P. v. Guillen

Filed 2/27/17 P. v. Guillen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ALBERTO GUILLEN,
Defendant and Appellant.
G052022
(Super. Ct. No. 14WF1099)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Karen L.
Robinson, Judge. Affirmed.
Kenneth H. Nordin, 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, A. Natasha Cortina and
Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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A jury convicted defendant Luis Alberto Guillen of evading a police
vehicle while driving recklessly (Veh. Code, § 2800.2 — count 1), evading a police
officer while driving against traffic (Veh. Code, § 2800.4 — count 2), and unlawfully
taking and driving a vehicle (Veh. Code, § 10851, subd. (a) — count 3). Defendant
admitted having suffered one prior conviction under the three strikes law (Pen. Code,
§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1))1
and having served three prior
prison terms (§ 667.5, subd. (b)). The court sentenced him to eight years in prison,
consisting of six years on count 1 (upper term doubled for his prior strike conviction)
plus one consecutive year each for two of the prior prison term enhancements.2
On
appeal defendant contends the court (1) violated his constitutional rights by denying his
motion for a continuance, and (2) erred by failing to instruct the jury that count 3 could
be a misdemeanor pursuant to Proposition 47. We affirm the judgment.
FACTS
On the afternoon of March 7, 2014, Officer Joseph Zane was in uniform in
a marked police vehicle, when he spotted a vehicle driven by defendant, and discovered
through a license plate check that the vehicle was stolen. Zane tried to stop the vehicle
by activating his overhead emergency lights, but the vehicle rapidly accelerated. Zane
then activated his siren and pursued defendant.
1
All statutory references are to the Penal Code unless otherwise stated.
2
The court also sentenced defendant to a concurrent term of 32 months on
count 3 (low term doubled for his prior strike conviction). In addition, the court stayed
punishment on count 2 under section 654 and struck for purposes of sentencing one of the
prior prison term enhancements.

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During this initial part of the pursuit, defendant committed several Vehicle
Code violations, including weaving through traffic, making a turn from the wrong lane,
driving through a residential area at an unsafe speed, and failing to stop at a stop sign.
Officer Gloria Scott, also in uniform and driving a marked police vehicle,
joined the pursuit after hearing Zane’s radio dispatch that he was following a stolen
vehicle. She too activated her emergency lights and siren during the pursuit. As the
officers pursued defendant, he violated the Vehicle Code by driving through a red light
without stopping. He also drove into oncoming traffic.
At a dead end, defendant slammed on his brakes, and the vehicle skidded,
went over a curb, and crashed into a guardrail. Defendant and another man, who had
been a passenger in the vehicle, fled the scene.
Scott pursued defendant, while Zane chased the passenger. Zane
apprehended the passenger. After a search by other officers and two police dogs, officers
apprehended defendant as well. Defendant was transported to a hospital for injuries
sustained as a result of his contact with the police dog.
The owner of the vehicle (who had noticed it was missing from outside his
Santa Ana home on the morning of February 23, 2014, i.e., almost two weeks earlier)
confirmed he had not permitted defendant or the passenger to take the vehicle.
At trial, Zane and Scott positively identified defendant as the driver of the
stolen vehicle. One of the officers who apprehended defendant positively identified him
as well.

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DISCUSSION
The court properly exercised its discretion to deny defendant’s continuance motion.
Defendant contends the court’s denial of his January 2015 continuance
motion violated his constitutional rights to counsel and due process of law. He claims the
ruling deprived his chosen counsel of sufficient time to prepare for trial.
Before defendant made his January 2015 continuance motion, the court had
already granted him two prior continuances, resulting in a trial date of Thursday, January
22, 2015.3
At the trial call on January 22, defendant’s appointed counsel — Deputy
Public Defender, Madeline L. Berkley — answered “ready” for trial.
Attorney David Nisson then orally requested to become defendant’s
attorney of record. Nisson informed the court that he had filed a continuance motion.4
The prosecutor opposed Nisson’s continuance motion. She requested the
court, however, to trail the case “until Tuesday or Wednesday of [the] next week”
pursuant to her agreement with Berkley.
The court asked Nisson if he would be ready for trial “on Tuesday or
Wednesday.” Nisson replied that he had “just been given some discovery,” and needed
to review the discovery to determine whether it was all the discovery, in order to know
whether he would be ready for trial on Tuesday or Wednesday. Berkley stated she had
given Nisson “all the discovery” at defendant’s request.
3
All dates refer to the year 2015, unless otherwise stated.
4
Nisson’s written motion, filed that same day (January 22), requested an
approximately 45-day continuance. The motion stated that defendant had been trying to
retain Nisson as counsel “for the last several months,” and had finally saved up the funds
to do so only the day before. Consequently Nisson needed time to prepare for trial.

