P. v. Velasquez

Filed 10/18/16 P. v. Velasquez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RENE VELASQUEZ,
Defendant and Appellant.
B264142
(Los Angeles County
Super. Ct. No. BA405723)
APPEAL from an order of the Superior Court of Los Angeles County,
Charlaine F. Olmedo, Judge. Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Carl N.
Henry, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Appellant Rene Velasquez appeals the trial court’s order partially denying his
request to recall his sentence and resentence him pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act. Velasquez is currently serving a prison sentence that
includes five 1-year prior prison term enhancements imposed pursuant to Penal Code
section 667.5, subdivision (b).1 After passage of Proposition 47, and after sentence was
imposed in the current case, Velasquez successfully petitioned to have one of the five
prior convictions redesignated as a misdemeanor. He also sought resentencing in his
current case, claiming that one of the section 667.5, subdivision (b) enhancements was
invalid because it was predicated upon the conviction that had been redesignated a
misdemeanor. We conclude the enhancement was unaffected by Proposition 47 and
affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On May 3, 2013, the trial court found Velasquez guilty of the second degree
robbery of a victim who was 65 years of age or older (the “current offense”).2 (§§ 211,
667.9, subd. (a).) It also found Velazquez had served five prior prison terms within the
meaning of section 667.5, subdivision (b). On May 17, 2013, the trial court sentenced
Velasquez to a total of nine years in state prison, comprised of three years for the
robbery, one year for the section 667.9 age enhancement, and five 1-year terms for the
section 667.5, subdivision (b) prior prison term enhancements. We affirmed the
judgment in an unpublished opinion. (People v. Velasquez (Dec. 12, 2013, B248857).3
On November 4, 2014, while Velasquez was still serving his sentence on the
current offense, the voters enacted Proposition 47, which went into effect the following
day. (People v. Morales (2016) 63 Cal.4th 399, 404; People v. Lynall (2015)
1 All further undesignated statutory references are to the Penal Code.
2 A bench trial was held after Velasquez waived his right to a jury trial.
3 We take judicial notice of our unpublished opinion. (Evid. Code, §§ 459,
subd. (a), 452, subd. (d).)

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233 Cal.App.4th 1102, 1108.) Proposition 47 amended and enacted various provisions of
the Penal and Health and Safety Codes that reduced certain drug and theft offenses to
misdemeanors, unless committed by ineligible offenders. (People v. Rivera (2015)
233 Cal.App.4th 1085, 1091; People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328.)
These offenses had previously been either felonies or wobblers. (People v. Rivera, supra,
at p. 1091; People v. Lynall, supra, at p. 1108.) Proposition 47 also enacted section
1170.18, which created a procedure whereby an eligible defendant who has suffered a
felony conviction of one of the enumerated crimes can petition to have it designated as a
misdemeanor.
On February 26, 2015, Velasquez, represented by counsel, filed a petition for
recall of his sentence and resentencing pursuant to section 1170.18. He sought to have a
1997 conviction for possession of a controlled substance (Health & Saf. Code, § 11350,
subd. (a)) designated a misdemeanor pursuant to Proposition 47. He also sought to have
the section 667.5 enhancement that was predicated on the 1997 conviction stricken,
because after redesignation the 1997 offense was no longer a felony.4
At a May 6, 2015 hearing the trial court granted the petition insofar as Velasquez
sought to have the 1997 conviction reduced to a misdemeanor, but denied it insofar as
Velasquez sought to have the section 667.5, subdivision (b) enhancement imposed in the
current case stricken. It explained: “The court is inclined to grant the 47 reduction to a
misdemeanor on the [Health and Safety Code section] 11350 because he qualifies for
that. But the court is refusing to or denying the request to strike it as a qualifier under
[section] 667.5(b) as a prior prison sentencing enhancement at the time defendant was
sentenced in this case. That is a collateral consequence of certain prison time. And the
court feels that that status of the law has not changed by virtue of Prop 47.”
4 Although the petition was cursory and unclear, the parties’ arguments at the
subsequent hearing clarified the relief Velasquez sought. Velasquez did not request
redesignation of the other offenses upon which the remaining four section 667.5,
subdivision (b) enhancements were based.

