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ARTICLES SAMPLES SUPERIOR COURT FORMS PROP. 47 CASES PROP. 47 ISSUES

CCAP Prop. 47 Case Summaries

The following is a compilation of CCAP summaries of Proposition 47 cases decided by the California courts. All cases should be thoroughly cite checked; cases may have been depublished, amended, or overruled, or the California Supreme Court may have granted review, since posting.

Pending Prop. 47 Issues in the California Supreme Court

What is the value of an unused stolen debit card for the purpose of distinguishing between misdemeanor and felony receiving stolen property in violation of Penal Code section 496, subdivision (a)? (Caretto v. Superior Court (May 19, 2016, B265256) [nonpub. opn.], review granted 8/10/2016 (S235419).)

For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on? (People v. Franco (2016) 245 Cal.App.4th 679, review granted 6/15/2016 (S233973/B260447).)

Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379 effected by Proposition 47? (People v. Martinez (Dec. 15, 2015, E063107) [nonpub. opn.], review granted 3/23/2016 (S231826).)

(1) Are the People entitled to withdraw from a plea agreement for conviction of a lesser offense and to reinstate any dismissed counts if the defendant files a petition for recall of sentence and reduction of the conviction to a misdemeanor under Proposition 47? (2) If the defendant seeks such relief, are the parties returned to the status quo with no limits on the sentence that can be imposed on the ground that the defendant has repudiated the plea agreement by doing so?
DECIDED 11/10/2016: The People are not entitled to have the plea agreement set aside. (Harris v. Superior Court (2016) __ Cal.5th __ (S231489).)

Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less? (People v. Gonzales (2015) 242 Cal.App.4th 35, review granted 2/17/2016 (S231171/D067544).)

Does Proposition 47 ("the Safe Neighborhoods and Schools Act") apply to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18? (People v. Page (2015) 241 Cal.App.4th 714, review granted 1/27/2016 (S230793/E062760).)

Does Proposition 47 ("the Safe Neighborhoods and Schools Act"), which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), apply to theft of access card information in violation of Penal Code section 484e, subdivision (d)? (People v. Cuen (2015) 241 Cal.App.4th 1227, mod. 242 Cal.App.4th 415a, review granted 1/20/2016 (S231107/G051368), People v. Grayson (2015) 241 Cal.App.4th 454, review granted 1/20/2016 (S231757/B262126), People v. Romanowski (2015) 242 Cal.App.4th 151, review granted 1/20/2016 (S231405/B263164).) The court ordered briefing in Grayson deferred pending decision in Cuen and Romanoswki.

Was defendant eligible for resentencing on the penalty enhancement for committing a new felony while released on bail on a drug offense even though the superior court had reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition 47? (People v. Buycks (2015) 241 Cal.App.4th 519, review granted 1/20/2016 (S231765/B262023).)

The court previously granted review in People v. Eandi (2015) 239 Cal.App.4th 801, review granted 11/18/2015 (S229305/C078257) and People v. Perez (2015) 239 Cal.App.4th 24, review granted 11/18/2015 (S229046/C078169), which present the following issue: Was the defendant eligible for resentencing on a felony conviction for willful failure to appear after release on own recognizance pending trial of a felony drug offense when the superior court reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition 47?

On 2/24/2016, the court ordered briefing in Eandi and Perez deferred pending decision in People v. Buycks (2015) 241 Cal.App.4th 519, review granted 1/20/2016 (S231765/B262023), which presents the following issue: Was defendant eligible for resentencing on the penalty enhancement for committing a new felony while released on bail on a drug offense even though the superior court had reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition 47?

Does the Safe Neighborhood and Schools Act [Proposition 47] (Gen. Elec. (Nov. 4, 2014)), which made specified crimes misdemeanors rather than felonies, apply retroactively to a defendant who was sentenced before the Act's effective date but whose judgment was not final until after that date? (People v. Dehoyos (2015) 238 Cal.App.4th 363, review granted 9/30/2015 (S228230/D065961).)

Can excess custody credits be used to reduce or eliminate the one-year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition 47? (People v. Morales (2015) 238 Cal.App.4th 42, review granted 8/26/2015 (S228030/G051142).)

Does the definition of "unreasonable risk of danger to public safety" (Pen. Code, § 1170.18, subd. (c)) under Proposition 47 ("the Safe Neighborhoods and Schools Act") apply retroactively to resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)? (People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).)

Does the definition of "unreasonable risk of danger to public safety" (Pen. Code, § 1170.18, subd. (c)) under Proposition 47 ("the Safe Neighborhoods and Schools Act") apply to resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)? (People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946).)

Published California Court of Appeal Decisions

People v. Abarca (2016) 2 Cal.App.5th 475 (E063687)
Banks are "commercial establishments" within the meaning of the new shoplifting statute.
Abarca pleaded guilty to second degree burglary (Pen. Code, § 459) based on his entry into a bank to cash a forged $300 check. After Proposition 47 passed in November 2014, Abarca petitioned to reduce his felony to misdemeanor shoplifting (Pen. Code, § 459.5, subd. (a)). The prosecution opposed the motion, claiming a bank was not a "commercial establishment" under the shoplifting statute. The trial court granted the petition. The prosecution appealed. Held: Affirmed. Proposition 47 reduced some theft and drug felonies to misdemeanors for eligible defendants. It created a resentencing procedure whereby defendants may petition to have qualified offenses reduced to misdemeanors (Pen. Code, § 1170.18). It also added the new offense of "shoplifting" to the Penal Code (§ 459.5), which is defined as entering a commercial establishment with the intent to commit larceny while the establishment is open during regular business hours, where the value of the property taken does not exceed $950. The definition of "establishment" is "an institution or place of business." "Commerce" is "the exchange of goods and services." Banks satisfy this definition. This interpretation effectuates the purpose of Proposition 47, which is to reclassify certain nonviolent theft and drug offenses to misdemeanors and thereby reduce the number of incarcerated defendants.

The prosecution forfeited the claim that petitioner entered the bank to commit identity theft because it failed to assert this claim in the trial court. On appeal the prosecution urged reversal because identity theft, not larceny or forgery, was the predicate act for Abarca's burglary conviction. However, the prosecution did not previously raise identity theft in relation to the original conviction, and did not mention it at the plea hearing or at the resentencing proceedings. Any such claim was forfeited.

People v. Stylz (2016) 2 Cal.App.5th 530 (B263072)
Defendant's forcible entry into a public storage unit with the intent to steal property of another when the storage facility was open to the public was not shoplifting (Pen. Code, § 459.5) regardless of the value of the property taken.
Stylz pleaded no contest to second degree burglary based on his forcible entry into a locked storage unit within a larger storage facility with intent to commit larceny. In March 2015, he petitioned to reduce his felony to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18, subds. (a) & (f)). The trial court denied the petition, finding Stylz's offense did not constitute misdemeanor "shoplifting" (Pen. Code, § 459.5). Stylz appealed. Held: Affirmed. In November 2014, Proposition 47 reclassified certain drug and theft felonies as misdemeanors unless the offenses were committed by ineligible defendants. It created a mechanism whereby defendants could petition for reduction of a qualified offense (Pen. Code, § 1170.18). Proposition 47 also added section 459.5, the offense of "shoplifting," which is defined as entering a commercial establishment with the intent to commit larceny when that business is open during regular business hours, where the value of the property taken does not exceed $950. In People v. Garcia (2016) 62 Cal.4th 1116, the court held that a defendant may be convicted of burglary by entering a room within a larger structure with the requisite intent if that room provides a separate and objectively reasonable expectation of protection from intrusion relative to the greater building. Here, the locked storage unit Stylz entered was rented to Foley, a person separate from the commercial entity that owned the storage facility. Stylz did not show that the locked storage unit is a commercial establishment, that Foley rented it to engage in commerce, or that it was open to the public during regular business hours.

People v. Hudson (2016) 2 Cal.App.5th 575 (D068439)
For purposes of shoplifting statute (Pen. Code, § 459.5), a bank qualifies as a "commercial establishment."
Hudson walked into a bank pretending to be someone else and tried to cash a forged check. He ultimately pleaded guilty to second degree burglary, check forgery, and false impersonation. After Proposition 47 passed he filed a petition to reduce the burglary conviction to misdemeanor shoplifting. The trial court denied his petition on the basis that a bank was not a commercial establishment. He appealed. Held: Affirmed on another ground. Proposition 47 reduced a number of felony drug and theft offenses from felonies to misdemeanors. It also created a retroactive mechanism whereby individuals can seek to have old felony convictions for such offenses reduced to misdemeanors. (See Pen. Code, § 1170.18.) Pursuant to Proposition 47, second degree burglary is now misdemeanor "shoplifting" if the defendant (1) entered a commercial establishment, (2) during normal business hours, (3) with the intent to commit larceny, and (4) value of the property taken or intended to be taken is $950 or less. Contrary to the trial court's finding, a bank qualifies as a commercial establishment. Although it is not the prototypical commercial establishment that engages in the sale of goods, a bank does engage in commerce via financial transactions and therefore is unambiguously a commercial establishment. But even if the term "commercial establishment" were ambiguous, it must be interpreted to include a bank in order to give effect to the voter's intent that Proposition 47's provisions be "liberally construed" to reduce nonviolent crimes to misdemeanors. "[E]ntering a bank and attempting to cash a forged check is precisely the type of nonviolent crime encompassed by the Act."

Entering a bank with the intent to cash a forged check qualifies as "larceny" for purposes of new shoplifting statute. Hudson argued that his entry into the bank with the intent to cash a forged check qualified as entering with an intent to commit larceny for purposes of the shoplifting statute. The issue of whether a defendant convicted of second degree burglary for entering a bank to cash forged checks is entitled to resentencing under section 1170.18 on the ground the offense meets the definition of shoplifting under section 459.5 is currently pending in the California Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35, review granted 2/17/2016 (S231171/D067544).) The Court of Appeal here concluded that "[u]ntil our high court resolves this issue, we follow the view that entering a bank with intent to commit theft by false pretenses by cashing a forged check meets the definition of shoplifting under section 459.5."

Trial court properly denied Proposition 47 resentencing petition because petitioner failed to allege that the value of property taken or intended to be taken was $950 or less. Hudson also argued that the trial court erred by relying on a postconviction probation report to determine that the value of the forged check was greater than $950. According to Hudson, resentencing eligibility must be based solely on the record of conviction, the record of conviction in his case was silent as to the value of the forged check, and, when the record of conviction is silent, a court must presume it was for the least offense possible. However, the Court of Appeal did not reach that contention. Instead, it reasoned that Hudson, as the petitioner, bore the burden under Evidence Code 500 of demonstrating his eligibility for resentencing. By failing to present any evidence that the value of the property he intended to take did not exceed $950, he failed to establish his eligibility for resentencing from second degree commercial burglary to shoplifting.

People v. Smith (2016) 248 Cal.App.4th __ (E062858)
CCAP case summary coming soon.

People v. Jones (2016) 248 Cal.App.4th __ (E063745)
CCAP case summary coming soon.

People v. Jefferson (2016) 248 Cal.App.4th __ (E063900)
CCAP case summary coming soon.

People v. Cordova (2016) 248 Cal.App.4th __ (H041050)
CCAP case summary coming soon.

People v. Dunn (2016) 248 Cal.App.4th 518 (H042059)
CCAP case summary coming soon.

People v. Garrett (2016) 248 Cal.App.4th 82 (H041927)
CCAP case summary coming soon.

People v. Maynarich (2016) 248 Cal.App.4th 77 (B263341)
CCAP case summary coming soon.

People v. Montgomery (2016) 247 Cal.App.4th 1385 (G051812)
CCAP case summary coming soon.

People v. Hall (2016) 247 Cal.App.4th 1255 (A145088)
CCAP case summary coming soon.

People v. Zamarripa (2016) 247 Cal.App.4th 1179 (B266850)
Proposition 47 relief is not available where defendant was convicted of a "super strike" offense prior to filing a Proposition 47 petition, even though the "super strike" prior was committed after the offense for which defendant seeks relief.
In August 2015, defendant filed a Proposition 47 petition to reclassify his 1999 felony drug conviction to a misdemeanor. The court denied relief, finding his January 2015 conviction for kidnapping for robbery rendered him ineligible for reclassification. He appealed, claiming that the "super strike" occurred after the drug offense and he was therefore eligible for relief. Held: Affirmed. Proposition 47, enacted by the voters in 2014, reduced certain drug and theft felonies/wobblers to misdemeanors. It also added Penal Code section 1170.18, which provides a procedure whereby qualified defendants may seek to have felonies reduced to misdemeanors. Subdivision (i) of section 1170.18 expressly disqualifies certain offenders who have one or more "super strike" priors (Pen. Code, § 667, subdivision (e)(2)(C)(iv)), or who have a prior conviction for an offense requiring sex offender registration, from resentencing and reclassification. These "super strikes" include kidnapping for robbery. "Prior conviction" for purposes of ineligibility for relief means a disqualifying conviction that occurred prior to the Proposition 47 petition. "Nothing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought."

People v. Acosta (2016) 247 Cal.App.4th 1072 (B263849)
After granting defendant Proposition 47 relief in three separate cases with an aggregate sentence, trial court had authority to reimpose prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) where one felony remained.
At Acosta's sentencing for convictions arising from three different felony cases, the court imposed six one-year prison prior enhancements. The trial court specifically attached the enhancements to Acosta's felony drug possession conviction in one of the cases and dismissed the six prison prior enhancements as to the two other cases involving felony petty theft with a prior and felony resisting arrest, reasoning that the enhancements could only be imposed once to increase the aggregate sentence. Thereafter Proposition 47 passed. Acosta's drug possession and petty theft with a prior convictions were reduced to misdemeanors. At his resentencing, the court imposed the prison priors in the resisting case because it remained a felony. Acosta appealed, arguing that the trial court did not have the authority to resurrect the prison priors that attached to the resisting case because the court had previously dismissed them. Held: Affirmed. The trial court's dismissal of the prison priors was not a true dismissal. It was merely a recognition that the prison priors could only be imposed once to increase the aggregate sentence for all three cases. When Acosta was resentenced "the enhancements did not simply vanish by legal legerdemain. They remained available for sentencing purposes because they had been imposed on the aggregate sentence and were not attached to a particular count or case."

Defendant's prison prior enhancements should not be stricken even though the felony convictions underlying three of them were reduced to misdemeanors pursuant to Proposition 47. Three of Acosta's felony convictions underlying three of the prison priors were also reduced to misdemeanors pursuant to Proposition 47. On appeal, Acosta argued that the trial court erred by refusing to strike those prison prior enhancements. The Court of Appeal disagreed. Although section 1170.18, subdivision (k) states that "Any felony conviction that is . . . designated a misdemeanor . . . shall be considered a misdemeanor for all purposes," Proposition 47 nowhere mentions that this would affect prior prison term enhancements. "Crediting appellant's contention would be a windfall beyond the imagination of the drafters of Proposition 47. We certainly cannot impute such knowledge to the electorate since there is no mention of it in Proposition 47. Indelible erasure of such for all time for subsequent felonies would be an extreme and unreasonable 'gift' to a recidivist."

People v. Vasquez (2016) 247 Cal.App.4th 513 (B264637)
CCAP case summary coming soon.

People v. Curry (2016) 1 Cal.App.5th 1073 (A145922)
Proposition 47 petition to reduce felony to misdemeanor must be filed in the trial court that entered the judgment.
In 2012, Curry pleaded no contest to second degree burglary in Napa County Superior Court and was placed on probation. At the time, Curry was on Postrelease Community Supervision (PRCS) in Alameda County, where she resided. On the probation officer's recommendation, the Napa court transferred Curry's probation supervision to Alameda County (Pen. Code, § 1203.9). On July 2, 2015, Curry's probation was revoked. At that time, she moved the Alameda court to reduce her Napa County burglary to a misdemeanor under Proposition 47. The Alameda Court denied the petition, finding Curry should file it in Napa County. She appealed. Held: Affirmed. Proposition 47 specified a number of theft-related offenses that would be reclassified as misdemeanors unless committed by defendants with disqualifying priors. It established a procedure whereby defendants could petition to have a felony conviction reduced to a misdemeanor (Pen. Code, § 1170.18, subd. (a)). The resentencing petition must be presented to the court that entered the judgment of conviction (Pen. Code, § 1170.18, subds. (a) & (f)). This has the purpose of having the petition decided by the judge with a presumed knowledge of the circumstances of the case. The fact that the case was transferred from Napa to Alameda County does not change the analysis. Penal Code section 1203.9 provides that, subject to certain exceptions, once a probation case is transferred "[i]n all other aspects, . . . the court of the receiving county shall have full jurisdiction over the matter upon transfer." However, Proposition 47 should be construed to effectuate its purpose, "not to conform to the unwritten intent to except section 1203.9 from its operation." Curry must file her petition in Napa County.

People v. Johnson (2016) 1 Cal.App.5th 1255 (D068384)
Petitioning defendant has the burden of proving his initial eligibility for Proposition 47 resentencing.
This is an opinion on rehearing. In August 2013, Johnson pleaded guilty to one count of receiving stolen property (Pen. Code, former § 496, subd. (a)). The factual basis for the plea was his unlawful possession stolen property. In April 2015, Johnson petitioned to reduce the offense to a misdemeanor. The prosecution opposed resentencing because Johnson had failed to show eligibility for relief. Johnson countered that because the record of conviction was silent on the value of the property, the court could find only the least adjudicated offense under the record, which was a misdemeanor. The court denied the petition, finding it was confined to the record of conviction and, based on the record, Johnson failed to prove his eligibility. Johnson appealed. Held: Affirmed. Proposition 47 amended Penal Code section 496, subdivision (a) to provide that if the value of the property does not exceed $950, the offense is punishable as a misdemeanor. It also created a procedure whereby qualified defendants could petition for resentencing. Proposition 47 requires the petitioning defendant to establish initial eligibility for relief, i.e., that if he would have been convicted of a misdemeanor under that initiative (Pen. Code, § 1170.18, subd. (a)). In a Proposition 47 proceeding, the trial court is not limited to considering the record of conviction. Unlike a Proposition 36 proceeding, where the defendant shows eligibility for Three Strikes resentencing based on current and prior convictions, the facts supporting a Proposition 47 petition may not appear on the record. The trial court erred in denying Johnson's petition based on the record of conviction. However, as the record has no evidence of the value of the stolen items, Johnson failed to meet his initial burden of showing eligibility for resentencing. The case is affirmed without prejudice to Johnson refiling his petition with the requisite evidence.

