P. v. Trimble

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Filed 9/29/17 P. v. Trimble CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON ARTHUR TRIMBLE,
Defendant and Appellant.
A147345
(Solano County
Super. Ct. No. FCR291074)
Proposition 47, passed by the voters in November 2014, reclassified certain
nonserious, nonviolent offenses from felonies to misdemeanors. The measure also
enacted Penal Code section 1170.18,1 which permits offenders to petition the superior
court to redesignate their felony convictions and reduce their sentences based on the new
misdemeanor classification.
Appellant challenges the trial court’s denial of his petition to strike a one-year
enhancement for a prior prison term based on a felony conviction that had subsequently
been reduced to a misdemeanor pursuant to Proposition 47.
Concluding that the trial court erred, we shall reverse the judgment and remand the
matter with directions to grant appellant’s petition to strike the enhancement.
FACTS AND PROCEEDINGS BELOW
In January 2013, in Solano County Superior Court case No. 291074, appellant
pleaded no contest to transportation of a controlled substance (Health & Saf. Code,
1 All further statutory references are to the Penal Code unless otherwise indicated.

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§ 11379, subd. (a)) and admitted four prior prison term commitments. As specified by
section 667.5, subdivision (b), all such commitments were felonies at that time. On that
same date, in case No. 286093, appellant pleaded no contest to the unauthorized
possession of a controlled substance pursuant to Health and Safety Code section 11377.
In May of that year, the court sentenced appellant to a term of seven years in case No.
291074, suspended execution of sentence, and granted formal probation for five years.
Six weeks later, appellant admitted to having twice violated the terms and conditions of
that probation. The trial court then imposed the seven-year sentence that had been
suspended in case No. 291074, and a consecutive eight-month term in case No. 286093.
About a year and a half later, on January 26, 2015, the public defender petitioned
the court for modification of appellant’s sentence because one of the four prior prison
terms used to enhance the sentence in case No. 291074 had been reduced to a
misdemeanor by Proposition 47. (§ 1170.18, subdivision (a)). Three weeks later the
public defender withdrew the petition only as to case No. 291074. The trial court then
granted the petition as to case No. 286093, reducing the prior felony to a misdemeanor.
On March 30, 2015, acting in propria persona, appellant sought to represent
himself by filing a Faretta motion2 seeking an order authorizing him to represent himself
and also requesting relief under section 1170.18 in this case (No. 291074). On June 30,
2015, in this case, appellant asked the court to reduce the prior conviction in a 2007 case
(No. 241139), of unauthorized possession of a controlled substance in violation of Health
and Safety Code section 11377, which was the basis of one of the four one-year prior
prison term enhancements in this case, from a felony to a misdemeanor. At the time
appellant was convicted of that offense, possession of a controlled substance in violation
of Health and Safety Code section 11377 was punishable as either a felony or a
misdemeanor. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) As a result of
Proposition 47 the offense was made punishable as a misdemeanor “unless the defendant
‘has one or more prior convictions’ for an offense specified in section 667, subdivision
2 Faretta v. California (1975) 422 U.S, 806