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Velasquez appeals the trial court’s denial of his request to strike the section 667.5,
subdivision (b) enhancement. (See Teal v. Superior Court (2014) 60 Cal.4th 595 (Teal).)
DISCUSSION
1. Sections 1170.18 and 667.5, subdivision (b)
Proposition 47 created two separate procedures for redesignating an offense as a
misdemeanor. A defendant who is currently serving a felony sentence for an offense now
classified as a misdemeanor by Proposition 47 may petition to recall the sentence and
request resentencing. (§ 1170.18, subd. (a); People v. Rivera, supra, 233 Cal.App.4th at
pp. 1092, 1099.) If the petitioner meets the statutory eligibility criteria, he or she is
entitled to resentencing unless the trial court determines, in its discretion, that
resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.18,
subd. (b).) Eligible persons who have already completed their sentences for such
offenses may file an application to have their felony convictions designated as
misdemeanors. (§ 1170.18, subds. (f), (g); People v. Abdallah (2016) 246 Cal.App.4th
736, 743-744; People v. Rivera, supra, at pp. 1093, 1099.)5 Section 1170.18,
5 Section 1170.18, subdivisions (a), (b), (f), and (g) provide, in pertinent part:
“(a) 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.
“(b) Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to 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, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.
“[¶] . . . [¶]

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subdivision (k) provides: “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 in regard to restrictions on the ownership or
possession of firearms. Subdivision (n) states: “Nothing in this and related sections is
intended to diminish or abrogate the finality of judgments in any case not falling within
the purview of this act.”
Section 667.5, subdivision (b), requires imposition of a one-year enhancement for
each of a defendant’s prior felony convictions that resulted in a separate term of
imprisonment, when the defendant commits another felony within five years of release
from custody.6 (See People v. Langston (2004) 33 Cal.4th 1237, 1241; People v.
Abdallah, supra, 246 Cal.App.4th at p. 740.) “Imposition of a sentence enhancement
under Penal Code section 667.5 requires proof that the defendant: (1) was previously
convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed
“(f) A person who has completed his or her sentence for a conviction, whether by
trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under
this act had this act been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his or her case to have the
felony conviction or convictions designated as misdemeanors.
“(g) If the application satisfies the criteria in subdivision (f), the court shall
designate the felony offense or offenses as a misdemeanor.”
6 Section 667.5, subdivision (b) provides, in pertinent part and subject to exceptions
not relevant here, that “where the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is
imposed or is not suspended, in addition and consecutive to any other sentence therefor,
the court shall impose a one-year term for each prior separate prison term or county jail
term imposed under subdivision (h) of Section 1170 or when sentence is not suspended
for any felony; provided that no additional term shall be imposed under this subdivision
for any prison term or county jail term imposed under subdivision (h) of Section 1170 or
when sentence is not suspended prior to a period of five years in which the defendant
remained free of both the commission of an offense which results in a felony conviction,
and prison custody or the imposition of a term of jail custody imposed under subdivision
(h) of Section 1170 or any felony sentence that is not suspended.”