People v. Johnston (2016) 247 Cal.App.4th 252 (C080099)
Proposition 47 does not apply to the offense of unlawfully taking a vehicle (Veh. Code, § 10851).
Johnston filed a Proposition 47 petition to reduce a number of felony drug and theft convictions to misdemeanors. The court reduced his drug possession conviction, but found that a number of other convictions, including one for unlawfully taking a vehicle, were ineligible. Johnston appealed the denial of relief for his unlawful taking a vehicle conviction. Held: Affirmed. Proposition 47 prospectively reduced a number of felony drug and theft offenses to misdemeanors and provides a mechanism for individuals to have old felony convictions for those same offenses retrospectively reduced to misdemeanors. (See Pen. Code, § 1170.18.) It does not, however, apply to the offense of unlawfully taking a vehicle. Proposition 47 specifically lists a number of drug and theft offenses that it applies to, including receiving stolen property, commercial burglary, and drug possession, but it does not list section 10851. When a statute lists several related items but not others, there is a strong inference that the omission of the others was intentional. Furthermore, there is no evidence that the drafters intended Proposition 47 to apply to unlawful taking convictions because none of the ballot materials refer to that offense as being affected. Although Proposition 47 added section 490.2, which provides that theft of property worth $950 or less is a misdemeanor, a violation of section 10851 does not necessarily require a theft, as taking or driving a vehicle without an intent to steal is also proscribed. Although a grand theft conviction under section 487 for stealing a vehicle worth $950 or less is eligible for Proposition 47 relief, equal protection does not require that an unlawful taking conviction be treated similarly. The trial court properly denied relief.

People v. Roach (2016) 247 Cal.App.4th 178 (A144822)
Penal Code section 1170.18 does not prohibit a trial court from imposing the same aggregate term when resentencing a defendant pursuant to Proposition 47.
In September 2014, Roach was sentenced to an aggregate term of four years, four months, for multiple felony offenses in three separate cases. In December 2014 he petitioned for resentencing on two of his offenses pursuant to Proposition 47. The court reduced the offenses to misdemeanors and imposed the same aggregate sentence previously ordered. On appeal Roach alleged the trial court erred in imposing the same aggregate term. Held: Affirmed. Proposition 47 made certain drug possession and property crimes misdemeanors unless committed by certain ineligible defendants. Penal Code section 1170.18 provides a procedure whereby defendants currently serving a felony sentence for an offense that is subject to reduction may petition for resentencing. Nothing in section 1170.18 prohibits a trial court, when resentencing a defendant, from ordering the same aggregate sentence as originally imposed. Even assuming the result Roach urges would better effectuate the voters' intent to reduce prison populations, a reviewing court may not add provisions to a statute. Thus, where a section 1170.18 petition results in reduction of the conviction underlying the principle term to a misdemeanor, the trial court must select a new principle term and, in doing so, may reconsider all sentencing choices.

In re J.C. (2016) 246 Cal.App.4th 1462 (A146103)
Minor whose prior offense was reduced to a misdemeanor under Proposition 47 was not entitled to have the record of her DNA expunged.
In 2012 the minor admitted an allegation of second degree burglary by shoplifting (Pen. Code, §§ 459/460), at that time a felony. After the passage of Proposition 47, the minor petitioned to have her offense reduced to a misdemeanor. She also requested that her DNA record be expunged from the state databank, because she would not have been required to provide the sample as a misdemeanant. The trial court reduced the offense to a misdemeanor but denied the request for expungement. She appealed. Held: Affirmed. California law requires the collection of DNA samples from all persons convicted of felonies (Pen. Code, §§ 295, 296, subd. (a)(1)), adults arrested or charged with a felony (Pen. Code, § 296, subd. (a)(2)(C)), and all sex registrants (Pen. Code, § 296, subd. (a)(3)). Persons convicted solely of a misdemeanor are not required to provide DNA samples unless they are required to register as a sex offender. A request to expunge DNA records may be filed in certain circumstances, such as reversal of a qualifying conviction and dismissal of the charges (Pen. Code, § 299). However, subdivision (f) of Penal Code section 299, provides a list of statutes that do not allow a trial court to order expungement of DNA records when granting relief, such as Penal Code section 17, which authorizes the reduction of a wobbler offense to a misdemeanor. After the filing of the minor's petition, the Legislature enacted Assembly Bill No. 1492, which amended Penal Code section 299, to add section 1170.18 to that list. Therefore, where a trial court reduces a felony to a misdemeanor under Proposition 47, it is not authorized to order the expungement of DNA samples. [Editor's Note: The court stated that contrary authority in Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (holding minor was entitled to expungement of DNA record where offenses were reduced to misdemeanors) was abrogated by AB No. 1492.]

Assembly Bill No. 1492 applies retroactively to the minor's request for expungement of DNA data even though it was enacted after her petition was filed. As a general rule, statutes do not operate retroactively unless the Legislature plainly intends them to do so. However, a statute that merely construes and clarifies, rather than changes, existing law is properly applied to transactions predating its enactment. The provisions of AB No. 1492 prohibit the trial court from expunging DNA records in connection with the granting of a Proposition 47 petition. Because Proposition 47 was ambiguous with respect to expungement of records, the new law "clarifies, rather than changes, the meaning of the relevant provisions of Proposition 47" and therefore applies retroactively to preclude the granting of requests for expungement made prior to its enactment.

People v. Valdez (2016) 246 Cal.App.4th 1410 (G052105)
Proposition 47's definition of "unreasonable risk of danger to public safety" is the appropriate standard to apply in Proposition 36 resentencings.
In 2000, Valdez was given a life Three Strikes sentence for possession of heroin and being a felon in possession of a gun. In 2013, he petitioned for resentencing pursuant to Proposition 36, the Three Strikes Reform Act. The trial court denied the petition, finding Valdez posed an unreasonable risk of danger to the public. Valdez appealed, claiming the definition of "unreasonable risk of danger" contained in Proposition 47 should be applied to Proposition 36 hearings. Held: Reversed. Proposition 36 was enacted by voter initiative in 2014 (Pen. Code, § 1170.126). It revises the Three Strikes law to provide for a life sentence only where the current offense is serious or violent, unless there is a disqualifying factor/offense that is pled and proved, and provides a procedure whereby an eligible defendant may seek resentencing. The trial court may deny resentencing if it finds the petitioner poses an "unreasonable risk of danger to public safety," without defining that standard. Proposition 47, enacted in 2014, reduces certain drug and theft offenses to misdemeanors. It also contains provisions for a defendant to petition for resentencing (Pen. Code, § 1170.18) and allows a court to deny resentencing where it finds the defendant poses an "unreasonable risk of danger to public safety." It states that, as used "throughout this Code" "unreasonable risk of danger" is the risk a defendant will commit a new violent felony (Pen. Code, § 667.5, subd. (e)(2)(c)(iv)). This definition plainly applies to Proposition 36 resentencing hearings. This interpretation is consistent with the voters' intent in passing both Propositions and avoids constitutional concerns regarding vagueness. [Editor's Note: This issue is currently pending in the California Supreme Court. (See People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946), People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).]

By failing to seek a writ of mandate, the prosecution forfeited the argument that petitioner was ineligible for resentencing because he was armed in the commission of the offense. The prosecution opposed Valdez's petition because his conviction for being a felon in possession of a gun meant he was armed in the commission of the offense and therefore ineligible for resentencing. However, the prosecution failed to seek a writ of mandate after the trial court's initial eligibility determination, so forfeited this claim. In any event, the evidence reflected that Valdez was arrested in his home and the weapon was located in a car that he shared with his wife. There was no evidence regarding when or how the gun was placed in the car. The trial court's finding there was insufficient evidence of "ready access" to the weapon to constitute arming was supported by substantial evidence.

Petitioner is not entitled to a jury trial on the issue of dangerousness. Valdez claimed that the trial court's initial eligibility determination is essentially a finding that he is entitled to resentencing. Therefore the trial court's dangerousness determination actually increases his minimum sentence and he is entitled to a jury trial on the issue of dangerousness. However, Valdez was never subject to a longer sentence, as his indeterminate term was already legally imposed in an earlier proceeding. Penal Code section 1170.126 offers the opportunity for defendants serving a Three Strikes life term to seek a sentence reduction. A mere finding of eligibility for resentencing does not accord any relief, presumptive or otherwise, from a defendant's indeterminate term. Thus, the Sixth Amendment right to jury trial is not implicated.

People v. Bradshaw (2016) 246 Cal.App.4th 1251 (F070137)
Although appellant did not file a Proposition 47 resentencing petition, in the interest of judicial economy, on remand the trial court should decide whether to reduce appellant's felony drug offense to a misdemeanor.
When appellant committed his offense, possession of methamphetamine was punishable alternately as either a misdemeanor or a felony (Health & Saf. Code, § 11377, subd. (a)). After appellant was sentenced, but before his case became final, voters approved Proposition 47. Under its provisions, certain felony drug offenses were reduced to misdemeanors, unless the defendant has a prior conviction for a "super strike" or an offense requiring mandatory sex offender registration under Penal Code section 290, subdivision (c). Penal Code section 1170.18, provides a procedure whereby qualified defendants may seek reduction of a qualified felony to a misdemeanor. Here, Bradshaw requested to have his case remanded for Proposition 47 resentencing. Under these circumstances, Courts of Appeal have held that Proposition 47 does not provide for automatic resentencing and have concluded that defendants must file a petition for resentencing under Penal Code section 1170.18 in the trial court. However, because this case will be remanded for a Proposition 36 drug treatment determination, the Court of Appeal deemed appellant to have petitioned for resentencing under section 1170.18, and directed the trial court to consider the request in the interest in judicial economy.

People v. Byron (2016) 246 Cal.App.4th 1009 (B262956)
Requirement of formal arraignment in the superior court within 10 days of arrest for parole violations does not also apply to postrelease community supervision (PRCS) violations.
Two days after Byron's arrest for her tenth PRCS violation, a hearing officer (not the superior court) advised Byron of the PRCS violation charges (testing positive for methamphetamine) and that there was probable cause for her arrest. A petition to revoke PRCS was filed in the superior court and Byron appeared in court with counsel 13 days after her arrest. The trial court ultimately found she violated her PRCS terms and ordered her to serve 140 days in jail. Byron appealed, arguing that her procedural due process rights were violated because she was not arraigned in superior court within 10 days of her arrest or provided a probable cause hearing that complied with Morrissey v. Brewer (1972) 408 U.S. 471. Held: Affirmed. Morrissey outlines the basic due process requirements for parole revocation. In Williams v. Superior Court (2014) 230 Cal.App.4th 636, the court held that parolees must be arraigned within 10 days of an arrest for a parole violation and must receive a Morrissey-compliant probable cause hearing within 15 days of arrest in the superior court. (See also Pen. Code, § 3044.) Although Byron's probable cause hearing two days after her arrest did not occur in the superior court, "there is no requirement that the PRCS revocations and parole revocations use the identical procedure or timeline," as PRCS revocation proceedings are generally more informal than parole revocation proceedings. (See Pen. Code, § 3455.) The requirement for a formal arraignment in superior court within 10 days of arrest does not apply to PRCS violations. Furthermore, Byron did not show that she was prejudiced by the PRCS revocation procedure she actually received.

People v. Abdallah (2016) 246 Cal.App.4th 736 (B262299)
Defendant's successful Proposition 47 petition for 2009 felony offense required application of "washout rule" so that prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) could not be imposed for a 2002 felony offense.
Abdallah was convicted of possession of methamphetamine while armed and other offenses. A prior prison term enhancement was found true based on a 2002 felony conviction that did not washout because he was convicted of another felony in 2009. Prior to sentencing, Proposition 47 passed and Abdallah's felony for the 2009 offense was reduced to a misdemeanor. Nevertheless, the court imposed a one-year prior prison term enhancement for the 2002 conviction. Abdallah appealed. Held: Enhancement stricken. A prior prison term enhancement requires proof the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. The fourth requirement is referred to as the "washout rule." According to the washout rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. After examining relevant case law (see People v. Park (2013) 56 Cal.4th 782), the Court of Appeal concluded that once Abdallah's 2009 felony was reduced to a misdemeanor under Proposition 47 "for all purposes" (Pen. Code, § 1170.18, subd. (k)), the 2002 prison prior washed out because he remained free from the commission of a new felony for over five years.

Prior prison term enhancement may be stricken where 2009 felony offense was reduced to a misdemeanor after conviction, but before sentencing. The People argued that the prior prison term enhancement should not be stricken because the trial court reduced the earlier offense to a misdemeanor pursuant to Proposition 47 after Abdallah had committed and been convicted of the current crime. The court rejected the argument because "the enhancement in this case, section 667.5, subdivision (b), depends on the status of the prior offense at the time of sentencing . . . ." The court concluded that language in People v. Park (2013) 56 Cal.4th 782 that supported the People's argument was inapplicable because it addressed a section 667, subdivision (a) enhancement, which depends on the status of the prior offense at the time of conviction.

People v. Davis (2016) 246 Cal.App.4th 127 (A143916)
Probationers are "serving a sentence" within the meaning of Penal Code section 1170.18, and therefore must file a petition in the trial court for resentencing rather than request retroactive application of Proposition 47 to their conviction.
In 2014, Davis pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377) and received probation. By November 2014, when Davis appeared at a probation revocation hearing, Proposition 47 had passed. He argued that he was ineligible to file a Proposition 47 petition because it applied to persons "currently serving a sentence" (Pen. Code, § 1170.18, subd. (a)), while he was on probation. He asked the trial court to apply the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740, and reduce his conviction to a misdemeanor. His approach to the matter was apparently an effort to avoid subdivision (k) of section 1170.18, which states the ban on gun possession applicable to felons applies to successful Proposition 47 petitioners. The trial court required Davis to file a Proposition 47 petition, which was granted. He appealed. Held: Affirmed. Proposition 47 reduced certain felony drug offenses to misdemeanors. It added Penal Code section 1170.18, which provides a procedure whereby qualified defendants "currently serving a sentence" may petition for resentencing. The meaning of "serving a sentence" in section 1170.18, subdivision (a) is ambiguous, as it could refer to confinement or to punishment generally. However, it appears the electorate viewed "serving a sentence" more broadly than serving a term of confinement. This view promotes the purpose of the law—to apply the ameliorative changes to persons who had already suffered felony convictions for offenses now declared to be misdemeanors. The court concluded that probationers are covered by section 1170.18, subdivision (a) and that there was no basis for applying Estrada in this case.

People v. Florez (2016) 245 Cal.App.4th 1176 (H040327)
New narrower definition of "unreasonable risk of danger" set forth in Proposition 47 does not apply to resentencing under Proposition 36.
Florez also argued that the narrower definition of unreasonable risk of danger set forth in Proposition 47 also applies to resentencing proceedings under Proposition 36. The Court of Appeal disagreed. Among other things, Proposition 47 added section 1170.18, subdivision (c), which provides that, "[a]s used throughout this Code, 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new [super strike]." The only other place where the term "unreasonable risk of danger to public safety" is used in the Penal Code is Proposition 36. The court concluded that this was a drafting error: "if we examine the intent of the electorate in passing Proposition 47, we are compelled to conclude that the word 'Code' in section 1170.18, subdivision (c) was erroneously used in place of the word 'Act' to refer to the Safe Neighborhoods and Schools Act [i.e., Prop. 47]." [Editor's Note: Presiding Justice Rushing dissented, arguing that the plain meaning of "throughout this Code" should control and that the use of the word "Code" was not a drafting error. This issue is currently pending review in the California Supreme Court. (See People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946); see also People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).]

People v. Fedalizo (2016) 246 Cal.App.4th 98 (B263029)
Defendant failed to demonstrate that he was denied his right to self-representation during Proposition 47 proceedings.
Fedalizo represented himself in two cases: an initial case in which he pleaded no contest to second degree burglary, receiving stolen property, and other charges, and a second case for counterfeiting a seal (Pen. Code, § 472), which was committed while he was on probation in the first case. He admitted violating his probation and was sentenced in both cases. After the passage of Proposition 47, he petitioned to have the offenses reduced to misdemeanors. The motion was denied as to the counterfeiting case, which was affirmed in a separate appellate opinion. In the first case, appointed counsel appeared on Fedalizo's behalf. The trial court granted the petition and resentenced him. On appeal, Fedalizo claimed his Sixth Amendment right to be present at the resentencing hearing and right to represent himself were denied. Held: Affirmed. The Sixth Amendment right to counsel is self-executing. The right to self-representation, however, must be clearly and timely asserted, and the defendant must knowingly waive his right to counsel; it may be waived expressly or impliedly through conduct that is inconsistent with the assertion of that right. Prior to the resentencing, a deputy public defender appeared on Fedalizo's behalf and waived his presence. Absent evidence that counsel misrepresented his authority to appear for Fedalizo, it is presumed that counsel obtained his consent to act as his attorney. Further, trial courts have some flexibility in dealing with Proposition 47 petitions, including appointing the public defender and relying on them to make personal contact with the defendant. Because Fedalizo did not show that the deputy public defender acted without his approval, he waived his right to self-representation. [Editor's Note: Justice Segal dissented and would have reversed.]

Defendant did not have the right to be present at the Proposition 47 resentencing hearing. When a defendant files a Proposition 47 petition, the trial court makes an initial, legal determination regarding eligibility for resentencing. Fedalizo was not entitled to be present for the eligibility determination, which was made in open court with no opposition from the prosecution. The trial court then granted the petition and resentenced Fedalizo. Once the petition was granted, the offenses became misdemeanors by operation of law for purposes of resentencing. Under Penal Code section 1193, subdivision (b), judgment in a misdemeanor case may be pronounced in the defendant's absence where his presence is waived and a misdemeanor defendant may appear through counsel (Pen. Code, § 977, subd. (a)), which is what occurred here.

People v. Tidwell (2016) 246 Cal.App.4th 212 (H042335)
Defendant was eligible to petition for Proposition 47 relief even though his felony conviction had already been dismissed pursuant to Penal Code section 1203.4.
In 2009 Tidwell entered guilty pleas in two separate cases to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); one count in each case) and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). The court suspended imposition of sentence and placed Tidwell on probation. In July 2011, Tidwell had successfully completed his probation. He moved to withdraw his guilty plea and dismiss his cases (Pen. Code, § 1203.4). His motion was granted. After the passage of Proposition 47, Tidwell petitioned to have the dismissed felony drug charges reduced to misdemeanors (Pen. Code, § 1170.18, subd. (f)). The court found him ineligible for relief because his convictions had been dismissed. He appealed. Held: Reversed. Penal Code section 1203.4, subdivision (a) provides that a defendant who has met the requirements of his probation may withdraw his plea and enter a plea of not guilty. The court then sets aside the plea and dismisses the information. However, the statutory dismissal Tidwell obtained did not expunge his record or cancel all potential future consequences of his convictions. The relief offered by Proposition 47 applies to qualified defendants who have completed their sentence for a conviction, whether by trial or plea. There is nothing in the statutory implementation of Proposition 47 (Pen. Code, § 1170.18) that excludes felonies that have been dismissed under section 1203.4. Tidwell was entitled to Proposition 47 relief.

