P. v. Harris

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Filed 2/10/17 P. v. Harris CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
RENEE HARRIS,
Defendant and Appellant.
C081653
(Super. Ct. Nos. SC063562A
& STKCRFE19980006425)
Defendant Renee Harris appeals from the trial court’s denial of her Penal Code
section 1170.181 petition for resentencing on her prior prison term. She contends the trial
court was required to strike the prison prior after the felony underlying it was reduced to
a misdemeanor in a prior section 1170.18 proceeding. We shall affirm.
1 Undesignated statutory references are to the Penal Code.

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BACKGROUND
We dispense with the facts of defendant’s crimes as they are unnecessary to
resolve this appeal.
In February 1999, defendant was convicted of three counts of robbery (§ 211) and
several enhancements, including a prior prison term, and was sentenced to a 25-year state
prison term. In December 2015, she successfully petitioned to get the felony underlying
the prison prior reduced to a misdemeanor pursuant to section 1170.18. Defendant then
filed a section 1170.18 petition to strike the prison prior, which the trial court denied
without prejudice.
DISCUSSION
The passage of Proposition 47 in 2014, the Safe Neighborhoods and Schools Act
(Act), created section 1170.18, which provides in pertinent part: “A person 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 this act been in effect at the time of the offense 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 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.” (§ 1170.18, former subd. (a).) “Any
felony conviction that is recalled and resentenced under subdivision (b) or designated as a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes,
except that such resentencing shall not permit that person to own, possess, or have in his
or her custody or control any firearm or prevent his or her conviction under Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18,
subd. (k); hereinafter subdivision (k).) Since the prior prison term enhancement requires
that defendant be convicted of a felony and have served a prison term for that conviction

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(§ 667.5, subd. (b)), this raises the question of whether a prior prison term enhancement
based on what would now qualify as a misdemeanor conviction survives the Act.2
Defendant claims that the trial court erred in not striking the prison prior.
Subdivision (k) was interpreted in the context of felony jurisdiction over criminal
appeals in People v. Rivera (2015) 233 Cal.App.4th 1085 (Rivera). Rivera found that
subdivision (k), which parallels the language from section 17 regarding the reduction of
wobblers to misdemeanors,3 should be interpreted in the same way as being prospective,
from that point on, and not retroactively. (Rivera, at p. 1100; see also People v. Moomey
(2011) 194 Cal.App.4th 850, 857 [rejecting assertion that assisting a second degree
burglary after the fact does not establish the necessary element of the commission of an
underlying felony because the offense is a wobbler: “Even if the perpetrator was
subsequently convicted and given a misdemeanor sentence, the misdemeanant status
would not be given retroactive effect”].) The court in Rivera accordingly concluded that
the felony status of an offense charged as a felony did not change after the Act was
passed, thereby conferring jurisdiction on the Court of Appeal.4 (Rivera, at pp. 1094-
2 This issue is currently before the California Supreme Court. (See, e.g., People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900;
People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011.)
3 Section 17, subdivision (b) states in pertinent part: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances . . . .”
4 Rivera also noted the absence of any evidence that the voters wanted to go beyond
directly reducing future and past punishment for convictions under the six included
offenses. (Rivera, at p. 1100 [“Nothing in the text of Proposition 47 or the ballot
materials for Proposition 47--including the uncodified portions of the measure, the
official title and summary, the analysis by the legislative analyst, or the arguments in
favor or against Proposition 47--contains any indication that Proposition 47 or the

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1095, 1099-1101.) We see no reason to depart from Rivera. Although Rivera addressed
subdivision (k) in a different context, its analysis of subdivision (k) is equally relevant
here.
Relying primarily on People v. Park (2013) 56 Cal.4th 782 (Park), Doble v.
Superior Court (1925) 197 Cal. 556, 576-577 (Doble), and People v. Flores (1979)
92 Cal.App.3d 461 (Flores), defendant asserts that the text of subdivision (k) requires
striking the prison prior.
In Park, the Supreme Court held that a felony conviction properly reduced to a
misdemeanor under section 17, subdivision (b), could not subsequently be used to
support an enhancement under section 667, subdivision (a). (Park, supra, 56 Cal.4th at
p. 798.) Applying the reduction to eliminate an enhancement would be an impermissible
retroactive application under both section 17 and the Act. The distinction between
retroactive and prospective application was recognized by the Supreme Court in Park.
“There is no dispute that, under the rule in [prior California Supreme Court] cases, [the]
defendant would be subject to the section 667[, subdivision] (a) enhancement had he
committed and been convicted of the present crimes before the court reduced the earlier
offense to a misdemeanor.” (Park, at p. 802.) Retroactive versus prospective application
was also invoked by the Supreme Court in distinguishing cases cited by the Attorney
General. “None of the cases relied upon by the Attorney General involves the situation in
which the trial court has affirmatively exercised its discretion under section
17[, subdivision] (b) to reduce a wobbler to a misdemeanor before the defendant
committed and was adjudged guilty of a subsequent serious felony offense.” (Id. at
pp. 799-800.) In the case before us, defendant committed his current felonies before his
prior convictions could be reduced to a misdemeanor; applying that reduction to
language of section 1170.18, subdivision (k) was intended to change preexisting rules
regarding appellate jurisdiction”].)