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(e)(2)(C)(iv).” (Lynall, at p. 1108.) Because appellant had no such prior convictions, the
court granted the reduction. In doing so, the court stated that it understood appellant to
be saying, “ ‘First I want to get my misdemeanor on the prison prior.’ And then I suspect
he will want to say, ‘[b]ut if you gave me that prison prior on the sentence, now that it’s
reduced to a misdemeanor, and I want a year off my [present] sentence.’ ” Appellant
affirmed that was his intention.
A week later, on July 7, 2015, the court re-appointed the public defender and
asked the parties to file briefs as to whether an enhancement for a prior prison term
should be stricken in case No. 291074 due to the court’s reduction to a misdemeanor of
the offense for which appellant served the prior prison term. The court explained the
situation as follows: “In 291074 . . . [h]e received three years, which was the mid-term.
The second case, 286093, he had received 8 months consec[utive] for [conviction of
violating Health and Safety Code section] 11377. That was already taken off his
sentence. And then he had four prison priors for a total of 7 years. So it got reduced
from . . . 8 to 7.” The court went on to explain to the prosecutor that appellant was now
trying to “get it reduced to six years” because of the reduction to a misdemeanor of the
offense for which appellant served a prior prison term.
The trial brief filed by the public defender, like the brief filed by appellant in this
appeal, relied on subdivision (k) of section 1170.18, which states that any felony
conviction that is recalled and resentenced under subdivision (b) of the statute “shall be
considered a misdemeanor for all purposes,” except for the right to own or possess
firearms. (Italics added.) The public defender maintained that the phrase “for all
purposes” must be given its plain meaning, so that such a conviction cannot later be used
as a prison prior; and therefore any later sentence based on the prior “must be stricken
when requested by a defendant.”
The district attorney first argued that the enhancement should not be stricken
because “generally a trial court lacks jurisdiction to resentence a criminal defendant after
execution of sentence has begun” (People v. Howard (1997) 16 Cal.4th 1081, 1089) and
the exception to that rule carved out by section 1170, subdivision (d), which in certain

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circumstances allows a court to “recall the sentence and commitment previously ordered
and resentence the defendant in the same manner as if he or she had not previously been
sentenced,” does not apply because more than 120 days had passed since the challenged
sentence was imposed. This argument is not advanced by the People on this appeal and
we therefore do not address it.
The People’s second argument in the trial court was that section 1170.18 does not
authorize recall and resentencing in this case. This is assertedly so because the plain
language of section 1170.18 subdivision (a), authorizes the trial court to resentence a
defendant “currently serving a sentence for a conviction” if the offense would have been
“a misdemeanor under [Proposition 47] had [that Act] been in effect at the time of the
offense.” This issue is also not raised by the People in this court, presumably because, as
we have said, Health and Safety Code section 11377 was later reduced to a misdemeanor
by Proposition 47, and appellant could not have received a prison term for that offense
(§ 1107.18, subd. (a)) had Proposition 47 been in effect at the time appellant committed
the prison prior at issue. (Health & Saf. Code, § 11377, subd. (b).)
The district attorney’s third argument in the trial court, which is raised by the
People here, is that appellant’s prior prison term was completed within the meaning of
section 667.5, subdivision (g), and the imposition of an enhancement on that basis
“remains valid” because, like all enhancements authorized by section 667.5, subdivision
(b), the additional punishment is imposed “to punish individuals” who have shown that
they are “hardened criminal[s] who [are] undeterred by the fear of prison.” (People v.
Jones (1993) 5 Cal.4th 1142, 1148.) Because Proposition 47 has not altered appellant’s
status as such a recidivist, the People maintain that striking the enhancement would
conflict with the policy of section 667.5. We address this contention in the body of this
opinion.
Although the People did not in the trial court affirmatively assert that Proposition
47 has no retroactive effect, they properly raise it here in opposition to appellant’s
attribution of such effect to the Act and we will address it.