People v. Solis (2016) 245 Cal.App.4th 1099 (B262149)
Vehicle Code section 10851 is not an offense that is eligible for reduction under Proposition 47.
In 2012 Solis pleaded guilty to driving or taking an automobile (Veh. Code, § 10851). In January 2015, Solis filed a Proposition 47 petition to reduce her felony conviction to a misdemeanor. The trial court found her conviction not eligible for reduction. Solis appealed. Held: Affirmed. In November 2014, Proposition 47 was passed. It reduced certain felony theft and drug offenses to misdemeanors. It added Penal Code section 1170.18, which provides a mechanism whereby qualified defendants may petition to reduce felony convictions to misdemeanors. It also added section 490.2, which redefines petty theft and reduces the punishment for defendants convicting of "obtaining property by theft" worth $950 or less. Any theft that is not defined as grand theft is petty theft (Pen. Code, § 488). However, a violation of Vehicle Code section 10851 does not require the intent to permanently deprive the owner of possession of his car; the section can be violated by illegally driving or taking a vehicle. It is therefore not a "theft" offense within the meaning of section 490.2 and is not eligible for reduction under 1170.18.

Defendants convicted of violating Vehicle Code section 10851 under a theft theory are nonetheless ineligible for Proposition 47 resentencing. Proposition 47 amended Penal Code section 666, petty theft with a prior, reducing the maximum sentence from three years to one year. Eligible predicates include prior convictions for petty theft, grand theft, auto theft under section 10851 of the Vehicle Code, as well as other offenses. Considering Proposition 47 as a whole, the words "petty theft" and "grand theft" must be given the same meaning in sections eight (adding Pen. Code, § 490.2) and 10 (amending Pen. Code, § 666). The fact that "auto theft" under Vehicle Code section 10851 was included alongside "petty theft" and "grand theft" in section 666, reflects the voters did not consider Vehicle Code section 10851 to be a variety of petty theft, otherwise, there would have been no need to designate it as a separate predicate in section 10 (amending Pen. Code, § 666).

The specific rule of Vehicle Code section 10851 is an exception to the general rule announced in Penal Code section 490.2, subdivision (a). It is settled law that a general provision is controlled by one that is special, and that the latter is treated as an exception to the former. Penal Code section 484 prohibits the felonious taking of personal property, of which cars are but one type. Vehicle Code section 10851 targets car-related offenses, whether driving or taking, specifically. Thus, even if section 10851 may be violated in a way that brings the conduct within Penal Code sections 484 and 490.2, the specific rule announced in section 10851 is an exception to the general rule provided in section 490.2, subdivision (a), and is excluded from Proposition 47 relief.

People v. Bush (2016) 245 Cal.App.4th 992 (E062790)
Conviction for theft from an elder person (Pen. Code, § 368, subd. (d)) is not subject to reduction to misdemeanor under Proposition 47.
Bush pleaded guilty to theft from an elder (Pen. Code, § 368, subd. (d)), receiving stolen property, and other offenses. He admitted a strike prior. After Proposition 47 passed in November 2014, Bush petitioned to reduce these felony convictions to misdemeanors. The court denied the petition, finding Bush ineligible for resentencing. He appealed. Held: Affirmed in part; reversed in part. Proposition 47 reduced certain theft-related felonies to misdemeanors. It added Penal Code section 1170.18, whereby qualified defendants may petition for resentencing of their felony convictions. Penal Code section 368 (theft from an elder) was not amended by Proposition 47, nor is it included in the list of offenses in section 1170.18 as eligible for resentencing. Penal Code section 490.5, which defines grand theft as involving the taking of property with a value greater than $950, does not provide indirect resentencing eligibility for a section 368 offense under section 1170.18. This is because Proposition 47 did not amend section 368 to remove the sentencing court's discretion to treat the offense as either a felony or a misdemeanor. Thus, Bush cannot show that his conduct would have been a misdemeanor had it occurred after the passage of Proposition 47.

The evidence in the record does not support the trial court's denial of resentencing as to defendant's receiving stolen property convictions. The trial court did not specify its reasons for denying resentencing as to Bush's felony receiving stolen property convictions. The record does not contain sufficient evidence to show the convictions involved property worth more than $950. Thus, on remand, Bush's eligibility for resentencing on these counts should be determined.

People v. Myers (2016) 245 Cal.App.4th 794 (C078277)
Definition of "unreasonable risk of danger to public safety" set forth in Proposition 47 does not apply to resentencing assessments under Proposition 36.
Myers was convicted of being a felon in possession of ammunition (former Pen. Code, § 12316, subd. (b)(1)) and other offenses and enhancements. Four strike priors were found true. Myers received a life Three Strikes sentence. In March 2014, Myers petitioned for recall of his sentence under Proposition 36 (Pen. Code, § 1170.126). The prosecution opposed his release, arguing that he posed an unreasonable risk of danger to the public (Pen. Code, § 1170.126, subd. (f)). The trial court denied relief. Myers appealed. Held: Affirmed. Proposition 36 ameliorated the Three Strikes law by requiring the current conviction to be a serious or violent felony before a life Three Strikes sentence could be imposed. In 2014, Proposition 47 was passed, which reduced a number of drug and theft-related felonies to misdemeanors. Both initiatives contain procedures whereby qualified defendants may petition for resentencing; both are designed to preclude relief for sentenced defendants who pose an unreasonable risk of danger to public safety. While Proposition 36 does not specifically define "unreasonable risk of danger," Proposition 47 defines this term as a risk the defendant will commit a "super-strike" (Pen. Code, § 1170.18, subd. (c); see Pen. Code, § 667, subd. (e)(2)(C)(iv)), and states this definition should apply "throughout this Code," which plainly refers to the whole Penal Code. However, this is a drafter's error and must be read as "throughout this act" to avoid illogical and unintended consequences. The court listed a number of factors that supported its conclusion. It further stated that applying Proposition 47's definition of "unreasonable risk of danger" to Proposition 36 assessments would diminish the finality of judgments subject to Proposition 36, contrary to section 1170.18, subdivision (n). [Editor's Note: This issue is currently pending in the California Supreme Court. (See People v. Valencia (2014) 232 Cal.App.4th 514, review granted 2/18/2015 (S223825/F067946), People v. Chaney (2014) 231 Cal.App.4th 1391, review granted 2/18/2015 (S223676/C073949).)]

People v. Valencia (2016) 245 Cal.App.4th 730 (C079394)
Defendant who entered a store and purchased a prepaid phone with counterfeit bills for under $950 was eligible for Proposition 47 relief.
In June 2014, defendant entered an AT&T store and purchased a prepaid phone for $294.74 using counterfeit money. He was arrested and subsequently entered a plea to second degree burglary (Pen. Code, § 459). After Proposition 47 passed in 2014, he petitioned to reduce the burglary conviction to a misdemeanor under the new "shoplifting" statute (Pen. Code, § 459.5). The trial court found him ineligible for relief because his conduct was not shoplifting within the common definition of that term. He appealed. Held: Reversed. The passage of Proposition 47 created Penal Code section 1170.18, which provides a procedure whereby qualified defendants may petition to have certain theft and drug-related felonies reduced to misdemeanors. It also added Penal Code section 459.5, which defines the misdemeanor offense of shoplifting as entering a commercial establishment during regular business hours with the intent to commit larceny, where the property taken or intended to be taken does not exceed $950. Although shoplifting is commonly understood to mean stealing merchandise from a store that is open for business, the definition of shoplifting in section 459.5 is not limited to the common meaning. Instead, it must be considered in conjunction with section 490a, which provides that whenever any law refers to larceny, embezzlement, or stealing, it shall be interpreted as if the word "theft" were substituted therefore. Thus, "section 459.5's use of the term 'larceny' demonstrates an intent to cover all forms of theft committed in a business during regular hours under the rubric of 'shoplifting.'" Based on the circumstances of defendant's offense, he was eligible for Proposition 47 relief.

People v. Franco (2016) 245 Cal.App.4th 679 (B260447)
It is the face value of a forged check that is relevant under Penal Code section 473 (amended by Prop. 47), not the intrinsic value of the instrument itself.
In October 2012, Franco pleaded guilty to forgery (Pen. Code, § 475, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted five prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The court struck four of the five enhancements, suspended execution of a four-year prison term, and placed Franco on probation. When his probation was revoked, Franco made an oral motion to reduce his offenses to misdemeanors, which the court denied. Franco appealed. Held: Affirmed. In November 2014, the voters enacted Proposition 47, which reduced certain drug and theft-related offenses to misdemeanors. It added Penal Code section 1170.18, which provides a procedure whereby qualified defendants may seek resentencing. It also amended the forgery law to reduce that offense to a misdemeanor where the value involved is not more than $950, unless the defendant has suffered one or more disqualifying convictions. A similar amendment was made to receiving stolen property (Pen. Code, § 496, subd. (a)). Franco argued that he was entitled to relief under Proposition 47 because the "value" of the forged check was not the face value of $1,500, but the intrinsic value of the instrument. But in the context of "forgery," the word "value" as used in section 473, subdivision (b), corresponds to the face value of the check, not the negligible value of the instrument itself (distinguishing People v. Cuellar (2008) 165 Cal.App.4th 833). As for Franco's receiving stolen property conviction, there was no indication in the record that he petitioned the court for resentencing on this offense.

People v. Garcia (2016) 245 Cal.App.4th 555 (B260447)
The recall and resentencing provisions of Proposition 47 apply to all qualified defendants with felony dispositions, including probationers.
In June 2013, Garcia was sentenced based on her conviction for felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court suspended imposition of sentence and placed her on probation. In March 2015, Garcia filed a Proposition 47 petition seeking reduction of her offense to a misdemeanor (Pen. Code, § 1170.18, subd. (a)). The trial court denied her petition, finding that she had not yet been sentenced within the meaning of Penal Code section 1170.18. She appealed. Held: Reversed. Pursuant to Proposition 47, a number of drug and theft offenses were reduced from felonies to misdemeanors. It also provides a procedure whereby qualified defendants may ask to have their felony offense reduced to a misdemeanor. (Pen. Code, § 1170.18.) The section applies to a qualified defendant who is "currently serving a sentence for a conviction, whether by trial or plea . . . ." (Pen. Code, § 1170.l8, subd. (a)). In passing Proposition 47, the voters intended to include probationers within the reach of section 1170.18. "Nothing in the text of the initiative, the legislative analysis, or the argument for and against it indicate an intent to distinguish between a prison sentence and felony probation." To interpret the statute otherwise would lead to absurd consequences.

People v. Williams (2016) 245 Cal.App.4th 458 (B264110)
One-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) should not be stricken despite fact the underlying felony was later reduced to a misdemeanor pursuant to Proposition 47.
In 2013, Williams pleaded guilty to grand theft (greater than $950) and admitted a prior strike and two prior prison terms: one for burglary and another for petty theft with a prior. After Proposition 47 passed, the court granted Williams's petition to reduce his petty theft with a prior conviction from a felony to a misdemeanor. Thereafter, Williams filed a motion for resentencing in the grand theft case arguing that the one-year prior prison term enhancement for her petty theft with a prior conviction should be stricken. The court denied her motion. She appealed. Held: Affirmed. Proposition 47 provides two mechanisms for retroactive relief: one providing recall and resentencing for individuals who are currently serving a felony sentence for an offense that is now a misdemeanor under Proposition 47, and another providing "redesignation" of a felony to a misdemeanor for individuals who have completed their sentence. Proposition 47, however, does not contain a procedure for striking a prior prison term enhancement if the felony underlying the enhancement has subsequently been reduced to a misdemeanor. Proposition 47 expressly provides that the two mechanisms are meant to be exhaustive and not illustrative: "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." (Pen. Code, § 1170.18, subd. (n).) The trial court properly denied Williams' motion for resentencing.

The "misdemeanor for all purposes" language in Proposition 47 should be interpreted the same way as the "misdemeanor for all purposes" language in Penal Code section 17, subdivision (b)—prospectively, not retroactively. Although Proposition 47 states that a felony reduced to a misdemeanor shall be a "misdemeanor for all purposes," this does not grant an offense's redesignation as a misdemeanor retroactive effect. The same language is used in section 17, subdivision (b) in discussing the effect of a judicial declaration that a wobbler offense is to be considered a misdemeanor. Courts have interpreted section 17's language as making the offense a misdemeanor from that point forward, but not retroactively. Because "identical language appearing in separate statutory provisions should receive the same interpretation when the statutes cover the same or analogous subject matter" (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6), and because Proposition 47 and section 17 both address the effect to be given the redesignation of a felony as a misdemeanor, a court is obligated to construe the "for all purposes" language in Proposition 47 to have the same meaning as the same language in section 17. The court rejected Williams's argument that the discretionary nature of relief under section 17 distinguishes it from Proposition 47. The court also rejected Williams's arguments that such a construction would thwart the voters' intent and would be inconsistent with the exception to non-retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740.

There is no equal protection violation in refusing to give retroactive effect to the reduction of a felony to a misdemeanor. Williams argued that refusing to give a Proposition 47 redesignation retroactive effect sets up two classes of defendants and treats them differently: (1) those sentenced now, who are able to avoid enhancements based on prior felony or wobbler convictions (because the redesignations they obtain on those prior convictions apply prospectively); and (2) those sentenced in the past, who are unable to avoid enhancements based on prior felony convictions (because the redesignations they obtain on those prior convictions do not apply retroactively). While this is true, "it is well settled that a reduction of sentences only prospectively from the date a new sentencing statute takes effect is not a denial of equal protection." (People v. Floyd (2003) 31 Cal.4th 179, 188-189.)

People v. Chen (2016) 245 Cal.App.4th 322 (B264693)
Defendant's felony second degree burglary conviction was not subject to reduction under Proposition 47 because his conduct did not constitute "shoplifting" under new Penal Code section 459.5.
In January 2012, Chen was charged with perjury in his application for a driver's license (Pen. Code, § 118, subd. (a); count 1) and second degree commercial burglary (Pen. Code, § 459; count 2). The burglary charge alleged Chen entered the Department of Motor Vehicles with the intent to commit larceny and any felony. Chen pled no contest to the burglary. After Proposition 47 passed in November 2014, Chen petitioned for reduction of his burglary conviction to a misdemeanor. The trial court granted his petition. The prosecution appealed. Held: Reversed. Under Penal Code section 459 a person who enters a building with the intent to commit grand or petit larceny or any felony is guilty of burglary. Section 460 provides that entry into a commercial establishment with the requisite intent is second degree burglary. Proposition 47 reduced a number of drug and theft offenses to misdemeanors, but made no changes to sections 459 and 460, except to the extent the new shoplifting section (Pen. Code, § 459.5) applies. "Shoplifting" is defined as the entry into a commercial establishment with the intent to commit larceny while that establishment is open during regular business hours, where the property taken or intended to be taken does not exceed $950. Chen entered the DMV with the intent to commit the felony of perjury, and this conduct does not constitute shoplifting.

People v. Root (2016) 245 Cal.App.4th 353 (D068235)
Defendant's entry into a bank to cash forged checks in amounts less than $950, i.e., to commit theft by false pretenses, was misdemeanor "shoplifting" under newly enacted Penal Code section 459.5.
In 2008, Root was convicted of multiple theft, forgery, and burglary offenses. He filed a Proposition 47 petition in 2015 seeking reduction of his felony convictions to misdemeanors. The trial court granted the petition in part but denied resentencing as to seven burglary convictions, finding they were not "shoplifting" under the newly enacted statute (Pen. Code, § 459.5). Root appealed. Held: Reversed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. It added Penal Code section 1170.18, which provides that a qualified defendant may petition for reduction of certain felonies to misdemeanors. It also added Penal Code section 459.5, a new offense of shoplifting, which is defined as entering a commercial establishment while the business is open to the public, with the intent to commit larceny, where the value of the property taken or intended to be taken does not exceed $950. The term "larceny" as used in the burglary statutes has been interpreted to include all thefts, including theft by false pretenses. In People v. Vargas (2016) 243 Cal.App.4th 1416, the Second District held that theft by false pretenses satisfies the "intent to commit larceny" requirement of section 459.5 because this phrase mirrors the intent element in the general burglary statute (Pen. Code, § 459), which includes theft by false pretenses.

The new shoplifting statute (Pen. Code, § 459.5), is not limited to the theft of merchandise openly displayed for sale in retail stores. The prosecution argued that, in enacting Proposition 47, the voters did not intend the new shoplifting statute to apply outside the context of goods and merchandise openly displayed for sale in retail stores. However, such a restriction is not evident from the plain language of the statute, which is worded substantially similar to the burglary statute (Pen. Code, § 459), the intent for which encompasses all thefts. This finding is consistent with the voters' intent in passing Proposition 47, which was to require misdemeanor punishment for certain nonserious, nonviolent theft and drug offenses.

People v. Bias (2016) 245 Cal.App.4th 302 (E062949)
Defendant's offense of attempting to cash a forged check could not be reduced pursuant to Proposition 47 because it involved identity theft, not larceny.
In September 2012, Bias entered a bank and attempted to cash a forged check for $587.64. He was charged with second degree burglary (Pen. Code, § 459) and check forgery (Pen. Code, § 475, subd. (c)). A prior prison term enhancement and strike prior were alleged. Bias pleaded guilty to the burglary and admitted the priors. He was sentenced to state prison. In November 2014, he filed a Proposition 47 petition for resentencing, which was granted. The prosecution appealed. Held: Reversed. Proposition 47 was passed by the voters in November 2014. It reduced certain drug and theft offenses from felonies to misdemeanors for qualified defendants. It also added Penal Code section 1170.18, which provides a procedure whereby defendants may seek resentencing. Here, the trial court found that Bias's offense fell within the new shoplifting statute (Pen. Code, § 459.5). However, section 459.5 does not redefine burglary; it is limited to entry into a commercial establishment during regular business hours with the intent to commit larceny of property worth $950 or less. Entry with the intent to commit any other felony is still second degree burglary (Pen. Code, § 459). The preliminary hearing transcript revealed that Bias entered a bank and attempted to cash a check bearing the name and identifying information of a company, Innovative Designs, which constitutes identity theft (Pen. Code, § 530.5, subd. (b)). As such, the offense remains a felony second degree burglary.