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eliminate the corresponding prior prison term enhancement would therefore be an
impermissible retroactive application of the Act.
Park is not the only example of the Supreme Court finding that reducing a felony
to a misdemeanor pursuant to section 17 applies going forward. For example, if a
defendant is convicted of a wobbler and is placed on probation without imposition of
sentence, the crime is considered a felony “unless subsequently ‘reduced to a
misdemeanor by the sentencing court’ pursuant to section 17, subdivision (b).
[Citations.]” (People v. Feyrer (2010) 48 Cal.4th 426, 438-439.) “If ultimately a
misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but
not retroactively.” (Id. at p. 439.) It has therefore long been the rule regarding section 17
that “as applied to a crime which is punishable either as felony or as misdemeanor: ‘the
charge stands as a felony for every purpose up to judgment, and if the judgment be
felonious in that event it is a felony after as well as before judgment; but if the judgment
is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter -- the
judgment not to have a retroactive effect . . . .’ ” (People v. Banks (1959) 53 Cal.2d 370,
381-382, quoting Doble, supra, 197 Cal. at pp. 576-577.)
Defendant seeks to distinguish section 17 from subdivision (k). She notes that
under section 17 when a crime is punishable as a misdemeanor or felony it is a
“misdemeanor for all purposes” under various conditions including “[a]fter a judgment
imposing a punishment other than imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170.” (§ 17, subd. (b),
(b)(1).) Relying on Doble, defendant contends that those terms are key to understanding
why section 17 is not given retroactive effect. Since subdivision (k) does not use terms
like “after” or “when” to describe the treatment of offenses designated as misdemeanors,
she concludes that it is thereby distinguished from section 17, rendering the cases
declining to give retroactive effect to section 17 inapposite.

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In Doble, the defendant was charged with various crimes including six offenses
punishable as misdemeanors or felonies. (Doble, supra, 197 Cal. at pp. 557-558.) At
that time, the statute of limitations for all misdemeanors was one year. (Id. at p. 558.)
Since defendant was charged more than a year after the offenses, he contended that
prosecution was barred. (Ibid.) The Supreme Court addressed an argument that the “for
all purposes” language of section 17 would bar prosecution because a misdemeanor
judgment would be given both prospective and retroactive effect. (Doble, at p. 575.) The
Supreme Court rejected this reasoning, as it “ignores the language -- ‘after a judgment
imposing a punishment other than imprisonment in the state prison’ -- following the
phrase ‘shall be deemed a misdemeanor for all purposes.’ ” (Id. at p. 576.) The high
court held that “A fair construction of section 17, in order to give effect to every part
thereof, requires us to hold, and we do so hold, that in prosecutions within the
contemplation of that section, the charge stands as a felony for every purpose up to
judgment, and if the judgment be felonious in that event it is a felony after as well as
before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor
for all purposes thereafter -- the judgment not to have a retroactive effect so far as the
statute of limitations is concerned.” (Id. at pp. 576-577.)
Although the Supreme Court in Doble gave effect to the term “after,” that term is
not necessary to preclude giving retroactive effect to the phrase “for all purposes.” The
term “after” is used only in the provision of section 17 addressing an initial misdemeanor
sentence, section 17, subdivision (b)(1). More analogous to subdivision (k) is section 17,
subdivision (b)(3). Under this provision, a felony conviction will be treated as a
“misdemeanor for all purposes . . . . [¶] . . . [¶] . . . When the court grants probation to a
defendant without imposition of sentence and at the time of granting probation, or on
application of the defendant or probation officer thereafter, the court declares the offense
to be a misdemeanor.” (§ 17, subd. (b), (b)(3).) This provision was at issue in Feyer and
Park, and, as previously stated, was not given retroactive effect in those cases. (See