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At a hearing on September 18, 2015, after lamenting the dearth of case law
providing any useful guidelines, and relying on the absence of any authority upon which
to strike a prior prison term enhancement subsequently reduced to a misdemeanor
pursuant to Proposition 47, the trial court denied the petition to strike the prior “without
prejudice.” The reason for this ruling was unexplained.
Timely notice of this appeal was filed on November 2, 2015 and a request for a
certificate of probable cause was granted on January 13, 2016.
DISCUSSION
Our review is de novo as the question presented is solely one of law. (See, e.g.,
Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911,
916.)
As we shall explain, we conclude that the trial court erred in denying the petition
to recall and resentence, and therefore shall reverse the ruling and remand the case for
resentencing in the trial court.
In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and
Schools Act, which reclassified numerous theft and drug felonies and “wobblers” as
misdemeanors. (§ 1170.18.) Under subdivisions (a) and (b) of section 1170.18,
defendants who, like appellant, are currently serving sentences for convictions of felonies
that after Proposition 47 are considered misdemeanors can petition for recall of their
sentences before the trial court that entered the judgment. Subdivision (b) provides that if
the criteria of subdivision (a) are satisfied the petitioner’s felony sentence “shall be
recalled and the petitioner resentenced to a misdemeanor” pursuant to specified
provisions of the Health and Safety Code and the Penal Code. Significantly, as
previously noted, subdivision (k) of section 1170.18 provides that “[a]ny felony
conviction that is recalled and resentenced under subdivision (b) . . . shall be considered a
misdemeanor for all purposes.” (§ 1170.18, subd. (k).)
Appellant acknowledges, and the Attorney General apparently agrees, that there
appears to be no citable case law on the precise issue of whether the voters who enacted
Proposition 47 intended the reduction of a prior conviction to a misdemeanor would also

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result in the reduction of an enhancement for a prior prison term under section 667.5,
subdivision (b), at least where, as here, the defendant had already been sentenced on the
enhancement.3
I.
The Trial Court Misinterpreted Section 1170.18
Resting on the statement in subdivision (k) of section 1170.18 that a felony
conviction recalled and resentenced “shall be considered a misdemeanor for all purposes”
except firearm restrictions, appellant relies on People v. Park (2013) 56 Cal.4th 782
(Park), which interprets that phrase as used in section 17, subdivision (b), which is the
source of the language also used in subdivision (k) of section 1170.18. In Park the trial
court imposed a five-year enhancement of the defendant’s sentence pursuant to section
667, subdivision (a), based on his prior conviction of a serious felony. After the
defendant had pleaded guilty to that charge, the court had suspended imposition of
sentence and granted probation. Later, but before the defendant committed the current
crimes, the trial court had reduced the prior offense to a misdemeanor under section 17,
subdivision (b)(3), and then dismissed it pursuant to section 1203.4, subdivision (a)(1).
(Park, at p. 787.) The Court of Appeal held that the conviction remained a prior serious
felony for purposes of sentence enhancement notwithstanding its reduction to a
3 As appellant points out, on March 30, 2016, the California Supreme Court
granted review in People v. Valenzuela (2016) 244 Cal.App.4th 692, case No. S232900,
which does discuss issues presented in this case, and three other similar cases in which
briefing has been deferred are awaiting the decision Valenzuela: People v. Carrea (2016)
244 Cal.App.4th 966, review granted April 27, 2016, S233011; People v. Ruff (2016) 244
Cal.App.4th 935, review granted May 11, 2016, S233201; and People v. Williams (2016)
245 Cal.App.4th 458, review granted May 11, 2016, S233539.
All four of the above cases are published in the official advance sheets of the
California Official Reports, but not in the bound volumes of the Reports, and are not
citable because in all of them review was granted prior to July 2016, the effective date of
the current edition of the California Rules of Court. Under new subdivision (e)(1) of rule
8.1115, if the Supreme Court grants review of a published Court of Appeal decision, that
decision now remains published and citable—“for potentially persuasive value only”—
while review is pending.