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The court trailed the matter to Wednesday of the following week. The
court stated it would rule on Nisson’s substitution motion at that time and, if it allowed
the substitution, it would analyze whether Nisson was ready to proceed or whether the
orderly administration of justice had been disrupted.
On Wednesday, January 28, Nisson moved to substitute in as defendant’s
attorney of record. The court asked Nisson whether he was ready or whether he would
instead move for a continuance. Nisson stated his preference would be “to continue and
have more time,” but, if the only way he could represent defendant was to answer ready,
he could “do that” since he had been “given the discovery.”
After a recess, the prosecutor and defense counsel Berkley answered
“ready” for trial. The court confirmed with the prosecutor that “the nature of this case is
[Vehicle Code section] 2800.2” (evading a police vehicle while driving recklessly). The
court stated that the matter had been filed almost a year earlier and had been in general
jurisdiction since May 2014, and that the trial had been scheduled for October 2014. The
court found that, with “both sides answering ready with present counsel,” “it would
disrupt the orderly administration of justice” if a continuance were granted. The
prosecutor confirmed that witnesses had been subpoenaed. The court stated that although
defendant had a “right to have counsel of his choice,” he had appointed counsel and now
both parties were ready to go to trial. The court concluded that, unless it found a
compelling reason to rebut its “presumption,” based on the record, that the matter was
ready to be tried, it would not grant a continuance based solely on new counsel entering
the case, because such a continuance would disrupt the orderly administration of justice.
The court asked Nisson whether, if he took the case, he was ready to
proceed. Nisson replied, “I can answer ready, Your Honor. I would just point out I was
given all the discovery last week by Miss Berkley. I do note that what is still missing
are . . . five or six D.N.A. samples submitted to the lab which I don’t see any results from.
I did get an email from [the prosecutor] last week which indicates there are some medical

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records from the hospital where my client was taken which I don’t have, but I will answer
ready.” The court stated it would not allow a continuance unless it found good cause
other than Nisson’s need for more preparation time because he was new to the case.
Nissan stated, “I’ll answer ready, Your Honor.”
The court allowed Nisson to become defendant’s attorney of record, and
relieved Berkley. The court placed the parties “on a one-hour on-call status,” because no
courtroom was available. The case proceeded to trial the morning of the next day.
Under the Sixth Amendment, a criminal defendant who does not require
appointed counsel has the right “to choose who will represent him.” (U.S. v. Gonzalez-
Lopez (2006) 548 U.S. 140, 144 (Gonzalez-Lopez).) Indeed, “‘chosen representation is
the preferred representation. Defendant’s confidence in his lawyer is vital to his defense.
His right to decide for himself who best can conduct the case must be respected wherever
feasible.’” (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) “In addition, counsel,
‘once retained, [must be] given a reasonable time in which to prepare the defense.’” (Id.
at p. 790.) “[E]rroneous deprivation of the right to counsel of choice” is a structural error
not subject to harmless error analysis. (Gonzalez-Lopez, at p. 150.)
But the defendant’s right to retain counsel of his choice is not absolute.
(Gonzalez-Lopez, supra, 548 U.S. at p. 151.) “[E]ven in cases involving the defendant’s
constitutional right to retain an attorney of his choosing, that right can be forced to yield
if the court determines the appointment at issue will result ‘in a disruption of the orderly
processes of justice unreasonable under the circumstances of the particular case.’”
(People v. Alexander (2010) 49 Cal.4th 846, 871-872.) A trial court has “wide latitude in
balancing the right to counsel of choice against the needs of fairness [citation], and
against the demands of its calendar [citation].” (Gonzalez-Lopez, at p. 152.) A trial court
may sometimes “make scheduling and other decisions that effectively exclude a
defendant’s first choice of counsel.” (Ibid.) “The right to such counsel ‘must be
carefully weighed against other values of substantial importance, such as that seeking to