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Feyer, supra, 48 Cal.4th at p. 439; Park, supra, 56 Cal.4th at pp. 787, 802.)
Subdivision (k) operates in the same manner, treating a felony conviction as a felony
until it is reduced to a misdemeanor under section 1170.18. “Any felony conviction that
is recalled and resentenced under subdivision (b) or designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in his or her custody or
control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).) Under the
language of subdivision (k), a felony subject to Proposition 47 remains a felony until it is
reduced to a misdemeanor pursuant to section 1170.18. As with section 17, subdivision
(b)(3), reducing the felony to a misdemeanor pursuant to section 1170.18 is not given
retroactive effect.
Defendant’s reliance on Flores is similarly misplaced. The defendant in Flores
was sentenced to prison following his conviction of selling heroin (Health & Saf. Code,
§ 11352), and his state prison sentence for that crime was enhanced by one year under
section 667.5, subdivision (b). (Flores, supra, 92 Cal.App.3d at pp. 464, 470.) The
enhancement was based on a prior felony conviction of possession of marijuana under
Health and Safety Code former section 11357. (Flores, at p. 470.) That statute had since
been amended in 1975 to make possession of marijuana a misdemeanor. (Ibid.)
The Flores court noted that in 1976 the Legislature enacted Health and Safety
Code section 11361.5, subdivision (b), which “authorize[d] the superior court, on
petition, to order the destruction of all records of arrests and convictions for possession of
marijuana, held by any court or state or local agency and occurring prior to January 1,
1976.” (Flores, supra, 92 Cal.App.3d at p. 471.) Also in 1976, Health and Safety Code
section 11361.7 “was added to provide in pertinent part that: ‘(a) Any record subject to
destruction . . . pursuant to Section 11361.5, or more than two years of age, or a record of
a conviction for an offense specified in subdivision (a) or (b) of Section 11361.5 which

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became final more than two years previously, shall not be considered to be accurate,
relevant, timely, or complete for any purposes by any agency or person . . . . (b) No
public agency shall alter, amend, assess, condition, deny, limit, postpone, qualify, revoke,
surcharge, or suspend any certificate, franchise, incident, interest, license, opportunity,
permit, privilege, right, or title of any person because of an arrest or conviction for an
offense specified in subdivision (a) or (b) of Section 11361.5 . . . on or after the date the
records . . . are required to be destroyed . . . or two years from the date of such conviction
. . . with respect to . . . convictions occurring prior to January 1, 1976.’ ” (Flores, at
pp. 471-472, italics omitted.) Based on these amendments, the court concluded that “the
Legislature intended to prohibit the use of the specified records for the purpose of
imposing any collateral sanctions,” such as the prior prison term enhancement. (Id. at
p. 472.)
Flores is inapposite because there is no similar declaration of legislative intent for
full retroactivity either in the Act generally or section 1170.18 in particular. If the Act’s
drafters wanted to invalidate prior prison term allegations because the underlying felony
was now a misdemeanor, they could have included legislative language like that
discussed in Flores. They did not.
Defendant’s claims based on the canons of statutory construction fare no better.
Citing the maxim expressio unius est exclusio alterius, “under which ‘the enumeration of
things to which a statute applies is presumed to exclude things not mentioned,’ [citation]”
(Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 89-
90) defendant claims that, “by explicitly carving out an exception for firearm-possession
to treatment of the felony conviction as a misdemeanor upon redesignation of the
conviction pursuant to Proposition 47, the electorate signaled its intention to treat the
conviction as a misdemeanor for purposes of prior prison term enhancements.”
The expression of a limitation on how the misdemeanor designation applies once it
has been established, however, does not clearly and compellingly imply that the

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electorate thereby intended to place no limitation on when the designation applies in the
continuum of time. This is particularly true where, as here, the same language was held
by the Supreme Court not to apply retroactively. The Act’s retroactivity is addressed in
subdivision (a) of section 1170.18, which lists the provisions subject to the Act’s
retroactive application. Notably absent from that list is the prior prison term
enhancement. As with Park, this particular argument of defendant’s actually supports a
contrary interpretation of the Act.
Defendant’s reliance on the Act’s broad purpose “to ensure that prison spending is
focused on violent and serious offenses, to maximize alternatives for nonserious,
nonviolent crime, and to invest the savings generated from this act into prevention and
[to] support programs in K–12 schools, victim services, and mental health and drug
treatment,” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2,
p. 70) as well as its provision for liberal interpretation (id. at § 18, p. 74) is also
misplaced.
“[N]o legislation pursues its purposes at all costs. Deciding what competing
values will or will not be sacrificed to the achievement of a particular objective is the
very essence of legislative choice--it frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the statute’s primary objective must be the
law. Where, as here, ‘the language of a provision . . . is sufficiently clear in its context
and not at odds with the legislative history, . . . “[there is no occasion] to examine the
additional considerations of ‘policy’ . . . that may have influenced the lawmakers in their
formulation of the statute.” ’ [Citation.]” (Rodriguez v. United States (1987) 480 U.S.
522, 525-526 [94 L.Ed.2d 533, 538], italics omitted; accord County of Sonoma v. Cohen
(2015) 235 Cal.App.4th 42, 48.) This is true even where legislation calls for “liberal
construction.” (See, e.g., Foster v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th
1505, 1510 [workers’ compensation law].) The essence of lawmaking is the choice of
deciding to what extent a particular objective outweighs any competing values, and a