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misdemeanor, and affirmed the five-year enhancement. (Ibid.) The Supreme Court
reversed the Court of Appeal, concluding that after reduction of the prior offense to a
misdemeanor it could not be used under section 667, subdivision (a), to enhance the
defendant’s sentence. (Park, at p. 787.)
Park is relevant for two reasons. Because, like section 1170.18, section 667 was
added by voter initiative, the opinion discusses the nature of judicial review of such a
statute. Also, section 17, subdivision (b) is like subdivision (k) of section 1170.18 as it
also authorizes reduction of a crime punished as a felony (though only one that, as a
“wobbler” could also have been punished as a misdemeanor), and also states that after the
reduction the crime becomes “a misdemeanor for all purposes.” (§ 17, subd. (b).)
Indeed, the drafters of Proposition 47 borrowed the “misdemeanor for all purposes”
language in section 1170.18, subdivision (k), from section 17, subdivision (b). (People v.
Abdallah (2016) 246 Cal.App.4th 736, 745 (Abdallah).)
With respect to judicial review, Park states that when interpreting a statute added
by voter initiative “it is the voters’ intent that controls” but judicial interpretation of such
a measure is nonetheless “governed by the same rules that apply in construing a statute
enacted by the Legislature. [Citations.] We therefore look to ‘the language of the statute,
affording the words their ordinary and usual meaning and viewing them in their statutory
context.’ [Citations.] Once the electorate’s intent has been ascertained, the provisions
must be construed to conform to that intent. [Citation.] ‘[W]e may not properly interpret
the measure in a way that the electorate did not contemplate: the voters should get what
they enacted, not more and not less.’ [Citation.]” (Park, supra, 56 Cal.4th at p. 796.)
The Park court observed that a “wobbler” becomes “a misdemeanor for all
purposes” under section 17, subdivision (b)(3), “when the court takes affirmative steps to
classify the crime as a misdemeanor. When the court properly has exercised its
discretion to reduce a wobbler to a misdemeanor under the procedures set forth in section
17(b), the statute generally has been construed in accordance with its plain language to
mean that the offense is a misdemeanor ‘for all purposes.’ [Citations]” (Park, supra, 56
Cal.4th at p. 793.) Noting that reduction of a wobbler to a misdemeanor under section

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17(b) “generally precludes its use as a prior felony conviction in a subsequent
prosecution” (Park, at p. 794), the court explained that “one of the ‘chief’ reasons for
reducing a wobbler to a misdemeanor ‘is that under such circumstances the offense is not
considered to be serious enough to entitle the court to resort to it as a prior conviction of a
felony for the purpose of increasing the penalty for a subsequent crime.’ ” (Ibid., quoting
In re Rogers (1937) 20 Cal.App.2d 397, 400-401.) The only situation in which a court
may continue to use a prior conviction reduced to a misdemeanor under section 17(b) as a
felony is when the Legislature “has explicitly made clear its intent to treat a wobbler as a
felony for specified purposes notwithstanding a court’s exercise of discretion to reduce
the offense to a misdemeanor.” (Ibid.)4
Relying on the general presumption that those who enact statutes do so with an
awareness of existing statutes and relevant judicial decisions (John L. v. Superior Court
(2004) 33 Cal.4th 158, 171), appellant maintains that in passing Proposition 47 the
electorate must be deemed to have been aware of the determination by the Supreme Court
that, as employed in section 17, subdivision (b), the phrase “misdemeanor for all
purposes” means exactly that in the absence of any indication in the language or history
of a statute that the lawmaker intended otherwise. Appellant emphasizes that nothing in
the language of section 1170.18 indicates any intention of the electorate to place any
limitations on the phrase “misdemeanor for all purposes,” except the restrictions on the
possession or use of firearms by felons that it specifically exempted. (Alejandro N. v.
Superior Court (2015) 238 Cal.App.4th 1209, 1227 (Alejandro N.) [“The plain language
of section 1170.18, subdivision (k) reflects the voters intended the redesignated
misdemeanor offense should be treated exactly like any other misdemeanor offense,
except for firearms restrictions”].)
4 Although the issue here was not before the court in Park, the opinion does
contain dicta that there was “no dispute that . . . defendant would be subject to the section
667(a) enhancement had he committed and been convicted of the present crimes before
the court reduced the earlier offense to a misdemeanor.” (Park, supra, 56 Cal.4th at
p. 802.)