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ensure orderly and expeditious judicial administration, with a view toward an
accommodation reasonable under the facts of the particular case.’” (Courts, supra, 37
Cal.3d at p. 790.)
Similarly, the right to a continuance to facilitate choice of counsel is not
absolute. (Courts, supra, 37 Cal.3d at p. 790.) Section 1050, subdivision (a) requires
criminal cases be heard and determined “at the earliest possible time.” To further this
goal, a trial court can grant a continuance only upon a showing of “good cause.” (Id.,
subd. (e); see also Cal. Rules of Court, rule 4.113 [requiring moving party to present
“affirmative proof in open court that the ends of justice require [the] continuance”].) “A
continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel,
or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’” (Courts, at pp.
790-791.) “Where a continuance is requested on the day of trial, the lateness of the
request may be a significant factor justifying denial absent compelling circumstances to
the contrary.” (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Applying these
principles, courts will deny last-minute continuances to change counsel where the
defendant had a prior opportunity to find and prepare new counsel. (People v. Reaves
(1974) 42 Cal.App.3d 852, 856; see People v. Brady (1969) 275 Cal.App.2d 984, 993-
994 (Brady).)
We review for an abuse of discretion a court’s denial of a defendant’s
motion for a continuance to enable his retained counsel to prepare for trial. (Courts,
supra, 37 Cal.3d at pp. 790-791.) “[D]iscretion is abused only when the court exceeds
the bounds of reason, all circumstances being considered.” (People v. Beames (2007) 40
Cal.4th 907, 920.) “Although ‘a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with counsel an empty
formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.’ [Citation.] Instead, ‘[t]he answer
must be found in the circumstances present in every case, particularly in the reasons

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presented to the trial judge at the time the request is denied.’” (Id. at p. 921.) The
defendant bears the burden to show an abuse of discretion. (Brady, supra, 275
Cal.App.2d at p. 992.) An “order denying a continuance is seldom successfully
attacked.” (Beames, at p. 920.)
We apply these principles here and conclude there was no abuse of
discretion. Defendant was represented by the public defender for 10 months before he
retained private counsel. On the day of trial, he sought to replace Berkley, who answered
“ready” for trial, with a new lawyer. The court had continued trial at least twice at
defendant’s request. (People v. Blake (1980) 105 Cal.App.3d 619, 624 [additional
continuance denied where defendant previously “was granted several continuances”].)
Defendant’s retained counsel, Nisson, answered “ready” for trial the day before the trial
actually commenced. Finally, in denying defendant’s continuance motion, the court
considered the burden that an additional continuance would have placed on the
prosecutor (who was ready for trial and had already subpoenaed witnesses) and on court
administration. In sum, the court did not abuse its discretion by denying defendant’s
motion for a continuance for retained counsel to prepare for trial.
This case is distinguishable from Courts, where our Supreme Court held the
trial court abused its discretion when it refused to grant a continuance to defendant
Courts, charged with murder and use of a firearm, to facilitate his representation by an
attorney he retained about one week before trial. (Courts, supra, 37 Cal.3d at pp. 787,
796.) Courts had contacted attorney Swartz and met with him several times to discuss fee
arrangements. (Id. at p. 787.) At a trial setting conference, Courts’ appointed deputy
public defender “informed the court that [Courts] wanted a continuance in order to hire
private counsel.” (Ibid.) Courts explained that Swartz was to return that day from
vacation and that he and Swartz needed to conclude financial arrangements. (Id. at
pp. 787-788.) The judge “denied the request, explaining that it was ‘too late for coming
into court . . . to be asking for another attorney’; [Courts] could not ‘wait to the last