People v. Rouse (2016) 245 Cal.App.4th 292 (B261503)
When a trial court grants a Proposition 47 petition and vacates the original sentence and restructures it, the defendant has a Sixth Amendment right to counsel at the resentencing hearing.
In November 2014, Rouse was serving a five-year prison term for four offenses, including second degree commercial burglary. He petitioned to have his burglary offense reduced to misdemeanor shoplifting (Pen. Code, § 459.5) pursuant to Proposition 47, and waived his right to be present at the hearing. The trial court granted the petition, vacated the original sentence, and resentenced on all counts such that Rouse still had a five-year term. Rouse was not represented by counsel at the hearing. On appeal, Rouse challenged the denial of counsel at the hearing. Held: Reversed and remanded. The Sixth Amendment guarantees an accused person the right to counsel at all critical stages of a criminal proceeding. A "critical stage" involves an adversarial proceeding, combined with the possibility the defendant will suffer prejudice in some significant way by the absence of counsel. When a sentence is vacated and the case remanded for resentencing, the right to counsel attaches. Here, Rouse passed the initial Proposition 47 eligibility stage. The court found his petition meritorious and vacated the original sentence on multiple offenses and restructured it. This was akin to a plenary sentencing hearing at which Rouse's substantial rights were in jeopardy without representation of counsel. It was therefore a "critical stage" of the criminal proceeding to which the right to counsel attached.

Even if the Sixth Amendment did not require representation by counsel at a Proposition 47 resentencing hearing, it is nonetheless necessary to accord due process. "Due process requires an incarcerated defendant be afforded the right to counsel in various circumstances where the Sixth Amendment does not." Although Rouse waived his right to be present at the hearing, he did not waive his separate right to be represented by counsel.

People v. Descano (2016) 245 Cal.App.4th 175 (A144477)
Proposition 47 does not violate equal protection even though it treats individuals convicted of drug possession crimes more favorably than those convicted of drug cultivation crimes.
Descanso pleaded guilty to felony marijuana cultivation (Health & Saf. Code, § 11358) and was placed on probation for three years. After Proposition 47 passed, he filed a petition to reduce the conviction to a misdemeanor. The trial court denied his petition. Descanso appealed. Held: Affirmed. Proposition 47 reduced a number of drug and theft offenses from felonies to misdemeanors. It also provides mechanisms to reduce old felony convictions for those offenses to misdemeanors. Cultivating marijuana is not among the offenses listed in Proposition 47 and therefore Descanso's felony conviction for that offense is not eligible for reduction to a misdemeanor under Proposition 47. The Court of Appeal disagreed with Descanso's argument that the omission of marijuana cultivation from Proposition 47 violates equal protection because people who cultivate marijuana are similarly situated to people who possess marijuana. Persons convicted of different crimes are not similarly situated for equal protection purposes. "Cultivation requires more than simple possession; it includes planting, harvesting, drying, and processing marijuana . . . . Like manufacturing, it is considered a more serious offense than possession . . . ." (People v. Sharp (2003) 112 Cal.App.4th 1336, 1340.) Although Descano was only cultivating marijuana for personal use, it did not qualify under Proposition 47.

People v. Perry (2016) 244 Cal.App.4th 1251 (B263124)
Prosecution is not entitled to withdraw from plea agreement after trial court grants defendant's Proposition 47 petition and reduces felony to misdemeanor, as plea agreements contemplate changes in the law.
Perry pled no contest to grand theft (Pen. Code, § 497, subd. (c)) and admitted a prior strike. In exchange, the prosecution dismissed robbery charges. After Proposition 47 passed, Perry filed a petition to reduce his felony grand theft conviction to a misdemeanor. The People opposed the petition, arguing that reducing the conviction would violate the terms of the plea agreement and deprive the People of the benefit of its bargain. The People requested that, rather than resentence Perry, the court should instead vacate the plea agreement and reinstate the original charges. The court granted Perry's petition and denied the People's motion. The People appealed. Held: Affirmed. In Harris v. Superior Court (2015) 242 Cal.App.4th 244, review granted 2/24/2016 (S231489/B264839), the court held that the reduction of a plea bargained felony to a misdemeanor pursuant to Proposition 47 deprives the People of the benefit of a bargained-for term, justifying the People's withdrawal from the plea agreement. However, Harris is inconsistent with the general rule articulated in Doe v. Harris (2013) 57 Cal.4th 64, "that plea agreements are deemed to incorporate the reserve power of the state to amend the law . . . ." Furthermore, the plain language of Proposition 47 states that its resentencing provisions apply to convictions that were obtained by trial or plea and that "[u]nder no circumstances may resentencing under [Proposition 47] result in the imposition of a term longer than the original sentence." (Pen. Code, § 1170.18, subds. (a), (e).) Such language is inconsistent with the People's position that they should be allowed to withdraw from the plea and reinstate the robbery charges.

People v. Brown (2016) 244 Cal.App.4th 1170 (E063384)
Proposition 47 applies to felony convictions that are based on negotiated pleas, as plea agreements contemplate changes in the law.
Brown pleaded guilty to felony receiving stolen property (Pen. Code, § 496, subd. (a)). In exchange, the prosecution dismissed two additional counts of felony receiving stolen property and three counts of identity theft (Pen. Code, § 530.5, subd. (a)). The plea provided a stipulated two-year county jail sentence. After the passage of Proposition 47, Brown's petition to have her felony reduced to a misdemeanor was granted. The prosecution appealed, claiming Brown breached her plea agreement. Held: Affirmed. Proposition 47 reduced certain drug and theft offenses from felonies to misdemeanors for qualified defendants. It provides a mechanism for resentencing of certain defendants currently serving a felony term for listed offenses. A conviction for receiving stolen property with a value of $950 or less is now a misdemeanor and a qualified defendant serving a felony term for this offense is eligible for resentencing. Under the plain language of the statute (Pen. Code, § 1170.18, subd. (a)) felony convictions obtained by plea are eligible for resentencing. Nothing in the plea agreement insulated it from changes in the law. "Although the parties and the trial court may not unilaterally alter the terms of a plea bargain, subsequent statutory enactments or amendments adopted by the Legislature or the voters exercising the initiative power may have the effect of altering the terms of the plea bargain." (Disagreeing with the contrary holding in Harris v. Superior Court (2015) 242 Cal.App.4th 244, review granted 2/24/2016 (S231489/B264839).)

The prosecution is not entitled to withdraw from the plea agreement and reinstate dismissed charges where the trial court resentences a felony to a misdemeanor under Proposition 47. The prosecution sought to withdraw from the plea and reinstate the dismissed counts because appellant breached the terms of the plea agreement. Critical to the concept of plea agreements is the idea of reciprocal benefits. "When a defendant gains total relief from his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain." (People v. Collins (1978) 21 Cal.3d 208, 215.) But Proposition 47 merely reduced Brown's sentence; she remains convicted (disagreeing with Harris v. Superior Court (2015) 242 Cal.App.4th 244, review granted 2/24/2016 (S231489/B264839)). Thus, the prosecution is not entitled to withdraw from the plea agreement.

People v. Gonzalez (2016) 244 Cal.App.4th 1058 (E063113)
Defendant's felony grand theft from a person conviction was appropriately reduced to a misdemeanor pursuant to Proposition 47, even though the felony was part of a negotiated plea.
In 2011, defendant pleaded guilty to one count of grand theft from a person (Pen. Code, § 487, subd. (c)) in exchange for the prosecution's dismissal of other felony counts, including robbery (Pen. Code, § 211) and burglary (Pen. Code, § 459). She was granted three years of formal probation with local time. After the passage of Proposition 47, she successfully petitioned to have her conviction reduced to a misdemeanor. The prosecution appealed because appellant was convicted pursuant to a negotiated plea. Held: Affirmed. In 2014, Proposition 47 reduced certain drug and theft offenses to misdemeanors. It provided a resentencing procedure whereby qualified defendants could seek to reduce felony convictions to misdemeanors. New Penal Code section 490.2, subdivision (a) reclassifies section 487, subdivision (c) grand theft convictions involving property valued at $950 or less as misdemeanors. By its plain language, the statute applies whether or not a conviction was obtained via a negotiated plea agreement. The prosecution conceded the amount taken did not exceed $950 and that defendant did not pose an unreasonable risk of danger if resentenced. While a negotiated plea is a form of contract, they are deemed to contemplate not only existing law but the reserve power of the state to amend the law or enact new laws. Here, the voters changed the law for reasons of public policy in a way that was intended to affect sentences like defendant's.

Defendant did not need to prove that, based on the conduct underlying her offense, she would have been convicted of a misdemeanor if tried for the dismissed felony counts. The prosecution challenged the reduction of defendant's felonies to misdemeanors because she failed to show that she would not have been guilty of felony robbery or felony burglary as originally charged. Section 1170.18, subdivision (a) is focused on resentencing offenders for existing but reclassified convictions. It does not provide for reopening dismissed counts or require a defendant to prove she could have avoided conviction of a felony if she went to trial.

Defendant's Proposition 47 petition was not a breach of the plea agreement that entitled the prosecution to withdraw from the plea and reinstate dismissed charges. Proposition 47 does not give the trial court authority to vacate a plea and reopen a case against a defendant who petitions for resentencing (disagreeing with the contrary holding in Harris v. Superior Court (2015) 242 Cal.App.4th 244, review granted 2/24/2016 (S231489/B264839)). The grant of statutory authority in section 1170.18 is narrow and the trial court here correctly recognized the limits of its discretion. Defendant did not challenge her plea or conviction, which remain in place. She simply petitioned for resentencing as allowed by Proposition 47.

People v. Carrea (2016) 244 Cal.App.4th 966 (D068246)
A trial court is not required to strike a prior prison term enhancement in a case that is final where the underlying felony was subsequently redesignated as a misdemeanor under Proposition 47.
In 2012, a jury found Carrea guilty of spousal battery (Pen. Code, § 273.5, subd. (a)). He admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). In April 2015, the trial court granted Carrea's Proposition 47 petition to reduce his prior theft (Pen. Code, § 484) and second degree burglary (Pen. Code, § 459) convictions to misdemeanors. He then petitioned to dismiss one of his prior prison term enhancements based on the reduction in the underlying offenses. The trial court denied the petition. Carrea appealed. Held: Affirmed. Proposition 47 added Penal Code section 1170.18, which provides a procedure whereby a qualified defendant may seek reduction of certain theft and drug felonies to misdemeanors. Under section 1170.18, subdivision (k) a felony that is reduced to a misdemeanor shall be a misdemeanor "for all purposes." Subdivision (n), however, states that "[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act." Thus, section 1170.18 allows relief for two categories of convictions: (1) a felony conviction for which a defendant is currently serving time that would now be a misdemeanor under Proposition 47; and (2) a felony conviction for which a defendant has completed a sentence that would now be a misdemeanor under Proposition 47. The statute applies to convictions of offenses and "does not provide for retroactive redesignation, dismissal, or striking of final pre-Proposition 47 sentence enhancements based on prior convictions that are subsequently reduced from felonies to misdemeanors pursuant to section 1170.18 . . . ."

The provision that any felony reduced to a misdemeanor under Proposition 47 shall be considered a misdemeanor "for all purposes" does not allow retroactive relief from the collateral effects of those former felony convictions. Section 1170.18's language allows only for the redesignation of felony convictions, not sentence enhancements. Subdivision (k)'s language "applies, at most, prospectively to preclude future or nonfinal sentence enhancements based on felony convictions redesignated as misdemeanors under [Proposition 47]." Further, to interpret subdivision (k) to allow for the striking of a sentence enhancement imposed in a pre-Proposition 47 case that is now final would "diminish or abrogate the finality of" the prior judgment "in contravention of section 1170.18, subdivision (n)."

In re Estrada (1965) 63 Cal.2d 740 does not require the striking of a prior prison enhancement that was imposed in a case that was final prior to the effective date of Proposition 47 where the underlying felony offense was later reduced to a misdemeanor. Estrada established an exception to the general rule that no part of the Penal Code is retroactive unless expressly so declared (Pen. Code, § 3). "Where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." The Estrada rule applies in cases that are not yet final on the statute's operative date and, for purposes of this rule, "a judgment is not final so long as courts may provide a remedy on direct review." Here, Carrea's 2013 judgment, in which the prison prior enhancement was imposed, became final in April 2014, before the November 5, 2014 effective date of Proposition 47. As a result, the Estrada rule did not apply.

Denial of defendant's petition to strike his final, pre-Proposition 47 sentence enhancement does not deny equal protection of the law. Carrea argued the trial court's denial of his motion to strike the prison prior enhancement violates equal protection because two similarly situated groups would be subject to different treatment. He argued that defendants who have yet to be sentenced would not receive a prison prior enhancement for an offense that has been reduced from a felony to a misdemeanor under Proposition 47 and that those defendants whose case was final before Proposition 47, would receive such an enhancement. However, "a refusal to apply a statute retroactively does not violate the Fourteenth Amendment." The equal protection clause is not violated where classes of criminal defendants are treated differently based on the effective date of a statute that reduces the punishment for a crime.

People v. Ruff (2016) 244 Cal.App.4th 935 (F068131)
Prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) should not be stricken where the underlying felony is reduced to a misdemeanor pursuant to Proposition 47 while the appeal is pending.
Ruff was convicted of robbery. His sentence included a prior prison term enhancement based on a felony conviction for drug possession (Health & Saf. Code, § 11377, subd. (a)). While Ruff's appeal was pending, Proposition 47 passed and he filed a petition to reduce his section 11377 conviction to a misdemeanor, which the trial court granted. On appeal, Ruff argued that the section 667.5, subdivision (b) enhancement should be stricken in light of the fact it had been subsequently reduced to a misdemeanor "for all purposes" pursuant to Proposition 47. Held: Affirmed. Section 3 provides that no part of the Penal Code is retroactive "unless expressly so declared." In In re Estrada (1965) 63 Cal.2d 740 the court recognized an exception to that general rule: "When the Legislature [or electorate] has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature [or electorate] intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." However, the Court of Appeal concluded Estrada did not apply under the circumstances of this case, reasoning that the voters did not intend for Proposition 47 to apply to recidivist enhancements like prison prior enhancements. The court also distinguished People v. Flores (1979) 92 Cal.App.3d 461 and People v. Park (2013) 56 Cal.4th 782 because in those cases the defendants committed their current offense after the earlier offense was reduced to a misdemeanor. Here, Ruff committed his current offense (robbery) before the earlier offense (drug possession) was reduced to a misdemeanor. The court also rejected Ruff's equal protection challenge.

People v. Triplett (2016) 244 Cal.App.4th 824 (C078492)
Second degree burglary conviction based on felony identity theft may be eligible for reduction to misdemeanor under Proposition 47.
Appellant pleaded guilty to second degree burglary in two cases. In one case, he also pleaded to one count of passing an altered or fictitious check (Pen. Code, § 476). After the November 2014 passage of Proposition 47, appellant petitioned to reduce his offenses to misdemeanors. The prosecution agreed that the fictitious check count was eligible for reduction, but opposed reduction of the burglaries. The agreed upon facts at the hearing reflected that appellant entered a bank and a liquor store to illegally cash checks belonging to another person, which is identity theft. The trial court found neither of the burglary offenses subject to reduction but reduced the fictitious check count. Appellant appealed. Held: Reversed and remanded. Proposition 47 added a new shoplifting statute (Pen. Code, § 459.5) that requires an "intent to commit larceny." Larceny (or theft (Pen. Code, § 490a)) is defined very broadly under section 484, subdivision (a), and includes knowingly defrauding another person of money by any false or fraudulent presentation or pretense. Because appellant's act of passing a bad check qualifies as theft under section 484, subdivision (a), it is shoplifting under the new section 459.5. The court disagreed with People v. Gonzales (2015) 242 Cal.App.4th 35 (affirming the denial of a Prop. 47 petition where the defendant entered a bank with the intent to cash a check taken from his grandmother, finding the consensual taking involved no larceny). The prosecution and defense agreed that the amount at issue in one case was less than $950 and the trial court erred in denying the petition as to this conviction. The case was remanded for reconsideration of the other conviction.

When determining whether a defendant is eligibility for Proposition 47 relief, the trial court is not limited to the record of conviction, but may consider factual stipulations or agreements by the parties. The factual basis for one of appellant's pleas stated that he entered a bank with the intent to commit theft with a fraudulent check. In the other case, he admitted that he entered a liquor store intending to commit theft and that he passed a fraudulent check. At the Proposition 47 hearing, the prosecution opposed reduction of the burglaries, arguing that appellant had entered the bank and the liquor store intending to commit identity theft. Defense counsel accepted the prosecutor's representation of the facts as to one of the cases. On appeal, appellant argued that the trial court erred in considering facts outside the record. The Court of Appeal disagreed. Generally, a trial court must determine the facts regarding a defendant's eligibility for sentence reduction based solely on the record of conviction (citing People v. Bradford (2014) 227 Cal.App.4th 1322 [regarding Prop. 36 eligibility]), because the language of Penal Code section 1170.18 does not provide for the taking of evidence. Here, the Court of Appeal distinguished Bradford and concluded that a trial court determining eligibility for a Proposition 47 sentence modification "is not limited to the record of conviction, but may also consider any factual stipulations or clear agreements by the parties that add to, but do not contradict, the record of conviction." Because the defense expressly accepted the prosecution's representations for one of the cases, the trial court did not err in considering those facts.

People v. Valenzuela (2016) 244 Cal.App.4th 692 (D066907)
In enacting Proposition 47, the voters expressly intended that qualified defendants file a petition or application in the superior court to reduce certain felonies to misdemeanors; the Court of Appeal is not permitted to reduce a conviction.
A jury convicted Valenzuela of three felonies: carjacking, reckless evasion, and possession of methamphetamine. After she filed her notice of appeal, Proposition 47 passed. Among other things, Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the defendant has specified disqualifying offenses. It also sets forth a mechanism for individuals to petition to have felony convictions for those offenses reduced to misdemeanors. On appeal, Valenzuela argued, inter alia, that her felony conviction for possession of methamphetamine should be reduced to a misdemeanor pursuant to In re Estrada (1965) 63 Cal.3d 740. Held: Affirmed. Estrada recognized an exception to the general rule that Penal Code statutes, like Proposition 47, apply prospectively only: a legislative amendment that lessens criminal punishment is presumed to apply to all cases not yet final unless there is a saving clause providing for prospective application. The fact that Proposition 47 specifically requires all defendants who have been sentenced, including those whose judgments are not yet final, to file a petition in the sentencing court (see Pen. Code, § 1170.18), shows "a clear intent not to permit the automatic application of Proposition 47 to anyone currently serving a sentence for a listed offense." Other courts have reached a similar conclusion. (See People v. Shabazz (2015) 237 Cal.App.4th 303; People v. Noyan (2014) 232 Cal.App.4th 657.).) Valenzuela must file a petition in the trial court to reduce her felony methamphetamine possession conviction to a misdemeanor.