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that term of imprisonment; and (4) did not remain free for five years of both prison
custody and the commission of a new offense resulting in a felony conviction.”
(People v. Tenner (1993) 6 Cal.4th 559, 563; In re Preston (2009) 176 Cal.App.4th 1109,
1115.)
2. The trial court’s order is appealable
Preliminarily, we address the People’s argument that Velasquez’s appeal should
be dismissed for lack of subject matter jurisdiction. They reason as follows. A defendant
may appeal from a postjudgment order only if it affects his or her substantial rights.
(§ 1237, subd. (b).) A postjudgment order implicates a defendant’s substantial rights
only if the court has jurisdiction over the subject matter of the order. (See People v.
Turrin (2009) 176 Cal.App.4th 1200, 1208; People v. Chlad (1992) 6 Cal.App.4th 1719,
1726; People v. Roe (1983) 148 Cal.App.3d 112, 118.) Generally, a court lacks
jurisdiction to resentence a defendant once execution of sentence has begun. (People v.
Howard (1997) 16 Cal.4th 1081, 1089.) Although Proposition 47 provides for
resentencing on eligible crimes, it does not authorize a petitioner to seek resentencing in
regard to enhancements. Instead, the People argue, “the only defendants authorized by
Proposition 47 to petition a trial court for resentencing are those who are currently
serving a sentence for one of the offenses that the Act reduced to a misdemeanor.
Because appellant is currently serving a sentence for second degree robbery, which was
not affected by the passage of Proposition 47,” his petition was unauthorized insofar as it
pertained to the enhancement, and the trial court lacked jurisdiction to consider it. Thus
the trial court’s order is not appealable.
As discussed post, we agree that Proposition 47 does not provide for striking
Velasquez’s section 667.5, subdivision (b) enhancement. However, this does not mean
the trial court lacked jurisdiction to consider the issue. A similar contention was rejected
by our Supreme Court in Teal, supra, 60 Cal.4th 595. There, the petitioner had been
convicted of making a criminal threat (§ 422) and sentenced to 25 years to life in prison
pursuant to the “Three Strikes” law. (Teal, supra, at p. 597.) After passage of

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Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or the Reform
Act), he sought resentencing pursuant to Proposition 36’s resentencing provision, section
1170.126. The trial court denied the petition because making criminal threats was a
serious felony, and the petitioner therefore failed to meet section 1170.126’s threshold
eligibility requirements. (Teal, at p. 597.) The appellate court held the order was not
appealable because inmates had no right to have the trial court consider whether they
should be resentenced unless they met the statutory eligibility requirements. (Ibid.)
Our Supreme Court disagreed with the appellate court. A judgment or order is not
appealable unless expressly made so by statute, and Proposition 36 was silent on the
appealability question. (Teal, supra, 60 Cal.4th at p. 598.) Section 1170.126 stated that
it was intended to apply exclusively to persons who would not have been sentenced to a
third strike term under Proposition 36. The statute further stated that persons serving a
third strike sentence for a felony or felonies not defined as serious or violent “may file a
petition for a recall of sentence. . . .’ ” (Teal, supra, at pp. 598-599, italics omitted.)
Based on this statutory language, the Attorney General argued: “the above provisions
establish a threshold eligibility requirement that determines an inmate’s standing to file a
petition as well as the trial court’s jurisdiction. [The Attorney General] reasons that
because petitioner’s current offense is presently defined as ‘ “serious” ’ under subdivision
(c) of section 1192.7, he had no statutory right or standing to file a petition for recall of
sentence. Therefore, the trial court’s denial order did not affect his substantial rights and
is not appealable under section 1237. [The Attorney General] further argues that because
a trial court has no statutory authority to initiate recall proceedings or consider a
defendant’s eligibility for relief on its own motion, it lacks jurisdiction to decide issues
beyond the threshold eligibility determination when a petitioner fails to meet those
eligibility requirements.” (Teal, supra, at p. 599, italics added.)
The Supreme Court disagreed with the Attorney General’s contentions. The
petitioner had standing to file the petition and to have the trial court consider his
eligibility claim on the merits. (Teal, supra, 60 Cal.4th at p. 599.) His timely petition