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minute and say [he wanted] a continuance.’ Later that day, [Courts] met with Swartz to
discuss fee arrangements. Swartz indicated his willingness to represent [Courts] if ‘some
sort of continuance’ were granted.” (Id. at p. 788.) Eight days later, on the day set for
trial, before another judge, Courts’ appointed deputy public defender renewed the
continuance motion. (Ibid.) Courts declared, “‘[T]his is the first case of this magnitude
that [the deputy public defender] has tried, and . . . he does not have the experience to
properly represent me in this matter.’” (Id. at p. 789.) Swartz testified he believed, “in
view of the seriousness of the charges, a continuance was necessary to protect [Courts’]
right to a fair trial.” (Id. at p. 788.) The judge denied the continuance motion. (Id. at p.
789.) In concluding the trial court had erred (id. at p. 796), our Supreme Court stressed
that Courts had been “diligent in his efforts (1) to secure counsel of his own choosing
before the date of trial, and (2) to apprise the court of his wishes at the earliest possible
time” (id. at pp. 795-796). Indeed, Courts had “conscientiously informed the court of his
efforts” (id. at p. 791) “more than a week before trial” (id. at p. 792). Swartz was on
vacation when Courts made his continuance motion at the trial setting conference (id. at
p. 792), which was only his second request for a continuance in the case (ibid.). No
“considerations of judicial efficiency” existed, as the courts did not appear to be
“particularly congested during this period.” (Id. at p. 794.)
Here, in contrast, defendant first informed the court of his desire to retain a
private attorney on the day scheduled for trial (prior to the case being trailed for six
days). Thus, defendant failed to display Courts’ level of conscientiousness. Nor did
defendant demonstrate the same need for replacing his appointed counsel: The charges
against him were less serious than the accusations against Courts. His appointed counsel,
Berkley, answered “ready” for trial (with no questions raised about her ability to handle
defendant’s case), in contrast to Courts, where private counsel believed a continuance
was necessary to protect Courts’ right to a fair trial. Although Nisson did mention he had
not received some D.N.A. lab results and defendant’s hospital record, he said nothing

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about how significant that evidence might be to the defense. (See People v. Beeler
(1995) 9 Cal.4th 953, 1003, abrogated on other grounds as stated in People v. Edwards
(2013) 57 Cal.4th 658, 705 [to obtain continuance based on need for further discovery,
defendant must “show both the materiality of the evidence necessitating the continuance
and that such evidence could be obtained within a reasonable time”].) Thus, defendant
failed to demonstrate his retained counsel reasonably needed additional time to prepare
for trial. Finally, the interests of judicial efficiency weighed more heavily against a
continuance in this case than in Courts: On the trailed trial date, the case had been
pending in general jurisdiction for over eight months; the prosecution had subpoenaed
witnesses and was prepared to proceed; and available courtrooms were scarce. The court
properly weighed defendant’s right to chosen counsel with adequate preparation time
“‘against other values of substantial importance, such as that seeking to ensure orderly
and expeditious judicial administration, with a view toward an accommodation
reasonable under the facts of the particular case.’” (Courts, supra, 37 Cal.3d at p. 790.)
But defendant argues the court erroneously applied a presumption in favor
of the “rapid and orderly administration of justice,” rather than the constitutionally
mandated “‘presumption in favor of [a defendant’s] counsel of choice.’” His assertion
the court applied a formal legal “presumption” is based solely on the following statement
made by the court on January 28, which we recite in context:
The Court: “Everybody is ready to go. We have the People answering
ready. I can only infer that witnesses have been subpoenaed.”
The prosecutor: “Absolutely.”
The Court: “And although the defendant does have his right to have
counsel of his choice, he has had appointed counsel, I can only again infer, for the
duration of this. The parties have worked to get this case ready to go to trial. Present
counsel obviously was appointed. She’s worked to go to trial. The People have worked
to go to trial. And unless I find a compelling reason to rebut the presumption that I have