One-year prison prior enhancement (Pen. Code, § 667.5, subd. (b)) should not be stricken if the defendant's felony was reduced to a misdemeanor under Proposition 47 after the enhancement was imposed. Valenzuela's sentence was enhanced by one year pursuant to section 667.5, subdivision (b) for a 2012 felony conviction and prison term for receiving stolen property. After Proposition 47 passed, she filed a petition to reduce the receiving stolen property conviction to a misdemeanor. The superior court granted her petition and reduced the conviction to a misdemeanor "for all purposes." (See Pen. Code, § 1170.18, subd. (k).) Relying on People v. Park (2013) 56 Cal.4th 782, 796, and People v. Flores (1979) 92 Cal.App.3d 461, Valenzuela argued that the Court of Appeal should strike the prison prior. The Court of Appeal disagreed. Neither Park nor Flores provides authority for a court to reach back and strike a prison prior enhancement where the prior offense is reduced to a misdemeanor after the defendant has been convicted of and sentenced for a later offense. Rather, these cases hold that a sentence enhancement under section 667.5 is not available when the prior conviction that forms the basis for the enhancement is reduced before the defendant committed and was convicted of the new offense. "Additionally, having served a prior prison term for a felony conviction is the qualifying criterion for the enhancement that Valenzuela received under section 667.5, subdivision (b)" and Proposition 47 does not change this fact. The Court of Appeal also rejected Valenzuela's equal protection argument.

People v. Nichols (2016) 244 Cal.App.4th 681 (H041979)
Proposition 47 does not apply to convictions for buying or receiving a stolen motor vehicle (Pen. Code, § 496d).
Nichols pled no contest to felony buying or receiving a stolen motor vehicle with a prior conviction for vehicle theft and admitted a prior strike. After Proposition 47 passed, Nichols filed a habeas petition that the trial court construed as a Proposition 47 petition for resentencing under section 1170.18, subdivision (a). The trial court denied the petition, reasoning that Proposition 47 does not apply to felony convictions under section 496d. Nichols appealed. Held: Affirmed. Proposition 47 lists a number of theft and drug related offenses that may be reclassified and resentenced as misdemeanors. (See Pen. Code, § 1170.18, subds. (a), (b).) Section 496d is not one of the listed offenses. Applying rules of statutory construction, the court here concluded that section 1170.18 should not be construed to apply to a felony conviction under section 496d. The Court of Appeal also rejected Nichols' equal protection argument, determining that there are multiple rational bases for why the voters would want to punish receipt of a stolen vehicle more severely than receipt of other stolen property or theft of other property with a value under $950.

People v. Garcia (2016) 244 Cal.App.4th 224 (H040765)
The fact that qualified defendants who seek Proposition 36 resentencing are subjected to a risk assessment hearing, while defendants sentenced post-Proposition 36 are not, does not deny equal protection.
In 2002, Garcia pled guilty to grand theft, and admitted prior strikes and prior prison terms, in exchange for dismissal of a robbery count and prior serious felony enhancements. He was given a life Three Strikes sentence. In 2013, he petitioned for Proposition 36 resentencing, supporting his request with expert testimony that he did not pose an unreasonable risk of danger to public safety if released. Based on the court's review of Garcia's criminal history, commitment offense, and poor conduct in prison, it found he remained a public safety risk and denied the petition. Garcia appealed. Held: Affirmed. Proposition 36 amended Penal Code sections 667 and 1170.12 to preclude the imposition of a life Three Strikes sentence unless the current crime is serious or violent, or the prosecution pleads and proves certain factors. It also created a mechanism whereby qualified defendants serving a Three Strikes term may seek resentencing (Pen. Code, § 1170.126). Garcia claimed that defendants sentenced prior to Proposition 36 are similarly situated to defendants sentenced after its passage, and it therefore violates equal protection to subject only the former group of defendants to a risk assessment hearing to qualify for resentencing. A statutory distinction between two groups regarding length of imprisonment is subject to a rational basis review test. With respect to Proposition 36, voters could have concluded that differences between the two groups of defendants warranted a distinction in punishment. There is no equal protection violation (agreeing with People v. Yearwood (2013) 213 Cal.App.4th 161).

Section 1170.126 does not create a presumption that a qualified Three Strikes defendant will be resentenced, nor does the Sixth Amendment apply to Propostion 36 resentencing petitions. Garcia also argued that section 1170.126 creates a strong presumption that an eligible petitioner will be resentenced and that the trial court violated his Sixth Amendment rights by denying him a jury trial. The appellate court disagreed. In People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the Second District Court of Appeal concluded that section 1170.126 does not create a presumption in favor of resentencing. Instead, the "unreasonable risk of danger" determination is a hurtle a defendant must overcome to be eligible for sentence reduction. Thus, for defendants sentenced prior to Proposition 36, a Three Strikes life term remained the statutory maximum for Sixth Amendment purposes. The Court of Appeal here agreed with Kaulick. Penal Code section 1170.126's emphasis on the court's duty to evaluate whether resentencing would pose a danger to public safety reflects that a determination on that issue is a prerequisite to resentencing rather than an issue that may constitute a possible rebuttal of a presumption in favor of resentencing.

The trial court properly imposed the burden of proof on the prosecutor at the risk assessment hearing. Garcia focused on a statement made by the trial court to the effect that Garcia had not done anything to prove to the court that he was not a danger, claiming the court improperly saddled him with the burden of proving the absence of unreasonable risk of danger. However, the totality of the trial court's comments reflect it appropriately recognized that the prosecution had the burden to prove by a preponderance of the evidence any type of contested issue of fact that might be relevant to the question of risk of unreasonable danger.

People v. Perkins (2016) 244 Cal.App.4th 129 (E062878)
Defendant whose Proposition 47 petition was summarily denied for lack of supporting evidence may file a new petition because the rules regarding burden of proof were unsettled when the petition was filed.
Perkins was convicted of numerous offenses, including receiving stolen property and three counts of grand theft of a firearm. After Proposition 47 passed in November 2014, Perkins petitioned to reduce his receiving stolen property offense to a misdemeanor. He attached no evidence regarding the value of the items possessed. The form he used did not provide the option of seeking reduction on the grand theft offenses. The trial court summarily denied the petition, finding the property valued at more than $950. Perkins appealed, challenging the sufficiency of the evidence of value and claiming the court should have considered resentencing on his grand theft convictions. Held: Affirmed. Proposition 47 reduced certain theft and drug felonies to misdemeanors. It provides a mechanism by which qualified defendants may seek to reduce felony convictions to misdemeanors (Pen. Code, § 1170.18). Receipt of stolen property and grand theft offenses are now misdemeanors if the value of the property stolen/possessed does not exceed $950 (Pen. Code, §§ 496, subd. (a), 490.2, subd. (a)). The statute is silent as to who bears the burden of establishing eligibility for sentence reduction. The Court of Appeal here agreed with the holding in People v. Sherow (2015) 239 Cal.App.4th 875, that a Proposition 47 petitioner must establish his eligibility for resentencing with sufficient information to allow the trial court to determine eligibility. When Perkins filed his petition, the ground rules for such filings were unsettled. Therefore, he may renew his petition in the trial court, adding the grand theft counts and providing adequate supporting evidence.

People v. Orozco (2016) 244 Cal.App.4th 65 (D067313)
Unlawfully taking of a vehicle (Veh. Code, § 10851) and receiving a stolen vehicle (Pen. Code, § 496d) are not eligible for reduction to misdemeanors under Proposition 47 (Pen. Code, § 1170.18).
Officers arrested Orozco for driving a stolen car and the police report listed the car's value at $301. Orozco pleaded guilty to unlawfully driving a vehicle without permission (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d). After Proposition 47 passed, he filed a petition to reduce both convictions from felonies to misdemeanors. The trial court denied the petition, reasoning that Proposition 47 did not apply to those offenses. Held: Affirmed. Proposition 47 makes certain theft and drug-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. It also created a new resentencing provision, section 1170.18, which lists a number of crimes that are now eligible for misdemeanor treatment. Unlawful taking of a vehicle and receiving a stolen vehicle are not listed in section 1170.18. As such, their omission must be interpreted as intentional. Orozco's section 10851 conviction also was not eligible for resentencing under section 490.2 (added by Proposition 47), which makes any theft of property valued at $950 or less a misdemeanor. There was no evidence in the record that he had the specific intent required for theft. He pleaded guilty to unlawfully driving a vehicle, not theft of a vehicle. Additionally, although Proposition 47 amended section 496, subdivision (a) to make receiving stolen property valued at $950 or less a misdemeanor, it did not amend sections 496a or 496d, which deal with the receipt of particular types of stolen property. Accordingly, Orozco's petition was properly denied.

People v. Vargas (2016) 243 Cal.App.4th 1416 (B262129)
Second degree burglary based on entry of check cashing store with intent to cash forged check for $950 or less is a misdemeanor under Proposition 47.
Vargas entered a check cashing store and attempted to cash a forged personal check in the amount of $148. She pleaded guilty to second degree burglary and was given a split sentence in county jail. After the passage of Proposition 47, she petitioned for resentencing, arguing that her offense came within the newly enacted offense of shoplifting (Pen. Code, § 459.5). The trial court denied the petition, finding Vargas' conduct did not constitute "shoplifting" because it included the intent to commit fraud in addition to the larceny. Vargas appealed. Held: Reversed. Proposition 47 reduced certain theft and drug offenses to misdemeanors and created a procedure by which qualified defendants who are currently serving a sentence for an eligible offense may seek reduction of their felony offense (Pen. Code, § 1170.18). "As enacted by Proposition 47, section 459.5 redefines certain second degree burglaries as 'shoplifting' if the value of the property involved is less than $950." Shoplifting is defined as entering a commercial establishment while that business is open to the public with the intent to commit larceny, where the value of the property taken or attempted to be taken is not more than $950. Section 459.5 has its roots in burglary, which may be satisfied by the intent to commit theft by false pretenses. "[B]ecause voters adopted the phrase 'intent to commit larceny' in section 459.5, which mirrors the intent element in the general burglary statute (§ 459), and that phrase includes theft by false pretenses," section 459.5 similarly includes theft by false pretenses. The court disagreed with the contrary holding in People v. Gonzales (2015) 242 Cal.App.4th 35.

People v. Ortiz (2016) 243 Cal.App.4th 854 (H042062)
A person convicted of violating Vehicle Code section 10851 who took a vehicle worth $950 or less with the intent to permanently deprive the owner of possession is eligible for resentencing under Proposition 47.
Ortiz pleaded guilty in 2013 to felony vehicle theft after police caught him driving a stolen 1990 Honda Civic. The car's owner had purchased it for $1,000 at some point before Ortiz stole it and sold the car for $300 after it was recovered from Ortiz with damage to the fender, hood, and radiator. After Proposition 47 passed, Ortiz filed a petition to reduce his vehicle theft conviction to a misdemeanor. The trial court denied the petition, reasoning that Proposition 47 did not apply to vehicle theft convictions. Ortiz appealed. Held: Affirmed. Penal Code section 490.2 was added by Proposition 47 and provides that any theft of property where the value of the property does not exceed $950 is a misdemeanor. Section 10851 punishes any person who drives or takes a vehicle without the intent of the owner with intent either to permanently or temporarily deprive the owner of his possession, whether with or without the intent to steal the vehicle. The plain language of section 490.2 unambiguously applies to felony convictions for violations of section 10851 where a vehicle worth $950 or less is taken with the intent to permanently deprive the owner of possession. The Court of Appeal disagreed with People v. Page (2015) 241 Cal.App.4th 714, review granted 1/27/2016 (S230793/E062760) and People v. Haywood (2015) 243 Cal.App.4th 515, which reached the opposite conclusion, and agreed with the reasoning of People v. Gomez (2015) 243 Cal.App.4th 319, rehearing granted 1/11/2016. However, Ortiz did not establish his eligibility for relief because he did not show that the value of the vehicle was $950 or less at the time it was taken. Because the trial court did not afford Ortiz an evidentiary hearing on the issue, the Court of Appeal affirmed the denial of his petition without prejudice.

People v. Thompson (2015) 243 Cal.App.4th 413 (B261625)
Possession of access card information is subject to reduction to a misdemeanor under Proposition 47.
In 2011 Thompson pleaded no contest to grand theft (Pen. Code, § 484e, subd. (d)) and was sentenced to prison. After the passage of Proposition 47 in November 2014, Thompson petitioned to have his felony reduced to a misdemeanor (Pen. Code, § 1170.18). The trial court denied the petition, finding his offense ineligible for reduction. Thompson appealed. Held: Reversed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. It also added Penal Code section 490.2, which provides that, notwithstanding section 487, or any other provision of law defining grand theft, obtaining any property by theft is a misdemeanor where the value of the property taken does not exceed $950. Section 484e, subdivision (d) provides that it is grand theft to acquire or retain another person's access card account information without the account holder's consent with the intent to use it fraudulently. The "grand theft" defined in section 484e, subdivision (d) is subject to reduction based on section 490.2, as its plain language unequivocally expresses the intent that Proposition 47 apply to all Penal Code sections that define "grand theft," not just those theft provisions that are based on value (disagreeing with contrary holdings in People v. Cuen (2015) 241 Cal.App.4th 1227 and People v. Grayson (2015) 241 Cal.App.4th 454.) This is evident from the Proposition 47 official ballot pamphlet which states the measure would limit when theft of property valued at $950 or less could be charged as grand theft and that such offenses would no longer be charged as grand theft simply because of the type of property involved. Further, if it was intended that theft under section 484e, subdivision (d) be excluded from Proposition 47, section 490.2's introductory language would not be so broad.

The value of access card account information was necessarily less than $950 because the intrinsic value of acquiring and retaining access card account information is minimal, unless used. Penal Code section 484g prohibits the use of access cards to defraud and punishes such use as grand theft only when the value of the property illegally acquired exceeds $950 in a six-month period. It therefore resolves the dissonance between sections 484e, subdivision (d) and 484g to include section 484e, subdivision (d) within the coverage of Proposition 47 where the amount taken is $950 or less. "[A]n individual who takes an access card or access card account information and uses it to purchase property that exceeds $950 can still be punished for grand theft under section 484g." Here, Thompson's use of the access card involved less than $950 and was therefore a misdemeanor (disagreeing with the "black market" valuation method enunciated in People v. Romanowski (2015) 242 Cal.App.4th. 151). [Editor's Note: After this case was decided, the California Supreme Court granted review in Cuen (S231107), Grayson (S231757), and Romanowski (S231405) on 1/20/2016.]

People v. Marks (2015) 243 Cal.App.4th 331 (E063516)
Proposition 47 petition to strike a prior prison term must be filed in the court where the underlying conviction occurred, not in the court that imposed the prior prison term as an enhancement.
In 2012, Marks pleaded guilty to spousal battery and misdemeanor criminal threats. He admitted six prior prison term enhancements, three of which were based on convictions for violating Health and Safety Code section 11350, subdivision (a). Initially granted probation, Marks was sentenced to state prison when probation was revoked. In December 2014 he filed a Proposition 47 petition, arguing his section 11350 convictions should be reduced to misdemeanors. The trial court denied the petition because Marks' current conviction is not a qualifying felony. He appealed. Held: Affirmed. Proposition 47 reduced certain drug and theft offenses to misdemeanors for qualified defendants. It added Penal Code section 1170.18, which creates a procedure for qualified defendants serving a felony sentence on an enumerated offense to petition for resentencing. A person who has completed his sentence for a conviction may petition the court that entered the judgment in his case to have the felony declared a misdemeanor (Pen. Code, § 1170.18, subd. (f)). Here, Marks' petition bore only the case number for the current case; it did not identify the case numbers for the convictions underlying the prior prison term enhancements. Proposition 47 provides no mechanism for reclassification of prior offenses as misdemeanors via a petition in the current case. Marks must file his petition before the court that entered the judgment of conviction for the prior section 11350 offenses.

In re J.L. (2015) 242 Cal.App.4th 1108 (B261634)
Theft of a cell phone from a school locker does not qualify as shoplifting (Pen. Code, § 459.5, added by Prop. 47).
While at school, J.L. and another student picked a lock on a third student's locker using a paperclip and took a cell phone they found inside. J.L. admitted a burglary (Pen. Code, § 459) allegation in a juvenile delinquency petition. The juvenile court declared the burglary to be a felony and placed J.L. on probation. After Proposition 47 passed, J.L. filed a petition to reduce his burglary offense to misdemeanor shoplifting. The court denied his petition, reasoning that shoplifting required a theft from a commercial establishment and a school was not a commercial establishment. J.L. appealed. Held: Affirmed. Proposition 47 created the new offense of misdemeanor shoplifting, which is defined as entering a commercial establishment with the intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed $950. (Pen. Code, § 459.5.) Under Proposition 47, a defendant can petition to reduce his felony burglary conviction to misdemeanor shoplifting provided it would have been misdemeanor shoplifting had Proposition 47 been in existence at the time he committed the offense. (Pen. Code, § 1170.18.) J.L.'s burglary conviction does not meet the criteria for shoplifting because a public high school is not a commercial establishment. Section 459.5 does not define "commercial establishment," but "[g]iving the term its commonsense meaning, commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services." That understanding accords with the dictionary definitions and other legal sources. A public high school is not an establishment primarily engaged in the sale of goods and services; rather, it is an establishment dedicated to the education of students.

People v. King (2015) 242 Cal.App.4th 1312 (B261784)
Possession of access card information is not subject to reduction to a misdemeanor under Proposition 47 regardless of the amount fraudulently taken.
In June 2014, King pleaded no contest to a grand theft violation of Penal Code section 484e, subdivision (d). Preliminary hearing testimony revealed that King attempted to purchase an iPad (valued at less than $700) with someone else's credit card. Following the passage of Proposition 47 in November 2014, King petitioned to have his felony reduced to a misdemeanor. (See Pen. Code, § 1170.18.) The trial court found his offense did not qualify for reduction and denied the request. King appealed. Held: Affirmed. Penal Code section 484e, subdivision (d) provides that it is grand theft to acquire or retain another person's access card account information without the account holder's consent, with the intent to use it fraudulently. Penal Code section 490.2, which was added by Proposition 47, states that notwithstanding section 487 or any other provision of law defining grand theft, obtaining any property by theft where the property taken does not exceed $950 is to be punished as a misdemeanor, i.e., it defines petty theft according to the value of the items taken. However, the taking of items of a particular value is not an element of section 484e, subdivision (d). The conduct described in section 484e, subdivision (d) is grand theft to which section 490.2 does not apply (disagreeing with the contrary holding in People v. Romanowski (2015) 242 Cal.App.4th. 151).

