Proposition 47].) This is not the case here. At the time of
defendant’s sentencing on the charged offenses, his two enhancements were predicated
on felonies, which were not reduced to misdemeanors until after the judgment became
final.
We also reject defendant’s argument that subdivision (k) of section 1170.18
applies retroactively because it must be broadly and liberally construed to accomplish its
purposes. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 74.) None of
Proposition 47’s stated purposes would be furthered by reducing sentences for felony
convictions that do not qualify for reduction under Proposition 47 and are enhanced to
account for recidivist behavior. Section 667.5, subdivision (b) focuses on the defendant’s
status at the time the defendant commits a felony.
Here, when defendant committed the charged crimes, he had already been
convicted of two other felonies and had recently been released from prison. Because he
reoffended so soon after his release, he was eligible for and deserving of additional
punishment. (People v. Levell (1988) 201 Cal.App.3d 749, 754.) Nothing in the
language of Proposition 47 or the related materials reflects an intent to absolve defendant
of this additional punishment simply by virtue of the fact that his prior convictions must
now be considered misdemeanors. As we held in People v. Jones, supra, 1 Cal.App.5th
at page 230, “section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow offenders
to request and courts to grant retroactive designation of offenses such as [defendant’s]

-- 9 of 12 --

10
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.” We find no reason to depart from our prior holding.
IV
EQUAL PROTECTION
Defendant contends his two prison prior enhancements should be stricken
retroactively under the equal protection clause of the state and federal Constitutions.
Defendant argues there is no rational reason why the same offense reduced under
Proposition 47 would support a section 667.5, subdivision (b) enhancement for a
defendant prospectively, but not retroactively.
The United States and California Constitutions guarantee equal protection of the
laws. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7; see In re Evans (1996) 49
Cal.App.4th 1263, 1270 [the scope and effect of the two equal protection clauses is the
same].) This guarantee assures that the Legislature and voters cannot adopt a
classification that affects two or more similarly situated groups unequally, unless the
classification has a rational relationship to a legitimate state purpose. (People v. Brown
(2012) 54 Cal.4th 314, 328; People v. Singh (2011) 198 Cal.App.4th 364, 369.) This
assumes that as in the instant case, the classification does not involve a suspect class or a
fundamental right. (Singh, at p. 369.)
Defendant argues that refusing to apply Proposition 47 retroactively to
enhancements creates two classes of defendants: (1) those sentenced after enactment of
Proposition 47, who are able to avoid enhancements based on prior felony or wobbler

-- 10 of 12 --

11
convictions (because the redesignations they obtain on those prior convictions apply
prospectively) and (2) those sentenced before enactment of Proposition 47, who are
unable to avoid enhancements based on prior felony or wobbler convictions (because the
redesignations they obtain on those prior convictions do not apply retroactively). These
two classes of defendants are distinguished by whether they were able to seek
redesignation before or after the current sentence was imposed, which is a function of the
date Proposition 47 took effect.
It is well settled that “‘[a] reduction of sentences only prospectively from the date
a new sentencing statute takes effect is not a denial of equal protection.’” (People v.
Floyd (2003) 31 Cal.4th 179, 189.) “‘[A] statute ameliorating punishment for particular
offenses may be made prospective only without offending equal protection, because the
Legislature will be supposed to have acted in order to optimize the deterrent effect of
criminal penalties by deflecting any assumption by offenders that future acts of lenity
will necessarily benefit them.’” (People v. Smith (2015) 234 Cal.App.4th 1460, 1468,
quoting People v. Kennedy (2012) 209 Cal.App.4th 385, 398.)
There is no denial of equal protection here, because a classification defined by the
effective date of an ameliorative statute rationally furthers the state’s legitimate interest in
assuring that penal laws will maintain their desired deterrent effect by applying
punishment as originally prescribed. (In re Kapperman (1974) 11 Cal.3d 542, 545.) As
noted by the United States Supreme Court, “the Fourteenth Amendment does not forbid
statutes and statutory changes to have a beginning and thus to discriminate between the
rights of an earlier and later time.” (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S.

-- 11 of 12 --

12
502, 505.)
Furthermore, applying Proposition 47 only prospectively bears a rational
relationship to the legitimate state interest of transitioning from the prior sentencing
scheme to Proposition 47’s sentencing scheme. Prospective sentencing changes based on
an effective date presumably recognize “legitimate . . . concerns associated with the
transition from one sentencing scheme to another.” (People v. Floyd, supra, 31 Cal.4th at
p. 191.)
Defendant has not established his equal protection rights were violated because
defendants, who were sentenced after the effective date of Proposition 47, received more
favorable treatment than those defendants, such as defendant, who were sentenced before
Proposition 47.
V
DISPOSITION
The order denying defendant’s petition to strike his two prison prior enhancements
is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.

-- 12 of 12 --