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alleged a justiciable controversy affecting concrete interests, in that he claimed he was
eligible for resentencing. (Ibid.) The “trial court’s authority or discretion to determine
the merits of petitioner’s claim was not predicated on his eligibility to file a petition in the
first instance.” (Id. at pp. 599-600.) Section 1170.126, subdivision (f) required that upon
receipt of a petition for resentencing, the trial court was required to determine the
petitioner’s eligibility. (Teal, at p. 600.) The trial court’s ineligibility finding “provided
a basis to deny the petition,” but “did not affect petitioner’s standing to file the petition in
the first instance.” (Ibid.)
Teal explained that the Attorney General’s contrary argument “confuse[d] the
issues on the merits with the procedural question of appealability.” (Teal, supra,
60 Cal.4th at p. 601.) The argument was “premised on the correctness of the trial court’s
ineligibility finding. . . . However, a postjudgment order ‘affecting the substantial rights
of the party’ (§ 1237, subd. (b)) does not turn on whether that party’s claim is
meritorious, but instead on the nature of the claim and the court’s ruling thereto.
[Citations.] Section 1170.126 creates a substantial right to be resentenced and provides a
remedy by way of a statutory postjudgment motion. A denial of a section 1170.126
petition, foreclosing a reduced sentence, would certainly ‘affect[] the substantial rights of
the party.’ (§ 1237, subd. (b), italics added.)” (Id. at pp. 600-601, fns. omitted.) “The
test of appealability under section 1237, subdivision (b), does not depend on the
resolution of ‘an issue to be determined on the merits.’ [Citation.]” (Id. at p. 601.)
The same is true here. Velasquez’s petition alleged a justiciable controversy
affecting concrete interests, in that he claimed he was eligible for resentencing. Section
1170.18, subdivision (b), like section 1170.126, subdivision (f), requires that upon
receiving a Proposition 47 petition for resentencing the trial court “shall determine
whether the petitioner satisfies” the statutory criteria. Section 1170.18, like section
1170.126, creates a substantial right to resentencing, and provides a remedy by way of a
statutory postjudgment motion. (See Teal, supra, 60 Cal.4th at pp. 600-601.) Denial of a
reduced sentence certainly affects Velasquez’s substantial rights. (Id. at p. 601.)

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Velasquez is not eligible for the resentencing he seeks. But just as in Teal, the fact that
the petition lacks merit does not defeat jurisdiction. The People’s contrary argument
inappropriately confuses the issues on the merits with the procedural questions of
appealability and jurisdiction. (See Teal, supra, at p. 601.)
We turn, then, to the merits of Velasquez’s appeal.
3. Standard of review and principles of statutory interpretation
Application of Proposition 47 on the facts presented here is a pure question of law
that we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Camp
(2015) 233 Cal.App.4th 461, 467.) When interpreting a voter initiative, our task is to
ascertain and effectuate the voters’ intent. (People v. Park (2013) 56 Cal.4th 782, 796;
People v. Briceno (2004) 34 Cal.4th 451, 459.) We apply the same principles that govern
interpretation of a statute enacted by the Legislature. Thus, we look first to the language
of the statute, giving the words their ordinary meaning. (People v. Park, supra, at p. 796;
People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) If not ambiguous, the
plain meaning of the statutory language controls, unless it would lead to absurd results
the electorate could not have intended. (People v. Birkett (1999) 21 Cal.4th 226, 231;
People v. Bush (2016) 245 Cal.App.4th 992, 1003.) The statutory language must be
construed in the context of the statute as a whole and the overall statutory scheme.
(People v. Brown (2014) 230 Cal.App.4th 1502, 1509; People v. Bush, supra, at p. 1003.)
When the statutory language is ambiguous, we refer to other indicia of the voters’ intent,
particularly the analyses and arguments contained in the official ballot pamphlet.
(People v. Superior Court (Pearson), supra, at p. 571; People v. Shabazz (2015)
237 Cal.App.4th 303, 313.)
4. Redesignation of an offense as a misdemeanor under Proposition 47 does not
retroactively alter the designation of that crime for purposes of imposition of an
enhancement imposed before the redesignation
Velasquez argues that a section 667.5, subdivision (b) enhancement may not be
imposed unless the defendant has suffered a prior felony. Because his prior felony was