People v. Amaya (2015) 242 Cal.App.4th 972 (B261189)
Proposition 47 petition for resentencing can be made orally.
Amaya pleaded no contest to six counts of second degree commercial burglary. According to a probation report, Amaya admitted going into six different party supply stores and renting tables and chairs without any intention of returning them. Five of the six cases involved losses totaling less than $950. The court placed Amaya on probation. In December 2014, Amaya admitted a second probation violation and was reinstated on probation. At the hearing, Amaya made an oral motion to reduce "this" to a misdemeanor under Proposition 47. The trial court denied the motion. Amaya appealed. Held: Reversed and remanded. On appeal, the People argued that the trial court properly denied Amaya's petition because it was made orally rather than in writing. Proposition 47 permits individuals currently serving a sentence for a felony conviction that would have been a misdemeanor if Proposition 47 had been in effect at the time of the offense to petition for recall of sentence before the trial court that entered the judgment of conviction. (Pen. Code, § 1170.18, subd. (a).) The Court of Appeal reasoned that Amaya's oral motion qualified as a petition. Although other statutes contain express language requiring a written petition (see Pen. Code, §§ 851.8 [petition for destruction of arrest records must be served], 1474 [petition for writ of habeas corpus must be signed]; 4852.01 [petition for certificate of rehabilitation must be filed]), there is no such language in Proposition 47. The People failed to show that the word "petition" necessarily means "written petition." Because five of Amaya's six second degree commercial burglary convictions qualified for reduction to misdemeanors under Proposition 47, the court reversed and remanded to the trial court with directions to issue a new order changing the convictions to misdemeanor shoplifting (Pen. Code, § 459.5).

People v. Acosta (2015) 242 Cal.App.4th 521 (B261828)
The offense of felony attempted auto burglary (Pen. Code, §§ 664, 459) is not subject to reduction to a misdemeanor under Proposition 47.
In 2014, appellant filed a petition seeking reduction of his felony attempted auto burglary to a misdemeanor under Proposition 47. It was denied and he appealed. Held: Affirmed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. Penal Code section 1170.18, which lists the offenses that may be reduced to misdemeanors, does not include car burglary or its attempt. Penal Code section 490.2, which was enacted as part of Proposition 47, makes obtaining any property by theft a misdemeanor where the value of the property does not exceed $ 950. But burglary of a motor vehicle (Pen. Code, § 459) is not included within the reach of section 490.2 because theft is not an element of the offense. Auto burglary is committed by entry into a locked vehicle with the intent to commit grand or petit larceny; it may be committed without an actual taking.

The new offense of misdemeanor shoplifting (Pen. Code, § 459.5), does not reflect that Proposition 47 was intended to apply to burglaries. Section 459.5 applies to offenders who enter an open commercial establishment during regular business hours, with intent to commit larceny. It does not reference any other type of burglary offenses, and auto burglary does not fall within the definition of misdemeanor shoplifting.

Appellant is not denied equal protection because Proposition 47 does not apply to his attempted vehicle burglary, even though grand theft of an automobile with a value of $950 or less is subject to reduction to a misdemeanor. Appellant argued he was denied equal protection because a conviction of grand theft of a vehicle worth $950 or less is now a misdemeanor under Proposition 47 (Pen. Code, § 490.2). His claim failed under the rational basis test because the Legislature has considerable latitude in determining the consequences of criminal acts. The electorate could rationally extend misdemeanor treatment to some nonviolent offenses and not to others "as a means of testing whether Proposition 47 has a positive or negative impact on the criminal justice system." Further, the electorate could have concluded that car burglary should be treated more harshly than vehicle theft because it requires entry into a locked vehicle, which is not an element of vehicle theft.

People v. Peacock (2015) 242 Cal.App.4th 708 (E063095)
Trial court erred in reducing felony receiving stolen motor vehicle offense (Pen. Code, § 496d, subd. (a)) to misdemeanor, as that crime is not covered by Proposition 47.
In 2012, appellant pled no contest to receiving a stolen 1988 Honda ATV, in exchange for dismissal of a recidivist allegation (Pen. Code, § 666.5) and enhancements for three prior prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to 16 months. In February 2015 the trial court granted appellant's petition to reduce the offense to a misdemeanor under Proposition 47. The prosecution appealed. Held: Reversed. Proposition 47 reclassified certain felony and wobbler drug and theft offenses as misdemeanors. It also added a statute that allows a person who has completed his felony sentence for an eligible offense to apply to have the felony conviction designated as a misdemeanor. (See Pen. Code, § 1170.18, subd. (f)). Section 496d was not amended by Proposition 47 and is not listed in section 1170.18, which does separately list receiving stolen property (Pen. Code, § 496). Section 490.2, which is listed in section 1170.18, defines "petty theft" as obtaining by theft property, money, or labor where the value of the personal property taken does not exceed $950. However, a violation of section 496d is not subsumed in section 490.2 as a "theft-related" offense. This conclusion is clear from the fact that section 1170.18 separately lists section 496.

Appellant is not denied equal protection by the exclusion of receiving a stolen motor vehicle from the coverage of Proposition 47. The Fourteenth Amendment to the U.S. Constitution and article I, section 7, subdivision (a) of the California Constitution both guarantee equal protection of the laws. Where an asserted disparity does not implicate a suspect classification or fundamental right, a denial of equal protection will be found only where there is no rational relationship between the disparate treatment and some legitimate governmental purpose. Here, there are several reasons that could support treating the receipt of other stolen property differently from receiving a stolen motor vehicle, such as the fact that car owners are typically dependent upon their vehicles for necessities. There is no equal protection violation.

Harris v. Superior Court (2015) 242 Cal.App.4th 244 (B264839)
The People are entitled to withdraw from plea agreement where reducing defendant's felony to a misdemeanor under Proposition 47 deprived the People of the benefit of the plea bargain.
Harris was charged with robbery for hitting a stranger in the face and taking his cell phone. Pursuant to a plea agreement, he pleaded guilty to grand theft, admitted a prior strike, and was sentenced to six years in prison. After Proposition 47 passed, Harris petitioned to reduce his grand theft conviction to a misdemeanor. The People filed a motion to withdraw from the plea agreement and reinstate the previously dismissed charges on the basis that Harris was entitled to reclassification of his conviction, but the result would deny the People the benefit of the negotiated plea agreement. Harris elected to proceed with his Proposition 47 petition and the court granted both Harris's petition and the People's motion. Harris filed a petition for writ of mandate, which the Court of Appeal considered after the California Supreme Court directed the court to issue an order to show cause. Held: Writ denied. When a change in law destroys a fundamental assumption underlying a plea bargain, the People are deprived of the benefit of the bargain and may withdraw from the plea. (People v. Collins (1978) 21 Cal.3d 208, 214-216.) This case, like Collins, involves a change in the law that undermined the "fundamental assumption" of the plea bargain—that the defendant would serve a six-year prison term. The court distinguished Doe v. Harris (2013) 57 Cal.4th 64, which recently held that a plea agreement is "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law." The Court of Appeal determined that this rule is limited to situations where the law changes with respect to "unbargained-for statutory consequences of a conviction."

Dismissed charges can be reinstated and defendant's sentencing exposure is not limited to six years. The Court of Appeal also concluded that the People were entitled to reinstatement of the previously dismissed charges based on Collins. To guide the trial court in subsequent proceedings, the court also considered whether Harris's sentencing exposure was limited to the six years that he agreed to as part of his plea bargain. The court determined that his exposure was not limited. Although the defendant in Collins was entitled to preserve the benefit of his bargain, the plea agreement in that case was undermined by external events and not the defendant's repudiation of the deal. Here, Proposition 47 did not void Harris's plea agreement but only rendered it voidable at his option. Having effectively repudiated the plea deal by filing a Proposition 47 petition, "the plea agreement is deemed to be rescinded, and the parties are returned to the status quo ante." [Editor's Note: There is now a split of authority on this issue because T.W. v. Superior Court (2015) 236 Cal.App.4th 646, reached the opposite conclusion. Mosk, J. dissented, arguing that T.W. should be followed, that Doe controlled, and that Collins is distinguishable.]

People v. Romanowski (2015) 242 Cal.App.4th 151 (B263164)
Proposition 47 applies to theft of an access card (Pen. Code, § 484e, subd. (d)) provided the theft involved property valued at less than $950.
In September 2014, Romanowski pleaded no contest to grand theft of access card information (Pen. Code, § 484e, subd. (d)). In March 2015, he filed a Proposition 47 petition for resentencing. (Pen. Code, § 1170.18.) The trial court denied the petition, concluding that Proposition 47 did not apply to the offense of theft of an access card. Romanowski appealed. Held: Reversed and remanded. Proposition 47 added Penal Code section 490.2, which redefines all grand theft offenses as misdemeanors if they involve property valued at less than $950. Section 484e, subdivision (d) states that every person who retains possession of another person's access card information without the cardholder's consent is guilty of grand theft. "The legal syllogism is therefore straightforward: if grand theft involving property valued at less than $950 is a misdemeanor, and acquiring or retaining possession of access card information is defined as grand theft, then acquiring or retaining possession of an access card information valued at less than $950 is a misdemeanor." The voter's intent also supports this construction of the plain language. The court disagreed with People v. Cuen (2015) 241 Cal.App.4th 1227 and People v. Grayson (2015) 241 Cal.App.4th 454, which reached the opposite conclusion. Remand was required because the trial court did not decide whether Romanowski's theft involved property worth less than $950.

People v. Morris (2015) 242 Cal.App.4th 94 (H041781)
After Proposition 47 resentencing, a defendant's excess custody credits may be applied to reduce eligible fines, including restitution fines in cases where the crime occurred before 2014.
In 2013, Morris pleaded no contest to felony petty theft with priors (Pen. Code, § 666, subd. (a)) and admitted he had a prior strike and two prison priors. The court sentenced him to four years and imposed various fines and fees, including a $280 restitution fine (Pen. Code, § 1202.4, subd. (b)(2)). After Proposition 47 passed, Morris filed a petition to reduce his conviction to a misdemeanor. The court granted it and resentenced Morris to six months in jail, lowered the restitution fine to $200, and waived all of the other fines, fees, and assessments. Morris appealed, arguing that the trial court erred by failing to apply his excess custody credits (297 days) to reduce his $200 restitution fine. Held: Judgment modified. Under Penal Code section 2900.5, a defendant's excess custody credits may be used to reduce certain fines at the rate of $30 per day. Restitution fines were included among those that could be reduced until the Legislature amended section 2900.5 in July 2013 (with an effective date of January 1, 2014). Because restitution fines are considered punishment, the ex post facto clause requires that the restitution fine be governed by the law that was in effect at the time the offense was committed. (People v. Souza (2012) 54 Cal.4th 90, 143.) Here, Morris committed his offense before the January 1, 2014 effective date of the amendment to section 2900.5. Thus, his excess custody credits could be used to reduce his $200 restitution fine at a rate of $30 per day. Since Morris had 297 days of excess credits, the Court of Appeal deemed the fine satisfied.

People v. Gonzales (2015) 242 Cal.App.4th 35 (D067554)
Second degree commercial burglary conviction based on cashing forged checks in a bank is not eligible for reduction to misdemeanor shoplifting under Proposition 47.
In December 2013, Gonzales took two checks from his grandma, made each payable to himself in the amount of $125, signed his grandma's name to the checks, and cashed the checks at a bank. He pleaded guilty to second degree commercial burglary (Pen. Code, § 459). After Proposition 47 passed, Gonzales petitioned to reduce his second degree burglary conviction to misdemeanor shoplifting. (See Pen. Code, §§ 1170.18, 459.5 [added by Proposition 47]). The trial court denied the petition, reasoning that Gonzales's offense did not qualify as shoplifting because there was no larceny. Gonzales appealed. Held: Affirmed. Section 459.5 defines the offense of shoplifting "as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed" $950. Larceny requires a taking without the property owner's consent. (People v. Williams (2013) 57 Cal.4th 776, 788.) Here, Gonzales made false representations to the bank that he was cashing valid checks. Relying on these representations, the bank consented to transferring possession of the $250 to Gonzales. As a result, there was no larceny and Gonzales's offense did meet the statutory definition of shoplifting, which requires an "intent to commit larceny." The trial court properly refused to reduce his second degree commercial burglary conviction to misdemeanor shoplifting.

Proposition 47 does not permit resentencing of section 459 offenses. Gonzales also argued that his conviction under section 459 should be reduced to a misdemeanor because Proposition 47 permits resentencing for other theft offenses involving property under the threshold of $950. The Court of Appeal disagreed. Although Proposition 47 reduced a number of theft offenses to misdemeanors (see Pen. Code, §§ 459.5 [shoplifting], 473 [forgery], 476a [issuing checks without sufficient funds], 490.2 [petty theft], 496 [receiving stolen property]), section 459 was not included. One rule of statutory construction, "unius est exclusion alterius," provides that where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed in the absence of a clear legislative intent to the contrary. The failure to include section 459 among the offenses that qualify for misdemeanor sentencing if the property in question had a value of less than $950 demonstrates an intent to exclude it from Proposition 47's resentencing provisions.

People v. Garness (2015) 241 Cal.App.4th 1370 (E062947)
Defendant convicted of receiving a stolen vehicle (Pen. Code, § 496d) worth less than $950 is not eligible to have the offense reduced to a misdemeanor pursuant to Proposition 47.
In 2013, Garness pleaded no contest to felony receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). It was stipulated that the value of the vehicle was $540. After Proposition 47 passed, Garness filed a petition to reduce his felony conviction to a misdemeanor. (Pen. Code, § 1170.18.) The trial court denied the petition. Garness appealed. Held: Affirmed. Proposition 47 amended Penal Code section 496, receiving stolen property, to make that offense a misdemeanor if the value of the property at issue does not exceed $950. However, Garness's conviction was for receiving a stolen vehicle under section 496d and Proposition 47 left intact the language in that section which makes the offense punishable as either a felony or misdemeanor. Garness argued that the facts underlying his conviction fell within the scope of section 496 because that section applies to receiving "any property," which necessarily includes a motor vehicle. The Court of Appeal rejected that argument, reasoning that there are many offenses in the Penal Code that overlap and "it is axiomatic that the Legislature may criminalize the same conduct in different ways thereby giving the prosecutor discretion to proceed under either of two statutes that proscribe the same conduct, but which prescribe different penalties." (People v. Chenze (2002) 97 Cal.App.4th 521, 523.) The court found no language in Proposition 47 reflecting an intent to reduce the punishment for offenses that are similar to those that are specifically enumerated and found nothing absurd or irrational about treating receiving stolen property and receiving a stolen vehicle differently.

People v. Hoffman (2015) 241 Cal.App.4th 1304 (B261945)
For a defendant convicted of seven separate counts of felony forgery, trial court did not have discretion to aggregate the value of the seven forged checks, which were each less than $950, to deny resentencing under Proposition 47.
Hoffman pleaded guilty to seven counts of felony forgery in May 2014 based on forging seven of her parents' checks in amounts ranging from $175 to $400. In exchange, a number of other felony counts, including grand theft, were dismissed with a Harvey waiver. After Proposition 47 passed, Hoffman filed a petition to reduce the felony convictions to misdemeanors. (See Pen. Code, § 1170.18.) The trial court denied the request, reasoning that the aggregate value of the seven counts exceeded $950, which "takes her outside the spirit of the law." Hoffman appealed. Held: Reversed. Under Proposition 47, a defendant is eligible to have a felony forgery conviction reduced to a misdemeanor if the value of the forged check does not exceed $950. (See Pen. Code, §§ 473, subd. (b), 1170.18, subd. (a).) The People conceded that section 473 did not authorize the trial court to aggregate check values but argued that Hoffman's Harvey waiver allowed the trial court to rely on the dismissed counts that would not have been eligible for reduction to misdemeanors to find she was "outside the spirit" of Proposition 47. The court rejected this argument. Under the plain language of Proposition 47, a trial court may not refuse to reduce a defendant's sentence based on the court's notion of the statute's "spirit." The criteria for resentencing are explicitly set forth in section 1170.18, subdivision (a). If those criteria are met, which they were here, the court "shall" reduce the defendant's felony to a misdemeanor unless it finds resentencing would pose an unreasonable risk of danger to public safety. Courts do not have discretion to take into account other considerations.

People v. Page (2015) 241 Cal.App.4th 714 (E062760)
Felony conviction for unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) may not be reduced to a misdemeanor under Proposition 47.
Page pleaded guilty to a number of charges, including the unlawful taking of a vehicle, and was sentenced to prison. After Proposition 47 passed, he filed a petition to reduce his felony conviction for unlawful taking to a misdemeanor. The trial court denied his petition. He appealed. Held: Affirmed. Proposition 47 added Penal Code section 490.2, which provides that "[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, or real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor." Although Vehicle Code section 10851 is a lesser included offense of Penal Code section 487, subdivision (d)(1) (grand theft auto), the Court of Appeal here concluded that section 490.2 does not apply to section 10851. Section 490.2 amended the definition of grand theft, but section 10851 does not proscribe theft; instead, it prohibits taking or driving a vehicle without the intent to steal. Proposition 47 did not amend the language of section 10851, subdivision (a), which makes a violation of the statute punishable as either a felony or a misdemeanor, and section 10851 is not one of the enumerated offenses in the resentencing provision of Proposition 47 (Pen. Code, § 1170.18, subd. (a)). The court also rejected Page's equal protection argument. (See People v. Wilkinson (2004) 33 Cal.4th 821, 838.)

People v. Cuen (2015) 241 Cal.App.4th 1227 (G051368)
Felony theft of access cards is not eligible for reduction to a misdemeanor under Proposition 47.
In 2014, Cuen pled no contest to two counts of theft of access cards (Pen. Code, § 484e, subd. (d)), among other offenses. He received a three-year split sentence. After the passage of Proposition 47 in November 2014, he petitioned for reduction of his offenses to misdemeanors. (Pen. Code, § 1170.18.) The trial court denied his request with respect to the theft of access cards, finding those offenses "outside the letter and spirit of Proposition 47." Cuen appealed. Held: Affirmed. Section 1170.18, subdivision (a) lists the offenses subject to reduction under Proposition 47, and section 484e, subdivision (d) is not listed. Section 490.2, which was added by Proposition 47, provides that obtaining property by theft is a misdemeanor if the value of the item taken does not exceed $950, regardless of section 487 or any other statutory provision defining grand theft. Sections 1170.18, subdivision (a) and 490.2 are unambiguous; the former enumerates the offenses subject to reduction to misdemeanors and the latter applies to theft of "money, labor, real or personal property." "Theft of intangible access card account information presents a qualitatively different personal violation than theft of more tangible items." Further, section 484e, subdivision (d) is the more specific statute that describes grand theft without reference to value and is therefore not subject to reduction.