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now formulated which is with this record, the missile is ready to be launched, that’s my
metaphor, it’s ready to go. To grant a continuance solely because the new counsel is
coming in would disrupt the orderly administration of justice.”
Taken in context, defendant has misinterpreted the court’s words. A fair
reading of this passage shows the court essentially stated that it (the court) had reached a
rebuttable factual conclusion (i.e., that the court had formulated its own “presumption”
based on its own inferences and the record), that the parties were ready for trial.
In sum, the trial court properly exercised its discretion in denying
defendant’s continuance motion.
Proposition 47 does not apply retroactively to defendant’s commission of taking and
driving a vehicle under Vehicle Code section 10851.
Defendant contends that, because his case was not final on Proposition 47’s
effective date, he is entitled to the proposition’s reduced penalty provisions under the
retroactivity rule expressed in In re Estrada (1965) 63 Cal.2d 740 (Estrada). Estrada
“held that new laws that reduce the punishment for a crime are presumptively to be
applied to defendants whose judgments are not yet final.” (People v. Conley (2016) 63
Cal.4th 646, 656 (Conley)). Based on Estrada, defendant asserts that section 490.2,
which was enacted by Proposition 47, applies retroactively to him. (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) Section 490.2
provides that the theft of personal property valued at $950 or less constitutes
misdemeanor petty theft. (Id., subd. (a).)5
From this threshold “retroactivity” contention, defendant formulates his
main (and contingent) argument that his conviction for a felony violation of Vehicle Code
5
The Attorney General does not dispute defendant’s contention he is entitled
to the retroactive application of Proposition 47, and, indeed, fails to mention the Estrada
issue in her respondent’s brief.

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section 10851, must be reversed for instructional error. Essentially, he asserts the court
erred by failing to instruct the jury sua sponte that he had committed a misdemeanor if (1)
he violated solely the taking aspect (as opposed to the driving prong) of Vehicle Code
section 10851, (2) he did so with the requisite intent for theft, and (3) the vehicle’s value
was $950.6
As we shall explain, Proposition 47 does not apply retroactively in this
case. Accordingly, we do not reach, and we express no opinion on, defendant’s argument
that the taking of a vehicle under Vehicle Code section 10851 constitutes theft if the
defendant has the requisite intent, and that section 490.2 encompasses the theft of a
vehicle valued at $950 or less than.7
By default, Penal Code statutes operate prospectively, unless the
Legislature or the electorate has manifested a contrary intent. (People v. Brown (2012)
54 Cal.4th 314, 319 (Brown); Conley, supra, 63 Cal.4th at p. 656 [electorate’s intent].)
“[S]ection 3 provides the default rule: ‘No part of [the Penal Code] is retroactive, unless
expressly so declared.’” (Brown, at p. 319.) Estrada did not weaken or modify this
default rule of prospective operation. (Brown, at p. 324.) Rather, Estrada recognized
that, in determining whether a statute should be applied retroactively, a court must
attempt “to ascertain the legislative intent” by asking, “did the Legislature intend the old
6
Specifically, defendant contends the court erred by failing to instruct the
jury (1) that the taking of a vehicle under Vehicle Code section 10851 is a lesser included
offense of section 487, subdivision (d); (2) that the taking of a vehicle under
section 490.2 is a lesser included offense of Vehicle Code section 10851; and (3) that an
element of a felony taking under Vehicle Code section 10851 is that the taken vehicle’s
value must exceed $950.
7
These issues are currently pending before our Supreme Court. (See, e.g.,
People v. Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016, S230793,
and People v. Ortiz (2016) 243 Cal.App.4th 854, review granted March 16, 2016,
S232344.)