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redesignated a misdemeanor, the enhancement is no longer based on a “presently valid
felony conviction.” He insists the enhancement is therefore unauthorized and must be
stricken. We disagree.
Our California Supreme Court is currently considering whether a defendant is
eligible for resentencing on a section 667.5, subdivision (b) enhancement after the
underlying felony is reclassified as a misdemeanor pursuant to Proposition 47. (People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; see
also, e.g., People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016,
S233539; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016,
S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016,
S233011.)7
The trial court did not err. By its plain terms, Proposition 47 does not provide a
mechanism for striking enhancements retroactively. (People v. Jones (2016)
1 Cal.App.5th 221, 224-225, review granted Sept. 14, 2016, S235901.) Section 1170.18,
subdivision (a) provides that a person currently serving a sentence for a conviction of a
felony or felonies, who “would have been guilty of a misdemeanor under the act that
added this section . . . 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.” Velasquez is not
currently serving a sentence for any of the offenses that were reduced to misdemeanors
7 The parties cite these and other cases in which review was granted after their
respective briefs were filed. (People v. Buycks (2015) 241 Cal.App.4th 519, review
granted Jan. 20, 2016, S231765; People v. Florez (2016) 245 Cal.App.4th 1176, review
granted June 8, 2016, S234168.) Because review was granted in these cases prior to the
effective date of California Rules of Court, rule 8.1105(e)(1)(B), they may no longer be
cited and we do not discuss them.

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by Proposition 47. His current crime is robbery, which is not among the enumerated
offenses eligible for resentencing under Proposition 47.
Section 1170.18 also provides that a person who has completed his sentence for a
felony or felonies who would have been guilty of a misdemeanor under Proposition 47,
had it been in effect at the time of the offense, may apply to “have the felony conviction
or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) Velasquez has
already received the relief to which he is entitled under subdivision (f), in that his 1997
conviction was redesignated as a misdemeanor. Neither subdivisions (a) nor (f) of
section 1170.18 provide for resentencing, striking, or dismissing sentence enhancements.
Section 1170.18 refers only to resentencing and redesignation of convictions, not
enhancements. (People v. Jones, supra, 1 Cal.App.5th at p. 228.) An enhancement is not
a felony or a misdemeanor; it is an additional term of imprisonment, imposed due to the
defendant’s criminal history or circumstances involved in commission of the crime. (See
People v. Jefferson (1999) 21 Cal.4th 86, 101; Cal. Rules of Court, rule 4.405.) Neither
the Proposition 47 ballot materials nor section 1170.18 mention recidivist enhancements,
and Proposition 47 did not amend section 667.5. Proposition 47 did not provide a
procedure for resentencing on an ineligible felony simply because an offense underlying
an enhancement was affected. “It follows that nothing in the language of section 1170.18
allows or even contemplates the retroactive redesignation, dismissal, or striking of
sentence enhancements imposed in a final judgment entered before Proposition 47
passed, even where the offender succeeds in having the underlying conviction itself
deemed a misdemeanor.” (People v. Jones, at p. 229.) To the contrary, the statement in
section 1170.18, subdivision (n), that “Nothing in this and related sections is intended to
diminish or abrogate the finality of judgments in any case not falling within the purview
of this act,” suggests the resentencing and redesignation mechanisms in section 1170.18,
subdivisions (a) and (f) are the only avenues of relief available.
Velasquez argues that the unambiguous language of section 1170.18, subdivision
(k), which states that any felony conviction that is recalled and resentenced or designated

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as a misdemeanor “shall be considered a misdemeanor for all purposes,” supports his
position. He urges one such “purpose” is the use of a redesignated offense as the basis
for imposition of a sentence enhancement. In his view, therefore, the plain language of
the statute requires that once a prior conviction is designated a misdemeanor,
enhancements based upon the prior’s felony status are no longer valid.
But Proposition 47’s “misdemeanor for all purposes” language tracks that used in
section 17, subdivision (b), pertaining to the effect of a judicial declaration that a wobbler
is to be considered a misdemeanor. (§ 17, subd. (b)(3);8 People v. Abdallah, supra,
246 Cal.App.4th at p. 745; People v. Rivera, supra, 233 Cal.App.4th at pp. 1094, 1100.)
In construing the “misdemeanor for all purposes” language in section 17, subdivision (b),
our Supreme Court has “stated that the reduction of the offense to a misdemeanor does
not apply retroactively.” (People v. Rivera, supra, at p. 1100.) “If ultimately a
misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but
not retroactively . . . .” (People v. Feyrer (2010) 48 Cal.4th 426, 439; see People v.
Moomey (2011) 194 Cal.App.4th 850, 857.)
People v. Park illustrates this principle. There, the defendant was convicted of a
felony in 2003. The trial court suspended imposition of sentence and placed him on
probation. In 2006 the court reduced the conviction to a misdemeanor pursuant to section
17, subdivision (b)(3). (People v. Park, supra, 56 Cal.4th at p. 787.) When the defendant
was convicted in 2007 of a new felony, the court imposed a five-year serious felony
enhancement pursuant to section 667, subdivision (a), predicated on the 2003 felony
conviction. (People v. Park, supra, at pp. 787-788.) Construing section 17’s
8 Section 17 provides in pertinent part: “(b) 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: [¶] . . . [¶] (3) 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.”