People v. Buycks (2015) 241 Cal.App.4th 519 (B262023)
When trial court conducted a full resentencing after granting Proposition 47 relief, it erred by reimposing on-bail enhancement where the felony the defendant was on bail for had been reduced to a misdemeanor.
In August 2014, Buycks pleaded no contest to petty theft with a prior (Pen. Code, § 666, subd. (a)) and evading a police officer. He also admitted that he committed these offenses while out on bail in a separate felony drug case (Pen. Code, § 12022.1). After Proposition 47 passed, Buycks filed petitions to reduce the felony drug offense and the petty theft offense to misdemeanors. The court first granted his petition in the drug case and reduced the offense to a misdemeanor. Approximately two weeks later, the court granted Buycks' petition to reduce his felony petty theft conviction to a misdemeanor. Because the felony petty theft had been the principal term in that case, the court conducted a full resentencing and reimposed the on-bail enhancement over Buycks' objection. He appealed. Held: Reversed. A defendant is subject to an on-bail enhancement when he commits a felony offense (the secondary offense) while on bail for another felony offense (the primary offense) and is ultimately convicted of both offenses. Here, at the time of Buycks' resentencing, his felony drug conviction (the primary offense) had been reduced to a misdemeanor "for all purposes" (Pen. Code, § 1170.18, subd. (k)). Relying on rules of statutory construction and the reasoning in People v. Park (2013) 56 Cal.4th 782, the Court of Appeal concluded that the voters intended section 1170.18, subdivision (k) to preclude the trial court from reimposing the on-bail enhancement. The court was required to reevaluate the applicability of the on-bail enhancement at the time of the resentencing and the primary felony offense had been reduced to a misdemeanor by the time Buycks was resentenced for the secondary offense.

People v. Grayson (2015) 241 Cal.App.4th 454 (B262126)
Felony conviction for grand theft under Penal Code section 484e, subdivision (d) is not eligible for reduction to a misdemeanor under Proposition 47.
Police searched Grayson and found three credit cards and four credit card account profiles in his backpack that did not belong to him. The cardholders did not report any monetary losses. Grayson was convicted of seven felony counts of grand theft pursuant to section 484e, subdivision (d), which provides that "[e]very person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft." Thereafter, the voters passed Proposition 47, which added Penal Code section 490.2. This new statute provides that "[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, or real or personal property taken does not exceed [$950] shall be considered petty theft and shall be punished as a misdemeanor." Citing section 490.2, Grayson filed a petition to have his felony convictions reduced to misdemeanors. The trial court denied the petition. Grayson appealed. Held: Affirmed. Although section 490.2 purports to apply to all provisions defining grand theft, it mentions only section 487. Both sections 490.2 and 487 presume a loss to the victim that can be quantified to determine whether it exceeds the $950 threshold. By contrast, no monetary loss is necessary to sustain a conviction for grand theft under section 482e, subdivision (d). Possession of an access card or information with intent to use it is sufficient. Due to that distinction, the Court of Appeal concluded "there was no intent to apply section 490.2 to section 484e(d) to reduce the offense to a misdemeanor."

People v. Rivas-Colon (2015) 241 Cal.App.4th 444 (A144390)
The petitioner bears the burden of proving he is eligible for resentencing under Proposition 47.
Rivas-Colon went into the NFL Shop at Pier 39 in San Francisco and attempted to leave with $1,437.74 worth of merchandise without paying. He pled guilty to second degree commercial burglary (Pen. Code, § 459). After Proposition 47 passed, Rivas-Colon petitioned for resentencing of his felony burglary conviction based on newly added Penal Code section 459.5, which classifies shoplifting as a misdemeanor "where the value of the property that is taken or intended to be taken does not exceed [$950]." The People argued Rivas-Colon was ineligible for resentencing under Proposition 47 because he stole $1,437.74 in merchandise, well above the $950 limit for shoplifting. The trial court agreed and denied Rivas-Colon's petition. He appealed, arguing that the prosecution had not met its burden to establish the value of the property exceeded $950. Held: Affirmed. Agreeing with People v. Sherow (2015) 239 Cal.App.4th 875, the court held that the defendant has the initial burden to establish eligibility for resentencing, which in second degree burglary cases means the petitioner has the burden of proving the value of the property he took did not exceed $950. Here, Rivas-Colon offered no evidence or argument to prove the value of the merchandise he stole did not exceed $950. Accordingly, the trial court properly denied his petition because he failed to carry his burden. The court also rejected Rivas-Colon's argument that his trial attorney was ineffective for failing to specify the amount of merchandise in the resentencing petition because the record did not reveal the trial attorney's reason for declining to specify the value.

In Proposition 47 resentencing proceedings, there is no Sixth Amendment right to a jury trial on the value of property taken during the crime. Rivas-Colon also argued that under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Blakely v. Washington (2004) 542 U.S 296, 303, he was entitled to a jury trial on the value of the stolen property. The Court of Appeal disagreed. "[A] defendant's Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt does not apply to limits on downward sentence modifications due to intervening laws." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304, citing Dillon v. United States (2010) 560 U.S. 817, 828-829.) In Kaulick, the court applied this rule to find that a jury trial was not required when determining the issue of a defendant's dangerousness in the context of Proposition 36 resentencing. Agreeing with the reasoning in Dillon and Kaulick, the Court of Appeal here concluded that there is no right to a jury trial on the value of the property on a petition for resentencing brought pursuant to Proposition 47.

People v. Armogeda (2015) 240 Cal.App.4th 1039 (G051197)
Individual on postrelease community supervision (PRCS) is serving a "sentence" for purposes of imposing a one-year parole period under Proposition 47.
Armogeda pled guilty to felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and the court sentenced him to two years in prison. In 2013 he was released on PRCS. After Proposition 47 passed in 2014, and while he was still on PRCS, Armogeda filed a petition to reduce his felony drug conviction to a misdemeanor. The court resentenced Armogeda to a misdemeanor and placed him on a one-year period of parole pursuant to Penal Code section 1170.18, subdivision (d). Armogeda appealed, arguing that the trial court should not have imposed the parole period because he had already completed his sentence when he filed the petition. Held: Affirmed on this point. A Proposition 47 petitioner "currently serving a sentence" is generally subject to parole for a one-year period while a petitioner who has "completed his or her sentence" is not. (See Pen. Code, § 1170.18, subds. (d), (f).) Here, the trial court concluded that Armogeda was currently serving his felony sentence because he was still on PRCS. The Court of Appeal agreed. Although the word "sentence" in section 1170.18 is ambiguous concerning whether it encompasses just the prison term or the prison term and corresponding period of parole or PRCS, other sections of the Penal Code clarify that a sentence includes a period of parole supervision or PRCS. (See Pen. Code, §§ 3000, subd. (a)(1), 1170, subd. (c).) The voters who enacted Proposition 47 are presumed to be aware of this construction. Accordingly, Armogeda was properly subject to a one-year parole period. The trial court did not err.

Trial court erred by failing to credit defendant's excess custody credits against his parole period and eligible fines. Armogeda's also argued that the trial court erred when it declined to apply his excess custody credits toward the one-year parole period. The Court of Appeal agreed. Penal Code section 2900.5 mandates that a defendant's excess custody credits be applied to reduce his or her parole period and eligible fines, except a restitution fine. Here, by the time the trial court resentenced Armogeda to a misdemeanor he had served nearly two years in prison and two years on PRCS. The Court of Appeal agreed with People v. Morales (2015) 238 Cal.App.4th 42, which held that a Proposition 47 parole period must be reduced by excess custody credits, and disagreed with the contrary holdings and rationale of both People v. McCoy (2015) 239 Cal.App.4th 431, and People v. Hickman (2015) 237 Cal.App.4th 984. Addressing McCoy and Hickman, the Court of Appeal stated: "We do not so easily disregard the plain words and legislative goals of section 2900.5."

People v. Scarbrough (2015) 240 Cal.App.4th 916 (C075414)
Trial court lacks jurisdiction to reduce a felony conviction to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18) while an appeal from that felony conviction is pending.
Scarbrough pled no contest to two counts of felony possession of a controlled substance and was placed on probation. While on probation, she pled no contest to felony child endangerment and admitted probation violations. The trial court revoked probation and sentenced her to prison in 2013. She appealed. Following the passage of Proposition 47 in 2014, Scarbrough filed a petition in the trial court for resentencing of her felony drug possession convictions to misdemeanors, which was granted. Thereafter, she attempted to abandon her appeal but the Court of Appeal denied the request so it could address whether the trial court possessed concurrent jurisdiction to entertain a Proposition 47 petition. Held: The trial court lacked concurrent jurisdiction. As a general rule, the filing of a notice of appeal divests the trial court of jurisdiction and vests it in the Court of Appeal. But there are a number of exceptions where concurrent jurisdiction is permitted: to correct an unauthorized sentence; to recall and resentence the defendant within 120 days under Penal Code section 1170, subdivision (d); and to hear writs of habeas corpus. The Court of Appeal rejected Scarbrough's analogy of Proposition 47 to each of those exceptions. Instead, guided by the reasoning of People v. Yearwood (2013) 213 Cal.App.4th 161, the Court of Appeal concluded that section 1170.18 did not create an exception to the general rule that a trial court may not issue an order affecting judgment while an appeal is pending. The court also concluded that this result did not frustrate the voter's intent, thwart judicial economy, or force petitioners into an untenable dilemma of having to elect between pursuing an appeal or obtaining Proposition 47 relief.

People v. Sellner (2015) 240 Cal.App.4th 699 (B261487)
After reducing appellant's conviction on the principal term of his sentence to a misdemeanor under Proposition 47, trial court properly imposed middle term of two years on the subordinate term felony.
In 2014, Sellner was sentenced to eight months (one-third the two year midterm) for receiving stolen property, to be served consecutively to a three year principal term sentence in a different case. She obtained Proposition 47 relief on the conviction on the principal term, which was reduced to a misdemeanor, but denied such relief on the subordinate term (receiving stolen property). The trial court "resentenced" Sellner to two years for receiving stolen property. On appeal she claimed the trial court lacked jurisdiction to refashion the felony sentence and doing so illegally increased her eight month term (see Pen. Code, § 1170.18, subd. (e)). Held: Affirmed. Section 1170.1, subdivision (a) creates an exception to the general rule depriving the trial court of jurisdiction after execution of a sentence. It provides that when the court imposes a consecutive sentence, whether in the same proceeding or different proceedings, it must impose a principal term and one or more subordinate terms. Here, the eight month term for receiving stolen property was initially a consecutive term, so section 1170.1 restricted the term of imprisonment to one-third the middle term. When the trial court reduced the principal term to a misdemeanor, it was required to order Sellner to serve the two year term originally imposed on the remaining felony.

The increase of the eight-month subordinate term to two years did not illegally increase Sellner's sentence. Sellner claimed that the increase in the former subordinate term sentence from eight months to two years subjected her to greater punishment than initially imposed. However, because the recomputed term (2 years) is less than the prior aggregate sentence (3 years, 8 months), Sellner was not punished more severely for her successful Proposition 47 petition. Thus, there is no jeopardy issue. The new term also does not run afoul of section 1170.18, subdivision (e), which prohibits the trial court from imposing a longer sentence when granting a Proposition 47 petition. Section 1170.18, subdivision (e) does not trump section 1170.1 or govern aggregate consecutive sentences.

People v. Segura (2015) 239 Cal.App.4th 1282 (G051280)
Proposition 47 does not authorize the trial court to reduce felony conspiracy conviction to a misdemeanor even if the offense the defendant conspired to commit was reduced to a misdemeanor.
Segura and two codefendants planned and executed a theft at a 7-Eleven. Segura pled guilty to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and conspiracy to commit theft (Pen. Code, §§ 182, subd. (a)(1), 484, subd. (a), 488), which were both felonies at the time. After Proposition 47 passed, he petitioned to have both convictions reduced to misdemeanors. The trial court granted the petition with respect to the second degree burglary conviction but denied it with respect to the conspiracy conviction. He appealed. Held: Affirmed. Section 1170.18 sets forth the various crimes that are eligible for reduction to a misdemeanor. Conspiracy is not among them. Thus the trial court correctly concluded that it lacked the statutory authority to resentence defendant on the conspiracy count. This conclusion does not lead to absurd results even though the petty theft, which is eligible for reduction, and the conspiracy, which is not, were inextricably intertwined. A conspiracy presents a greater evil than an individual acting alone: "a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law." (People v. Welch (1928) 89 Cal.App.18, 22.).

People v. Sherow (2015) 239 Cal.App.4th 875 (D067605)
A person seeking to have felony second degree burglary convictions reduced to misdemeanor shoplifting (Pen. Code, § 459.5) under Proposition 47 has the burden to show the property loss in each count did not exceed $950.
Sherow was convicted of multiple counts of second degree burglary, a strike prior, and enhancements. He was originally sentenced to 19 years, 4 months in prison. In November 2014, Sherow filed a petition for resentencing on five of the burglary counts pursuant to Proposition 47. The prosecutor opposed the request, contending that the losses exceeded $950. Relief was denied and Sherow appealed the decision as to two of the counts. He claimed the record did not show losses in excess of $950 per count. Held: Affirmed. Under section 1170.18, Sherow had the burden to show the property loss in each of the counts did not exceed $950, and thus fell within the new statutory definition of shoplifting (Pen. Code, § 459.5). Sherow's petition was a general request for resentencing on all counts without any discussion regarding each count, or reference to the facts or any argument. Proposition 47 does not explicitly allocate the burden of proof regarding a defendant's entitlement to resentencing. However, Sherow was validly convicted under the law applicable at the time of trial. He therefore bears the initial burden of establishing eligibility for resentencing under section 1170.18. As Sherow's petition provided no information which reflected his eligibility for resentencing, and the facts of the offenses were known to him, it was properly denied. The trial court's order was affirmed without prejudice to subsequent consideration of a properly filed petition.

People v. Eandi (2015) Cal.App.4th 801 (C078257)
Trial court was not authorized to amend charge of failure to appear (FTA) on a pending felony charge to FTA on a pending misdemeanor charge where the underlying felony was reduced to a misdemeanor under Proposition 47.
In November 2014, Eandi was charged with failing to appear in August 2014 on a felony drug possession charge. She pled guilty in exchange for dismissal of an on bail enhancement and the underlying drug charge. By the time Eandi's drug charge was dismissed, it had been reduced to a misdemeanor by operation of Proposition 47. At sentencing, the trial court concluded it should amend the felony FTA charge (Pen. Code, § 1320, subd. (b)) to a misdemeanor FTA charge (Pen. Code, § 1320, subd. (a)). The prosecution appealed. Held: Reversed and remanded. Section 1320 was not one of the offenses included in the text of Proposition 47, so the felony FTA offense was not directly affected by the initiative. Here, the Court of Appeal concluded that Proposition 47 does not have "a collateral retroactive effect such that the pending felony drug possession charge at the time of the" FTA "in August 2014 became a misdemeanor as a matter of law retroactively, thereby negating a necessary statutory element of failure to appear on a felony charge . . . ." FTA is a crime of deceit and it is the breach of a promise to appear that is the basis for the offense. The disposition of the underlying offense is immaterial. At the time of Eandi's FTA in August 2014, there was a felony drug charge pending against her for which she failed to appear. Proposition 47 "did not purport to exercise a power to go back in time and alter the felony status of every affected offense in every context." On remand, the trial court may exercise its discretion to reduce the felony FTA violation to a misdemeanor under Penal Code section 17.

People v. McCoy (2015) 239 Cal.App.4th 431 (B260449)
Defendant resentenced to a misdemeanor under Proposition 47 cannot use excess custody credits to reduce his one year Proposition 47 parole term.
McCoy pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted six prior prison terms (Pen. Code, § 667.5, subd. (b)). After repeated probation violations, the court revoked McCoy's probation and sentenced him to four years in prison. After voters passed Proposition 47, McCoy successfully petitioned to have his felony possession of methamphetamine conviction reduced to a misdemeanor and was sentenced to one year in jail with credit for time served. The court also placed him on one year of parole. (See Pen. Code, § 1170.18, subd. (d).) However, McCoy had 381 actual days of credit and 380 conduct credits, which he requested be used to reduce the parole term. The court denied his request. McCoy appealed. Held: Affirmed. The Court of Appeal reiterated its holding in People v. Hickman (2015) 237 Cal.App.4th 984, that excess custody credits cannot be used to reduce the one year Proposition 47 parole term. The court also expressly disapproved of the decision in People v. Morales (2015) 238 Cal.App.4th 42, which reached the opposite conclusion. The court emphasized that the one year parole term is distinct from other forms of parole because the electorate specifically intended that it apply in every case unless the trial court concludes otherwise. The court also rejected McCoy's equal protection argument on the basis that nonviolent drug offenders resentenced under Proposition 47 are not similarly situated to violent felony offenders, who are able to use excess custody credits to reduce their parole terms under the rule set forth in In re Sosa (1980) 102 Cal.App.3d 1002.

Excess custody credits cannot be used to satisfy a restitution fine but they could be used to satisfy a drug program fee. When the court originally sentenced McCoy, it ordered him to pay a $50 drug fee (Health & Saf. Code, § 11372.7) and a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)). At his Proposition 47 resentencing, he argued that his excess custody credits should be used to reduce his $200 restitution fine and his $50 drug fee at a rate of $30 per day of excess credit. The trial court denied the request. The Court of Appeal disagreed with McCoy that excess custody credits could reduce the restitution fine, but agreed that they should be used to reduce the drug fee. Prior to 2014, Penal Code section 2900.5, subdivision (a) provided that excess custody credits could be used to reduce any fine, including a restitution fine. But the Legislature amended section 2900.5 in 2013 to eliminate the provision permitting custody credits to reduce restitution fines. Accordingly, the trial court correctly found that McCoy's excess custody credits did not satisfy his $200 restitution fine. However, the trial court erred with respect to the drug fee. A drug fee imposed under Health and Safety Code section 11372.7, subdivision (a) is a fine similar to a penalty assessment and is subject to reduction at a rate of $30 per day of excess custody credit under section 2900.5, subdivision (a).

People v. Perez (2015) 239 Cal.App.4th 24 (C078169)
Proposition 47 reduction of felony drug offense to misdemeanor does not require reduction of felony failure to appear (FTA) conviction because the severity of an FTA is not lessened by the outcome of the underlying charge.
Perez was convicted of a felony drug offense, and an FTA for that offense. In 2014, his conviction was final. Following the passage of Proposition 47, Perez petitioned to have his felonies reduced to misdemeanors. He reasoned that if the drug charge is reduced to a misdemeanor "for all purposes" (Pen. Code, § 1170.18, subd. (k)), the FTA for failing to appear on that offense should also be reduced. The trial court granted the petition with respect to the drug offense, but not the FTA. Perez appealed. Held: Affirmed. When a defendant fails to appear on a felony charge, a charged FTA is a felony. If the underlying charge is a misdemeanor, so is the FTA. Penal Code section 1170.18, subdivision (k) provides that when a qualified felony is reduced to a misdemeanor, it shall be construed a misdemeanor for all purposes, except the resentenced defendant may not own or possess a firearm. The provisions of Proposition 47 do not address pendent or ancillary offenses, just the offenses listed in the statute. The criminal conduct proscribed by section 1320, subdivision (b) is complete when a defendant willfully fails to appear in order to evade the process of the court. "The severity of an FTA is not lessened by the outcome of the underlying charge, because section 1320 applies to person charged with or convicted of crimes." The disposition of a case does not alter the severity of the defendant's act at the time he willfully evaded the process of the court. Thus, the reduction of the underlying drug charge to a misdemeanor does not affect defendant's felony FTA conviction.