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The Attorney General rejects appellant’s reasoning because it ignores the
difference between enhancements which go to the nature of the offense rather than to the
nature of the offender, such as those authorized by section 667.5, subdivision (b). (People
v. Coronado (1995) 12 Cal.4th 145, 156.) Noting that the purpose of that enhancement
statute “is ‘to punish individuals’ who have shown that they are ‘ “hardened criminal[s]
who [are] undeterred by the fear of prison” ’ ” (In re Preston (2009) 176 Cal.App.4th
1109, 1115), the People argue that section 677.5, subdivision (b) reflects a legislative
conclusion that a prior conviction resulting in a prison term is deserving of greater
punishment than a prior conviction involving a lesser degree of confinement, because that
statute targets not just any recidivist but a particularly incorrigible kind of recidivist: the
“ ‘felon whose prior prison term failed to deter future criminality.’ [Citation.]” (People
v. Levell (1988) 201 Cal.App.3d 749, 754, quoting People v. Bruno (1987) 191
Cal.App.3d 1102, 1107.) Given this legislative purpose, the People contend that
reclassification of appellant’s drug possession offense as a misdemeanor did not change
the immutable facts that appellant served a prior prison term and that punishment did not
deter him from committing a subsequent drug offense. According to the People,
appellant’s recidivism makes him “ ‘just the sort of example that the Legislature had in
mind when it set up its scheme to inflict additional punishment for repeat offenders.’
[Citation.]” (In re Preston, at p. 117.)
The problem with this argument is that nothing in section 1170.18 suggests—let
alone “explicitly ma[kes] clear” (Park, supra, 56 Cal.4th at p. 794)—an intent to treat an
offense that has been reduced to a misdemeanor as a felony in a subsequent prosecution of
the same offender. Such an intention is hard to imagine, as it would deny the benefits of
Proposition 47 to an enormous number of nonviolent offenders eligible for relief under
that measure, notwithstanding a court’s exercise of discretion to reduce the offense to a
misdemeanor.
Furthermore, if Proposition 47 had been in effect at the time appellant committed
the subject prior he would not have been subject to a prison term, because Proposition 47
reduced the unauthorized possession or use of a controlled substance in violation of

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section 11377 from a felony to a misdemeanor. (Health & Saf. Code, § 11377 subd. (b).)
As the Supreme Court has said, “ ‘[o]ne of Proposition 47’s primary purposes is to reduce
the number of nonviolent offenders in state prisons, thereby saving money and focusing
prison on offenders considered more serious under the terms of the initiative.’ (Harris v.
Superior Court (2016) 1 Cal.5th 984, 992 (Harris).) The Act also expressly states an
intent to ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes,
like petty theft and drug possession, unless the defender has prior convictions for
specified violent or serious crimes.’ ” (Voter Information Guide, General Elec. (Nov.
2014) text of Prop. 47, § 3, subd. (3), p. 70.)
Considering that, absent a statutory command to the contrary, reduction of a
wobbler to a misdemeanor under section 17, subdivision (b) precludes its use as a prior
felony conviction in a subsequent prosecution (People v. Camarillo (2000) 84
Cal.App.4th 1386, 1390), the same rule should apply to the reduction of a felony to a
misdemeanor under section 1170.18. The reduction of a violation of Health and Safety
Code section 11377 to a misdemeanor by the voters who enacted Proposition 47
demonstrates that this offense is no longer “ ‘considered to be serious enough to entitle
the court to resort to it as a prior conviction of a felony for the purpose of increasing the
penalty for a subsequent crime.’ ” (Park, supra, 56 Cal.4th at p. 794, quoting In re
Rogers, supra, 20 Cal.App.2d at pp. 400-401.)5
5 Our conclusion that the challenged enhancement must be stricken renders it
unnecessary to address appellant’s claims under the equal protection clauses of the
Constitutions of the United States and the State of California, which are advanced in the
event the People argue on appeal that his reduced conviction provides no relief from the
challenged enhancement, but admit “that those sentenced post-Proposition 47 cannot be
subject to such an enhancement under section 667.5 subdivision (b).”