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or new statute to apply?” (Estrada, supra, 63 Cal.2d at p. 744; see People v. Nasalga
(1996) 12 Cal.4th 784, 792 [“legislative intent is the ‘paramount’ consideration”].)
In Estrada, there was no “textual indication of the Legislature’s intent.”
(Conley, supra, 63 Cal.4th at p. 656.) Consequently, Estrada inferred “‘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,’ including ‘to acts committed before its passage[,] provided the judgment
convicting the defendant of the act is not final.’” (Conley, at p. 656.)
“Because the Estrada rule reflects a presumption about legislative intent,
rather than a constitutional command, the Legislature (or here, the electorate) may choose
to modify, limit, or entirely forbid the retroactive application of ameliorative criminal-
law amendments if it so chooses.” (Conley, supra, 63 Cal.4th at p. 656.) Thus, ”when
the statute at issue includes a ‘saving clause’ providing that the amendment should be
applied only prospectively,” the Estrada presumption does not apply. (Conley, at p. 656.)
Nor does the absence of an express saving clause end the “‘“quest for legislative
intent.”’” (Ibid.) To “express an intent to modify or limit the retroactive effect of an
ameliorative change” (ibid.), the Legislature or the electorate must simply “‘demonstrate
its intention with sufficient clarity that a reviewing court can discern and effectuate it’”
(id. at p. 657).
The issue before us is whether Proposition 47 (and specifically § 490.2)
applies retroactively to defendant. In interpreting the electorate’s intent, “we apply the
same principles that govern our construction of a statute.” (People v. Lopez (2005) 34
Cal.4th 1002, 1006.)8
8
The issue of whether Proposition 47 applies retroactively to defendants
whose judgments were not final on November 5, 2014, is currently before our Supreme
Court. In People v. Delapena (2015) 238 Cal.App.4th 1414, review granted October 28,
2015, S229010, the Court of Appeal held that Proposition 47 is not retroactive (id. at p.
364) because it created section 1170.18, which provides for a resentencing petition

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Recently, in Conley, our Supreme Court held that third strike defendants
who were sentenced before the effective date of Proposition 36, the Three Strikes Reform
Act of 2012 (the Reform Act), but whose judgments were not yet final as of that date,
were not entitled to automatic resentencing under the Reform Act, but could petition for
recall of sentence and resentencing under section 1170.126. (Conley, supra, 63 Cal.4th at
p. 652.) Conley distinguished Estrada as follows. “First, unlike the statute at issue in
Estrada, supra, 63 Cal.2d 740, the Reform Act is not silent on the question of
retroactivity. Rather, the [Reform] Act expressly addresses the question in section
1170.126, the sole purpose of which is to extend the benefits of the [Reform] Act
retroactively. Section 1170.126 creates a special mechanism that entitles all persons
‘presently serving’ indeterminate life terms imposed under the prior law to seek
resentencing under the new law. By its terms, the provision draws no distinction between
persons serving final sentences and those serving nonfinal sentences, entitling both
categories of prisoners to petition courts for recall of sentence under the [Reform] Act.”
(Conley, at p. 657.) “Second, the nature of the recall mechanism and the substantive
limitations it contains call into question the central premise underlying the Estrada
presumption: that when an amendment lessens the punishment for a crime, it is
reasonable to infer that the enacting legislative body has categorically determined that
‘imposition of a lesser punishment’ will in all cases ‘sufficiently serve the public
interest.’” (Id., at p. 658.) “The recall procedures in . . . section 1170.126 were designed
to strike a balance between [the] objectives of mitigating punishment and protecting
process and “is functionally equivalent to a saving clause” (id. at p. 362). In People v.
DeHoyos (2015) 238 Cal.App.4th 363, review granted September 30, 2015, S228230, the
appellate court discerned a “legislative intent not to automatically apply Proposition 47 to
persons currently serving sentences for listed offenses” (id. at p. 368), but rather to permit
their resentencing and release only if a court determines under section 1170.18 that they
pose no risk to public safety. (Id. at p. 367.) Consequently, DeHoyos held Proposition
47 did not apply retroactively to the defendant. (Id. at p. 368; see People v. Valenzuela
(2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900.)

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public safety . . . .” (Ibid.) The electorate’s apparent intent in approving section
1170.126 was “to create broad access to resentencing for prisoners previously sentenced
to indeterminate life terms, but subject to judicial evaluation of the impact of
resentencing on public safety, based on the prisoner’s criminal history, record of
incarceration, and other factors.” (Conley, at p. 659.)
This analysis applies equally to Proposition 47, which, by enacting section
1170.18, has addressed the question of retroactivity. Section 1170.18, subdivision (a),
provides, “A person currently serving a sentence for a [felony conviction] who would
have been guilty of a misdemeanor under [Proposition 47] had [the proposition] been in
effect at the time of the offense may petition for a recall of sentence . . . to request
resentencing . . . .” Under section 1170.18, subdivision (b), a petitioner may not be
resentenced to a misdemeanor pursuant to the ameliorative provisions of Proposition 47,
if “the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” Subdivision (f) of section 1170.18 allows
persons who have completed a sentence for a felony conviction “who would have been
guilty of a misdemeanor under this act had this act been in effect at the time of the
offense” to apply for designation of the felony conviction as a misdemeanor. Thus,
section 1170.18 articulates “how the amended law is to apply . . . to cases decided under
the prior law.” (Conley, supra, 63 Cal.4th at p. 662 (conc. opn. of Werdegar, J.).)
Buttressing our conclusion is the following language in People v. Morales
(2016) 63 Cal.4th 399: “Sentencing changes ameliorating punishment need not be given
retroactive effect. ‘“The Legislature properly may specify that such statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written.”’ [Citations.] ‘The voters
have the same prerogative.’ [Citation.] [¶] Here, the voters have given Proposition 47
some retroactive effect. Some persons originally sentenced as felons can receive the
benefit of a favorable resentencing.” (Id. at p. 409, italics added.)