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court in the guise of interpretation should not upset this balance where it is spelled out in
the text of a statute. (County of Sonoma, at p. 48.) The statements of purpose in the Act
cannot be invoked to create a retroactive application that the text of the Act does not
support.
Defendant’s citation to the rule of lenity, “whereby courts must resolve doubts as
to the meaning of a statute in a criminal defendant’s favor,” (People v. Avery (2002)
27 Cal.4th 49, 57) is inapplicable here because its application is premised on an
ambiguity that is not present in this part of the Act. “ ‘The rule of statutory interpretation
that ambiguous penal statutes are construed in favor of defendants is inapplicable unless
two reasonable interpretations of the same provision stand in relative equipoise, i.e., that
resolution of the statute’s ambiguities in a convincing manner is impracticable.’ [¶]
Thus, although true ambiguities are resolved in a defendant’s favor, an appellate court
should not strain to interpret a penal statute in defendant’s favor if it can fairly discern a
contrary legislative intent.” (Id. at p. 58.)
Defendant’s final argument is that the Act should be applied to negate her prison
prior so to avoid difficult constitutional questions (see People v. Gutierrez (2014)
58 Cal.4th 1354, 1373 [“we have repeatedly construed penal laws, including laws enacted
by initiative, in a manner that avoids serious constitutional questions”]) fails because our
construction does not raise any serious constitutional questions. She claims that not
applying the Act retroactively to her prison priors raises serious equal protection issues.
Not so.
Whether a legislative body can limit the retroactive application of a change in the
law reducing punishment for crime is a settled question. “[T]he 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. 502, 505 [55 L.Ed. 561, 563].) This also applies to changes in
sentencing law that benefit defendants. “Defendant has not cited a single case, in this

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state or any other, that recognizes an equal protection violation arising from the timing of
the effective date of a statute lessening the punishment for a particular offense.
Numerous courts, however, have rejected such a claim—including this court.” (People v.
Floyd (2003) 31 Cal.4th 179, 188.)
As with her other arguments, defendant’s reliance on In re Kapperman (1974)
11 Cal.3d 542 is misplaced. The Supreme Court held in Kapperman that a change in the
law giving presentence credit for felons transferred to prison after a certain date could not
be applied prospectively because it did not serve “a rational and legitimate state interest.”
(Id. at pp. 546, 550.) Kapperman “does not stand for the broad proposition that equal
protection principles require that all persons who commit the same offense receive the
same punishment or treatment without regard to the date of their misconduct.” (Baker v.
Superior Court (1984) 35 Cal.3d 663, 669.) As this court stated, “[t]he Kapperman court
took pains to point out its decision did not apply to laws reducing punishment for crimes.
‘Initially, we point out that this case is not governed by cases [citation] involving the
application to previously convicted offenders of statutes lessening the punishment for a
particular offense. 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. [Citation.]’ (Kapperman,
supra, 11 Cal.3d at p. 546.) Therefore, Kapperman does not prevent the prospective
application of a statute reducing punishment for a crime. [Citations.]” (People v. Lynch
(2012) 209 Cal.App.4th 353, 360, italics omitted.)
A statute that “substantially changes the legal consequences of past events” is not
applied retroactively absent clear legislative intent to do so. (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 243.) There is no evidence of a legislative intent
to apply subdivision (k) retroactively. This is particularly true where, as here, the closely
analogous language in section 17 has not been given a retroactive application. “Where,
as here, legislation has been judicially construed and a subsequent statute on the same or

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an analogous subject uses identical or substantially similar language, we may presume
that the Legislature intended the same construction, unless a contrary intent clearly
appears.” (Estate of Griswold (2001) 25 Cal.4th 904, 915-916.) “Generally, the drafters
who frame an initiative statute and the voters who enact it may be deemed to be aware of
the judicial construction of the law that served as its source.” (In re Harris (1989)
49 Cal.3d 131, 136.)
Since Proposition 47 is not intended to apply retroactively to prior prison term
enhancements, the trial court correctly denied defendant’s petition.
DISPOSITION
The judgment (order) is affirmed.
/s/
Blease, J.
We concur:
/s/
Raye, P. J.
/s/
Renner, J.

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