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II.
Proposition 47 is Not Impermissibly Retroactive
The People maintain that appellant’s argument that redesignation of the felony as a
misdemeanor can prevail “only if Penal Code section 1170.18, subdivision (k) gives the
redesignation retroactive effect, but Proposition 47 does not have that effect.” The
People’s claim is based almost entirely on People v. Rivera (2015) 233 Cal.App.4th 1085
(Rivera).
In that case, after pleading no contest to felony possession of a controlled
substance, the defendant was granted probation without imposition of sentence, and the
trial court subsequently reduced his offense to a misdemeanor under section 1170.18.
(Rivera, supra, 233 Cal.App.4th at pp. 1090-1091.) The Court of Appeal held that it,
rather than the appellate division of the superior court, had jurisdiction over the appeal
because Rivera’s case was a felony for purposes of appellate jurisdiction. The court
explained that “[i]n criminal cases, the Courts of Appeal have ‘appellate jurisdiction over
appealable orders from “felony case[s]” ’ and ‘the appellate divisions of the superior
courts, by contrast, have appellate jurisdiction over appealable orders from “misdemeanor
case[s].” ’ [Citations.] [¶] Section 691 defines a ‘felony case’ as ‘a criminal action in
which a felony is charged and includes a criminal action in which a misdemeanor or
infraction is charged in conjunction with a felony.’ (§ 691, subd. (f).) . . .” (Rivera, at
p. 1093.) Additionally, Rivera notes that under section 859a “[a] felony case includes an
action in which the defendant is charged with [¶] (A) A felony and a misdemeanor or
infraction; . . . [¶] (B) A felony, but is convicted of only a lesser offense; or [¶] (C) An
offense filed as a felony but punishable as either a felony or a misdemeanor, and the
offense is thereafter deemed a misdemeanor under . . . section 17(b).’ ” (Rivera, at
p. 1095.)
In the course of explaining why it rather than the appellate division of the superior
court had appellate jurisdiction over the defendant’s appeal, the Rivera court concluded
that “[n]othing in the text of Proposition 47 or the ballot materials for Proposition 47 . . .
contains any indication that Proposition 47 or the language of section 1170.18,

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subdivision (k) was intended to change preexisting rules regarding appellate jurisdiction.”
(Rivera, supra, 233 Cal.App.4th at p. 1100.) For these reasons, the court presumed “that
the phrase ‘shall be considered a misdemeanor for all purposes’ in section 1170.18,
subdivision (k) does not apply retroactively.” (Ibid.)
The retroactivity vel non of subdivision (k) of section 1170.18 is admittedly
unclear in the case law, which is presumably why the issue is now being considered by
the Supreme Court. However, like the court in Alejandro N., supra, 238 Cal.App.4th
1209, we do not think Rivera’s analysis, which focuses on a jurisdictional issue not
present in this case, is persuasive.
In Alejandro N., which is far more on point, the trial court reduced a juvenile
offender’s maximum period of confinement to the misdemeanor level (Welf. & Inst.
Code, § 726) for an offense previously designated a felony and reclassified as a
misdemeanor under Proposition 47, but declined to reclassify the offense from a felony to
a misdemeanor under subdivision (k) of section 1170.18, so that the juvenile could be
required to give a DNA sample to law enforcement upon arrest for a felony and that
information could be retained in the state database. (Alejandro N., supra, 238
Cal.App.4th at pp. 1216-1217.)
Granting the juvenile’s writ petition in part, the Court of Appeal held that the
juvenile was entitled to redesignation of the adjudication to a misdemeanor under section
1170.18, and that DNA collection was therefore unauthorized. As the court stated,
“Proposition 47 made its reclassification benefit available to eligible offenders on a
retroactive basis by adding section 1170.18 to the Penal Code. Section 1170.18,
subdivision (k) expressly addresses the impact of an offender’s successful reclassification
of his or her felony offense to a misdemeanor, stating: ‘Any felony conviction that is
recalled and resentenced . . . or redesignated as a misdemeanor . . . 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 [the firearm restriction statutes].’ ” (Alejandro N., supra, 238
Cal.App.4th at p. 1227.)