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Defendant committed his Vehicle Code section 10851 offense prior to
Proposition 47’s effective date, although he was tried, convicted, and sentenced after its
effective date. In Conley, in contrast, the defendant had been sentenced before the
effective date of the Reform Act. (Conley, supra, 63 Cal.4th at pp. 654-655.)9
But whether a defendant was sentenced before or after Proposition 47’s
effective date is not a significant difference as to the issue at hand. For purposes of the
Estrada rule, the “key date is the date of final judgment. If the amendatory statute
lessening punishment becomes effective prior to the date the judgment of conviction
becomes final then . . . it, and not the old statute in effect when the prohibited act was
committed, applies.” (Estrada, supra, 63 Cal.2d at p. 744, italics added.)10
Indeed, the
defendant in Estrada committed his offense prior to the ameliorative amendment of the
applicable statutes, but before his conviction and sentence. (Id. at p. 743.) Estrada made
clear that a saving clause may provide “that the old law should continue to operate as to
past acts.” (Id. at p. 747, italics added.) If Proposition 47 were applied retroactively to
defendants who committed an offense before, but were sentenced after, the initiative’s
effective date, the result could be “‘delay and manipulation in criminal proceedings’”
9
In Delapena and DeHoyos (which held Estrada’s retroactivity rule does not
apply to Proposition 47 and are currently under review by the Supreme Court), the
defendants were sentenced before the proposition’s effective date. (Delapena, supra, 238
Cal.App.4th at p. 1421; DeHoyos, supra, 238 Cal.App.4th at p. 366.) The Supreme Court
has indicated that DeHoyos presents the following issue, “Does [Proposition 47] apply
retroactively to a defendant who was sentenced before the [proposition’s] effective date
but whose judgment was not final until after that date?” (Cal. Supreme Ct. News Release
(Aug. 12, 2016) Summary of Cases Accepted and Related Actions During Week of
August 8, 2016.) Delapena specified that section 1170.18 sets forth procedures as to
persons “‘serving a sentence’ at the time the initiative took effect . . . .” (Delapena, at p.
1427.)
10
“[F]or the purpose of determining retroactive application of an amendment
to a criminal statute, a judgment is not final until the time for petitioning for a writ of
certiorari in the United States Supreme Court has passed.” (People v. Nasalga (1996) 12
Cal.4th 784, 789.)

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(Conley, supra, 63 Cal.4th at p. 657), prosecutors prejudiced at the pleading stage, and
non-uniform sentencing. Moreover, section 1170.18, subdivision (a), ties the relevance
of Proposition 47’s effective date to the time of the offense: “A person currently serving a
sentence for a [felony conviction] who would have been guilty of a misdemeanor under
[Proposition 47] had [the proposition] been in effect at the time of the offense may
petition for a recall of sentence . . . .” (People v. Mutter (2016) 1 Cal.App.5th 429, 437
[defendant who committed offense prior to effective date of Proposition 47, but who was
convicted and sentenced thereafter, could properly petition for recall of sentence].)
Accordingly, defendant may file a petition for recall of the sentence under
section 1170.18, but he is not entitled to a reversal of his conviction. The jury was
properly instructed on the law in effect at the time of his offense. Defendant was not
entitled to jury instructions based on the retroactive application of section 490.2.
DISPOSITION
The judgment is affirmed.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.

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