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“misdemeanor for all purposes” language, Park concluded that “when a wobbler is
reduced to a misdemeanor in accordance with the statutory procedures, the offense
thereafter is deemed a ‘misdemeanor for all purposes,’ except when the Legislature has
specifically directed otherwise.” (Park, supra, at p. 795, italics added.) Accordingly,
“when a wobbler has been reduced to a misdemeanor the prior conviction does not
constitute a prior felony conviction within the meaning of section 667(a).” (Id. at p. 799.)
Significant to our analysis here, Park recognized that “until the court actually exercises
its discretion to reduce a wobbler to a misdemeanor under section 17(b), the offense is
deemed a felony for all purposes.” (Id. at p. 800.) The court explained: “There is 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.” (Id. at p. 802, italics added.)
Proposition 47 and section 17, subdivision (b) both pertain to the effect of
redesignation of an offense as a misdemeanor. (People v. Abdallah, supra,
246 Cal.App.4th at p. 745.) Because identical language appearing in separate statutory
provisions should be interpreted the same way when the provisions cover analogous
subject matter (People v. Rivera, supra, 233 Cal.App.4th at p. 1100; People v. Abdallah,
supra, at p. 745), we presume the voters intended the same construction in section
1170.18, subdivision (k). Velasquez’s prior offense was not designated a misdemeanor
until after sentence had been imposed on his current crime, and therefore the language in
subdivision (k) does not preclude imposition of the enhancement.9
9 People v. Abdallah held that in light of section 1170.18, subdivision (k),
“where . . . a prior conviction is no longer a felony at the time the 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.” (People v. Abdallah, supra, 246 Cal.App.4th at p. 747, italics
added.) As noted, here the offense upon which the section 667.5 enhancement was
predicated was not redesignated until after sentence was imposed on the current crime,
and Abdallah is not inconsistent with our analysis. We express no opinion on whether
section 1170.18, subdivision (k) precludes a sentencing court from imposing a section

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Velasquez also argues that the rule of In re Estrada (1965) 63 Cal.2d 740
(Estrada) applies to require retroactive application of Proposition 47. Again, we
disagree. Penal statutes are not given retroactive effect unless a contrary legislative intent
is apparent. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 319.) Section 3 “erects a
strong presumption of prospective operation” and codifies “ ‘the time-honored
principle . . . that in the absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic sources that the Legislature . . .
must have intended a retroactive application.’ ” (People v. Brown, supra, at pp. 319,
324.) A statute that is ambiguous with respect to retroactive application is construed to
be unambiguously prospective. (Id. at p. 324.)
Estrada established an exception to this general rule. (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1195, disapproved on another point in People v. Rangel (2016)
62 Cal.4th 1192, 1216.) Estrada held: “When the Legislature amends a statute so as to
lessen the punishment it has obviously expressly determined that its former penalty was
too severe and that a lighter punishment is proper as punishment for the commission of
the prohibited act. It is an inevitable inference 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. The amendatory act
imposing the lighter punishment can be applied constitutionally to acts committed before
its passage provided the judgment convicting the defendant of the act is not final.”
(Estrada, supra, 63 Cal.2d at p. 745.) Estrada is “ ‘properly understood, not as
weakening or modifying the default rule of prospective operation codified in section 3,
but rather as informing the rule’s application in a specific context by articulating the
reasonable presumption that a legislative act mitigating the punishment for a particular
criminal offense is intended to apply to all nonfinal judgments. [Citation.]’ [Citation.]”
(People v. Hajek and Vo, supra, at p. 1196.)
667.5, subdivision (b) enhancement when the underlying felony is designated a
misdemeanor before commission of and sentencing on the current crimes.