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Alejandro N. went on to rely on the plain language of subdivision (k) of section
1170.18, which “reflects the voters intended the redesignated misdemeanor offense
should be treated exactly like any other misdemeanor offense, except for firearm
restrictions. Because the statute explicitly addresses what, if any, exceptions should be
afforded 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.”6
(Alejandro N., supra, 238 Cal.App.4th at p. 1227.)
The Alejandro N. court was aware that the recent opinion in Rivera had expressed
a different view of the effect of section 1170.18, subdivision (k) but distinguished and
disregarded Rivera on the ground that, “[u]nlike the circumstances here,” the conclusion
in that case “was supported by the governing statutes and rules that define the meaning of
felony cases for purposes of appellate jurisdiction.” (Alejandro N., supra, 238
Cal.App.4th at p. 1227, fn. 8.) We also believe Rivera should be limited to that issue.
Alejandro N. is not the only case concluding that Proposition 47 has a retroactive
aspect. Abdallah, supra, 246 Cal.App.4th 736 also persuasively explains why application
of section 1170.18, subdivision (k) to appellant should not be deemed impermissibly
retroactive. After Abdallah was convicted of drug and firearm offenses in 2014, the trial
court imposed an aggregate prison sentence of five years, which included a one-year
enhancement pursuant to section 667.5, subdivision (b), which excludes from the prior
prison term enhancement defendants who had not been convicted of a felony or
6 Since Alejandro N. was decided the Legislature amended section 299,
subdivision (f), by inserting section “1170.18” among the statutes that do not authorize a
judge to relieve a person of the duty to provide a DNA sample. (In re J.C. (2016) 246
Cal.App.4th 1462, 1472; accord People v. Harris (2017) ___ Cal.App.5th ___ [2017 WL
3883795] [court that decided Alejandro N. held, in light of amendment, expungement of a
DNA sample was no longer permitted for a defendant whose felony conviction was
reduced to a misdemeanor under Prop. 47].) However, Alejandro N. remains good law
and the subsequent amendment of the statute relevant to that case does not change our
analysis.

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committed to prison or jail custody within five years of release from incarceration. This
enhancement had been imposed on the ground that the defendant had been released on
parole in 2005 from a driving under the influence (DUI) conviction he had suffered in
2002, and then had been arrested less than five years later in 2009 for a new felony,
possession of methamphetamine, for which he was convicted in 2011. (Abdallah, at
pp. 739-740.)
The Court of Appeal modified the 2014 judgment by striking the one-year prior
prison term enhancement, concluding Abdallah no longer qualified for his 2002 felony
conviction for DUI. At the time of his 2011 conviction for possession of
methamphetamine, the unauthorized possession of controlled substance (Health & Saf.
Code § 11377) was a “wobbler.” (See Abdallah, supra, 246 Cal.App.4th at p. 744.) The
appellate court concluded that Proposition 47 precluded the trial court from using the
2011 conviction for possession of methamphetamine as a felony merely because it was a
felony at the time Abdallah committed the offense. (Abdallah, at pp. 740, 747.)
In reaching this result, the Court of Appeal rejected the People’s argument that the
prior prison term enhancement applied to Abdallah because he reoffended within five
years of his release on parole on the 2002 conviction, and reduction of the offense to a
misdemeanor under Proposition 47 was inconsequential because the Proposition does not
purport “to ‘go back in time’ and apply retroactively to every affected offense in every
context.” (Abdallah, supra, 246 Cal.App.4th at p. 746.) The Abdallah court took the
position that finding Abdallah ineligible for the one-year enhancement under section
667.5, subdivision (b) “does not apply Proposition 47 retroactively.” (Abdallah, at
p. 746.) As the court explained, “[t]he trial court did not use Abdallah’s 2011 conviction
as if it were a felony conviction for purposes of imposing the prior prison term
enhancement until after the court had recalled Abdallah’s 2011 sentence and resentenced
him under Proposition 47. The court did not reach back in time to resentence Abdallah in
the current case based on the redesignation of a predicate offense under section 1170.18,
subdivision (f), for the prior prison term enhancement.” (Ibid.)

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For this reason, the Abdallah court distinguished the case from those holding that
Proposition 47 does not apply retroactively to redesignate predicate offenses as
misdemeanors for purposes of imposing sentencing enhancements where the original
sentence was imposed before the enactment of Proposition 47. (Abdallah, supra, 246
Cal.App.4th at p. 747, citing, as examples, People v. Williams, supra, 245 Cal.App.4th at
p. 463; People v. Carrea, supra, 244 Cal.App.4th at p. 971; People v. Ruff, supra, 244
Cal.App.4th at p. 943, all of which, as earlier noted, are now under review by the
Supreme Court.) “Indeed,” the court stated, “those cases suggest that where, as here, a
prior conviction is no longer a felony at the time a court imposes a sentence enhancement
under section 667.5, Proposition 47 precludes the court from using that conviction as a
felony merely because it was a felony at the time the defendant committed the offense.”
(Abdallah, at p. 747.)
Finally, we think that the “retroactive” application of Proposition 47 described in
Alejandro N., Abdallah, and other cases must have been contemplated by the enactors of
Proposition 47 because such application is implicit in the recall and resentencing
procedure established by subdivisions (b) and (g) of section 1170.18; those subdivisions
are referred to in subdivision (k) (which states that “[a]ny felony conviction recalled and
resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes. . . .”)
We conclude that, as applied to appellant, Proposition 47 is not impermissibly
retroactive.
III.
The Counts Dismissed as Part of the Plea Bargain
Cannot be Reinstated by the Prosecution
Anticipating we might find that the challenged enhancement should have been
stricken, the People maintain that in that event the prosecutor should be given the
opportunity to reinstate the counts dismissed as part of the original plea agreement;
presumably, this includes the charges originally made in case No. 286093, as well as

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those in case No 291074. This contention is based almost entirely on People v. Collins
(1978) 21 Cal.3d 208 (Collins), a clearly inapposite case.
In Harris, supra, 1 Cal.5th 984, which was decided after the close of briefing in
this case, the Supreme Court addressed the question whether the result of Collins
(allowing a party to rescind a plea agreement when a subsequent change in the law
deprives it of the benefit of its bargain), or the rule in Doe v. Harris (2013) 57 Cal.4th 64,
(holding that entering into a plea agreement does not insulate the parties “from changes in
the law that the Legislature has intended to apply to them” (id. at p. 66, italics added)
applied to the factual situation in Harris in which, as in the present case, the change in the
law was effectuated by Proposition 47. The Harris court found the situation in Collins
distinguishable from that at issue in Harris (and here) both substantively and procedurally
because it was not the Legislature, but the electorate, that enacted Proposition 47, and the
electorate clearly intended the change to apply to the parties to a future plea agreement
comparable to that in Harris and the present case.7 Accordingly, as in Harris, the opinion
that governs the present case is not Collins but Doe v. Harris, supra, 57 Cal.4th 64.
Accordingly, when appellant seeks to have his sentence recalled under Proposition
47, the People are not entitled to set aside the plea agreement.
DISPOSITION
For the foregoing reasons, the judgment is reversed and the cause remanded for
further proceedings in accordance with the views expressed in this opinion.
7 The Harris court also distinguished Collins because in that case the People
sought to withdraw from the plea agreement before sentencing and the change in the law
decriminalized the offense to which the defendant had pled, thereby eviscerating the
judgment and the underlying plea bargain entirely, before the judgment had been entered.
(Harris, supra, 1 Cal.5th at p. 993.)

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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Miller, J.

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