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But Estrada is of no help to Velasquez here for at least two reasons. First, Estrada
is inapplicable because Velasquez’s convictions in the current and prior cases are final.
(See People v. Diaz, supra, 238 Cal.App.4th at pp. 1335-1336.) Second, our Supreme
Court’s recent decision in People v. Conley (2016) 63 Cal.4th 646 suggests the Estrada
presumption simply does not apply to Proposition 47 resentencing. In Conley, the
defendant was sentenced under the Three Strikes law. While his appeal was pending the
electorate enacted the Reform Act, which, as noted ante, included a resentencing
provision (§ 1170.126) similar to that created by Proposition 47. The defendant argued
that because his judgment was not final when the Reform Act was enacted, he was
entitled to automatic resentencing. (Conley, supra, at pp. 655-656.) Our Supreme Court
disagreed. It reasoned: “The Estrada rule rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only as necessary between
sentences that are final and sentences that are not. [Citation.] In enacting the recall
provision, the voters adopted a different approach. They took the extraordinary step of
extending the retroactive benefits of the [Reform Act] beyond the bounds contemplated
by Estrada—including even prisoners serving final sentences within the Act’s
ameliorative reach—but subject to a special procedural mechanism for the recall of
sentences already imposed. In prescribing the scope and manner of the Act’s retroactive
application, the voters did not distinguish between final and nonfinal sentences, as
Estrada would presume, but instead drew the relevant line between prisoners ‘presently
serving’ indeterminate life terms—whether final or not—and defendants yet to be
sentenced.” (Id. at pp.657-658.) The nature of the recall mechanism “call[ed] into
question the central premise underlying the Estrada presumption . . . .” (Id. at p. 658.)
“Where, as here, the enacting body creates a special mechanism for application of the
new lesser punishment to persons who have previously been sentenced, and where the
body expressly makes retroactive application of the lesser punishment contingent on a
court’s evaluation of the defendant’s dangerousness, we can no longer say with

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confidence, as we did in Estrada, that the enacting body lacked any discernible reason to
limit application of the law with respect to cases pending on direct review.” (Id. at
pp. 658-659.) Conley’s reasoning suggests that the Estrada principle has no application
here.
Velasquez next urges that Proposition 47 was designed to ensure prison spending
is focused on violent and serious offenders, with the cost savings generated thereby
invested into prevention and support programs. He reasons that interpreting section
1170.18 to prohibit section 667.5, subdivision (b) sentence enhancements based on
crimes made misdemeanors by Proposition 47 would promote the statute’s purpose and
intent. But where the statutory language is plain and unambiguous, as is the case with
section 1170.18, “there is no need for construction and the judiciary should not indulge in
it.” (People v. Massicot (2002) 97 Cal.App.4th 920, 925; People v. Jones, supra,
1 Cal.App.5th at p. 227; People v. Vasquez (2016) 247 Cal.App.4th 513, 519.) In any
event, giving redesignations retroactive effect in regard to section 667.5, subdivision (b)
enhancements would require a court to resentence on any offense – including violent
crimes – if an enhancement is predicated on a redesignated offense. This would undercut
the electorate’s intent that persons convicted of crimes such as murder, rape, and child
molestation not benefit from Proposition 47. (See Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 3, subd. (1), p. 70.)
Velasquez cursorily argues that Proposition 47 “specifically stated the one and
only purpose that would not be applied . . . possessing a firearm. [Citation.] If any other
purposes were intended not to apply, they too would have been listed.” (Italics omitted.)
Presumably, Velasquez intends to invoke the canon of statutory construction expressio
unius est exclusio alterius. But the fact that the electorate excepted firearm ownership
from the “misdemeanor for all purposes” language does not clearly imply it intended to
allow the retroactive collateral consequences Velasquez advocates. A limitation on how
the statute applies is not an indicator the electorate intended section 1170.18 to be free of
temporal limitations.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
LAVIN, J.

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