People v. Delapena (2015) 238 Cal.App.4th 1414 (H041363)
Appellate court was not required to reduce appellant's felony drug possession offense to a misdemeanor because Proposition 47 is not retroactive.
Delapena pled no contest to felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) after his motion to suppress evidence was denied. On appeal, he asked that his conviction be reduced to a misdemeanor pursuant to Proposition 47. Respondent countered that Proposition 47 is not retroactive, and that Delapena had to file a petition for reduction of his sentence in the trial court. Held: Reduction denied. The statutes amended by Proposition 47 include Health and Safety Code section 11377, subdivision (a), which is now punishable as a misdemeanor if the defendant has no disqualifying priors. Penal Code section 1170.18 provides the procedure whereby qualified defendants may seek resentencing pursuant to Proposition 47. In re Estrada (1965) 63 Cal.2d 740, held that when the Legislature (or electorate) amends a statute to reduce the punishment for an offense, courts will assume the Legislature intended the reduction to apply to all cases not yet final, absent evidence to the contrary. However, when the Legislature clearly signals its intent to make the statute prospective, by inclusion of an express savings clause or its equivalent, the rule of Estrada is not implicated. The creation of the petition process in section 1170.18 is the functional equivalent of a savings clause; it signals the electorate's intent that a certain group of qualified defendants (i.e., those sentenced prior to Prop. 47's passage) follow those procedures. This ensures that the trial court will conduct a review of the defendant's criminal history and perform a risk assessment so that anyone who presents a risk to public safety or who is otherwise disqualified will not benefit from the law. Appellant may file a petition in the trial court for reduction of his offense.

Principles of equal protection do not require the retroactive application of Proposition 47. There is a rational basis for Proposition 47's procedural distinction between those defendants who were not yet sentenced before its passage and those who are already serving a term for affected felonies. The determination that a defendant qualifies for sentence reduction often depends on factual issues. The electorate could reasonable decide that defendants who were sentenced prior to Proposition 47's passage may only obtain relief by following the section 1170.18 procedures, which allow the trial court to make the necessary factual findings.

People v. Diaz (2015) 238 Cal.App.4th 1323 (B255951)
In a case where a defendant has not filed a Proposition 47 petition to designate a prior felony conviction as a misdemeanor, Court of Appeal will not strike prior prison term enhancement based on that prior offense.
Diaz was convicted of being a felon in possession (Pen. Code, § 29800, subd. (a)(1)). He also admitted a prior strike and two prior prison terms (Pen. Code, § 667.5, subd. (b)). One of the prior prison terms was for a 2009 conviction for petty theft with a prior (Pen. Code, § 666). While his appeal was pending, the voters enacted Proposition 47, which reduced petty theft with a prior to a misdemeanor, with certain exceptions. Diaz argued that because petty theft with a prior is now a misdemeanor under Proposition 47, it cannot be used to enhance his sentence under section 667.5, subdivision (b). Held: Affirmed. Diaz's contention that Proposition 47 compels striking the prison prior enhancement is premature. Proposition 47 specifically requires individuals who are either currently serving a sentence or who have completed a sentence for a crime that is now a misdemeanor to file a petition in the court that originally sentenced them. Diaz had not done this. Proposition 47 does not permit a Court of Appeal to declare in the first instance that a felony conviction for a crime reduced by Proposition 47 is now a misdemeanor. In re Estrada (1965) 63 Cal.3d 740 and equal protection principles do not change this result. The court also rejected as "unworkable" the stay and limited remand procedure employed by the court in People v. Awad (2015) 238 Cal.App.4th 215. The court expressed no opinion concerning whether a felony conviction which has been designated a misdemeanor under section 1170.18, subdivision (k) can be used to support a section 667.5, subdivision (b) enhancement. (See People v. Flores (1979) 92 Cal.App.3d 461.)

Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (D067445)
Minor was entitled to have his juvenile adjudication redesignated as a misdemeanor, in addition to having his maximum term of confinement reduced.
Alejandro admitted committing felony commercial burglary. The juvenile court adjudged him a ward and ordered him confined for a maximum period of three years. After Proposition 47 passed, Alejandro filed a petition arguing his commercial burglary offense was now a misdemeanor shoplifting offense with a maximum confinement of six months, which he had already served. Alejandro requested that he be released from custody and that his offense be reclassified as a misdemeanor. The superior court ruled that Alejandro's commercial burglary offense would be misdemeanor shoplifting under Proposition 47 and reduced his term of confinement under Welfare and Institutions Code section 726, which specifically prohibits punishing juveniles more severely than adults. However, the court declined to reclassify Alejandro's offense to a misdemeanor because it believed Proposition 47's reclassification provisions only applied to adults. Alejandro filed a petition for writ of mandate. Held: Peremptory writ issued. Penal Code section 1170.18, enacted by Proposition 47, allows individuals with certain felony "convictions" to be resentenced to misdemeanors. Although juveniles suffer "adjudications," and not "convictions," Proposition 47's substantive offense reclassification provisions apply to juvenile offenders under Welfare and Institutions Code section 602, which provides that jurisdiction over juvenile defenders is based on the codes defining substantive criminal offenses in the adult context. Section 1170.18 directly involves changes to substantive offenses defined by the Penal Code and, under the plain language of section 602, changes effectuated in these substantive offenses apply to juvenile wardships.

On remand, the minor may be eligible for DNA expungement. After Alejandro admitted his felony burglary offense, the juvenile court ordered him to provide a DNA sample for inclusion in the DOJ DNA database. When he filed his Proposition 47 petition, he also requested that his DNA materials be removed from the DOJ DNA database. The court denied his request for DNA expungement, ruling that reduction of an offense from a felony to a misdemeanor under Proposition 47 did not provide a basis for DNA expungement. The Court of Appeal disagreed. Penal Code sections 296 and 296.1 authorize the collection of a DNA sample under a variety of circumstances, including when a person incurs a felony juvenile adjudication. However, these statutes do not authorize the collection of a DNA sample based solely on the commission of a misdemeanor. After reviewing the plain language of section 1170.18 and applying rules of statutory construction, the Court of Appeal concluded that "the voters did not intend that a reclassified misdemeanor offense be deemed a felony for purposes of retention of DNA samples." The fact that reclassification of a felony to a misdemeanor is not among the grounds listed in Penal Code section 299 for DNA expungement does not change this conclusion. Because the Court of Appeal could not determine from the record whether there was another statutory basis to retain Alejandro's DNA sample, the superior court was directed to reconsider his expungement request on remand.

People v. Pinon (2015) 238 Cal.App.4th 1232 (G051212)
When resentencing a defendant under Proposition 47 (Pen. Code, § 1170.18), the trial may not impose a parole term that exceeds the scheduled end date of the defendant's post release community supervision (PRCS).
In 2011, Pinon pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364). He was sentenced to 16 months in prison. After his release from prison, Pinon was placed on PRCS that was set to expire in April 2015. Thereafter, the voters passed Proposition 47 and, in December 2014, Pinon filed a petition to reduce his felony possession of methamphetamine conviction to a misdemeanor. The court granted his petition, gave him credit for time served, but, over his objection, imposed one year of parole that would extend through December 2015. Pinon appealed, arguing that the court should have imposed a shorter period of parole. Held: Reversed and remanded. Resentencing under Proposition 47 cannot "result in the imposition of a term longer than the original sentence." (Pen. Code, § 1170.18, subd. (e).) After applying statutory construction principles, the Court of Appeal concluded that "[p]ermitting a court to impose a full year of parole supervision even beyond that to which the defendant was subject under a felony sentence would render the punishment more severe with no apparent justification at all." The proper calculation "is to apply excess custody credits to the one-year period of parole, and if that parole term exceeds what remains on PRCS, to reduce the parole period to coincide with the end date of defendant's PRCS." The court also struck the requirement to register pursuant to Health and Safety Code section 11590, which limits registration to felony convictions.

People v. DeHoyos (2015) 238 Cal.App.4th 363, REVIEW GRANTED 9/30/2015 (S228230/D065961)
A defendant currently serving a sentence for an offense listed in Proposition 47 whose case was not final when Proposition 47 was enacted is not entitled to automatic reduction of felony conviction to a misdemeanor on appeal.
DeHoyos was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony, and granted probation. She appealed. While her appeal was pending, voters passed Proposition 47, which in part amended section 11377 to reduce the offense to a misdemeanor for qualified defendants. Proposition 47 also created a new sentencing procedure whereby a person "currently serving" a felony sentence for an offense listed in Proposition 47 may petition for reduction of sentence (Pen. Code, § 1170.18, subd. (a)). On appeal, DeHoyos argued that Proposition 47 applied retroactively to her and that she was entitled to resentencing under the amended version of section 11377 without following the procedure outlined in section 1170.18. Held: Proposition 47 does not apply retroactively on appeal. Under In re Estrada (1965) 63 Cal.2d 740, a legislative amendment that ameliorates punishment is presumed to apply to all cases not yet final unless there is a savings clause providing for prospective application. Proposition 47 lessens criminal punishment and there is no savings clause. However, the language of Proposition 47 reflects an intent for prospective, not retroactive, application because it authorizes consideration of resentencing in qualified cases and requires a thorough review of the defendant's criminal history to allow resentencing only for those defendants whose history and risk assessment warrants it. DeHoyos was not entitled to automatic application of Proposition 47 and must follow the resentencing procedure provided in section 1170.18 by filing a petition in the trial court.

People v. Awad (2015) 238 Cal.App.4th 215 (G050579)
When read in conjunction with Proposition 47, Penal Code section 1260 authorizes the Court of Appeal to stay an appeal and grant a limited remand to the trial court to hold a Penal Code section 1170.18 resentencing hearing.
A jury convicted Awad of multiple counts of forgery and grand theft and he appealed. While his appeal was pending, voters passed Proposition 47, which reduced certain felonies to misdemeanors for qualified defendants, in November 2014. Awad petitioned for resentencing on one of his forgery counts. The trial court found it lacked jurisdiction to hear the petition while Awad's appeal was pending. Awad filed a second notice of appeal from the denial of his Proposition 47 petition. He asked to expedite his appeal. The Court of Appeal requested briefing on whether it had authority to order a limited remand during the pendency of the first appeal to allow the trial court to rule on Awad's Proposition 47 petition, and consolidated the two appeals. Held: Appeal stayed; limited remand ordered. Ordinarily the filing of a notice of appeal deprives the trial court of jurisdiction until the remittitur issues. The purpose of this requirement is to protect the appellate court's jurisdiction by preserving the status quo. But in appropriate circumstances, the same criminal case may be simultaneously pending in both the superior court and the Court of Appeal. Section 1260 allows the Court of Appeal to order a limited remand as one of the available remedies in reviewing criminal appeals. "The criminal remittitur statute (§ 1265, subd. (a)) does not apply to this nondispositive interlocutory order." This interpretation promotes the intent behind Proposition 47–to save money and to release lower level nonviolent offenders.

People v. Lopez (2015) 238 Cal.App.4th 177 (H040726)
A defendant's eligibility for Proposition 47 resentencing should be addressed to the trial court in the first instance, not to the Court of Appeal.
Lopez was charged with drug offenses in two different cases; the only felonies alleged were possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He pled no contest and admitted all allegations, which included a strike prior (a Pen. Code, § 288, subd. (b)(1) offense). His Romero request to strike his serious felony prior was denied and he was sentenced to prison. On appeal, Lopez requested that the court reverse the judgments and remand his case for a Proposition 47 hearing (Pen. Code, § 1170.18) to reduce his felonies to misdemeanors. The People countered that Lopez was ineligible for resentencing because his prior section 288, subdivision (b)(1) conviction disqualifies him from Proposition 47 relief. Held: Affirmed. "As relevant here, Proposition 47 amended section 11377 of the Health and Safety Code" to reduce the offense from a wobbler to a misdemeanor for qualified defendants. A defendant may be ineligible for resentencing if he has certain enumerated felonies, is required to register as a sex offender, or is found by the court to pose an unreasonable risk to public safety if resentenced. (See Pen. Code, § 1170.18, subds. (b), (i).) However, it is not for the Court of Appeal to decide whether or not a defendant is eligible for resentencing, or to remand the matter to the trial court for such a hearing. Proposition 47 provides a procedure for defendants to petition for resentencing in the trial court (Pen. Code, § 1170.18, subd. (a)) and it is the trial court which determines a defendant's eligibility for reduction in sentence. Lopez may file the appropriate petition in the trial court. The pendency of the appellate proceedings would necessarily constitute good cause for a filing delay.

People v. Morales (2015) 238 Cal.App.4th 42, REVIEW GRANTED 8/26/2015 (S228030/G051142)
A Proposition 47 petitioner who has completed a prison term but is still on postrelease community supervision (PRCS) is still "serving a sentence" such that the trial court may impose parole during resentencing.
In March 2014, Morales pled guilty to felony possession of drugs and was sentenced to 16 months in state prison. In August 2014, he was released to PRCS for three years. After Proposition 47 passed in November 2014, he petitioned to have his felony conviction reclassified as a misdemeanor. The trial court granted his petition, and imposed one year of parole. Morales appealed, claiming the trial court had no authority to order parole. Held: Parole term affirmed. Proposition 47 makes certain drug and theft-related felonies misdemeanors, unless the defendant is statutorily disqualified for resentencing. Penal Code section 1170.18, provides for two distinct remedies: (1) A person who is "currently serving" a felony sentence, whether by trial or plea, may petition for resentencing and, if resentenced, shall be given credit for time served and be subject to parole for one year following completion of his sentence, unless the court releases the person from parole (Pen. Code, § 1170.18, subd. (a), (d)), or (2) A person who has completed his sentence may file an application to have his offense designated as a misdemeanor (Pen. Code, § 1170.18, subd. (f)). Here, the Court of Appeal concluded that a person who completed a prison sentence but is still on PRCS is still "serving a sentence" for the felony and thus subject to the parole requirement. Penal Code section 3000, subdivision (a)(1) provides that a prison sentence shall include a period of parole or PRCS. The sentence referred to in section 1170.18, subdivision (a) is the felony sentence, which includes PRCS.

Defendant's excess custody credits may be applied to reduce his parole term. Morales also argued that his excess custody credits should reduce the parole term. The Court of Appeal agreed. Generally, excess custody credits reduce parole. (In re Sosa (1980) 102 Cal.App.3d 1002.) It must be assumed the voters had this in mind when Proposition 47 was enacted. Excess credits may also reduce fines imposed on the defendant (Pen. Code, § 2900.5, subd. (a)). The case was remanded to the trial court with instructions to recalculate Morales' parole period in light of his custody credits. [Editor's Note: The Court disagreed with the decision in People v. Hickman (2015) 237 Cal.App.4th 984, which reached the opposite result and concluded Sosa credits do not apply to Prop. 47 parole.]

People v. Hickman (2015) 237 Cal.App.4th 984, REVIEW GRANTED 8/26/2015 (S227964/B260928)
Following a Proposition 47 resentencing, a trial court may, in its discretion, order one year of supervised parole without consideration of presentence custody credits.
In 2007, Hickman pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) with three prison priors (Pen. Code, § 667.5, subd. (b)) and was granted probation. His probation was revoked in 2012 and he served two years in prison. After he was released on parole, Hickman filed a Proposition 47 petition to reduce his possession of methamphetamine conviction from a felony to a misdemeanor. The superior court granted his petition, resentenced Hickman to one year in county jail with credit for time served, and placed Hickman on one year parole pursuant to Penal Code section 1170.18, subdivision (d). The trial court refused to deduct Hickman's excess custody credits from the one year parole period. He appealed. Held: Affirmed. A parole period can generally be reduced by excess custody credits. (In re Sosa (1980) 102 Cal.App.3d 1002, 1005-1006.) This rule is based on Penal Code section 2900.5, subdivision (c), which provides, in part, that a "term of imprisonment" includes any period of imprisonment and parole. Here, the Court of Appeal concluded that "Proposition 47 parole supervision, which is a form of misdemeanor parole, is not a term of imprisonment within the meaning of section 2900.5, subdivision (c)." (Cf. People v. Espinoza (2014) 226 Cal.App.4th 635, 638-639.) This conclusion is consistent with Couzens and Bigelow's analysis of Proposition 47's one-year parole period. Such a rule does not violate equal protection even though it results in more lenient parole rules for violent felony offenders than it does for nonviolent drug offenders resentenced under Proposition 47 because nonviolent drug offenders and violent felony offenders are not similarly situated.

People v. Contreras (2015) 237 Cal.App.4th 868 (H040903)
Appellant was unable to obtain Proposition 47 relief on appeal in the first instance because there were unresolved factual issues related to his eligibility for resentencing that needed to be decided by the trial court.
While Contreras' appeal was pending, California voters enacted Proposition 47. In a supplemental opening brief, Contreras argued that the Court of Appeal should reduce both his felony convictions to misdemeanors because Proposition 47's provisions apply retroactively to cases, like his, which are not yet final on direct review. The Court of Appeal rejected the argument without deciding whether Proposition 47 applies retroactively because the record on appeal was incomplete. Contreras had filed Proposition 47 petitions in the trial court, and at least one was denied. These petitions and the trial court's order were not part of the record in this appeal and are the subject of a separate pending appeal. There were also numerous factual issues that needed to be resolved by the trial court in the first instance before Proposition 47 relief could be provided. For example, Contreras's felony conviction for second degree commercial burglary could be reduced to misdemeanor shoplifting under Proposition 47, but a finder of fact must first determine that the seven pairs of jeans he stole from Sears were valued at less than $950 and that he stole them during regular business hours. Furthermore, a finder of fact must determine that Contreras would not pose an unreasonable risk of danger to public safety if resentenced to misdemeanors. Such factual questions are not for an appellate court and must be made in the first instance by the trial court. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.)

People v. Shabazz (2015) 237 Cal.App.4th 303 (B255297)
In enacting Proposition 47, the voters expressly intended that qualified defendants file a petition or application in the superior court seeking to reduce certain felonies to misdemeanors; the Court of Appeal is not permitted to reduce a conviction.
Shabazz was convicted of possessing methamphetamine and receiving stolen property. He completed his sentence for his convictions. While his appeal was pending, Proposition 47 was passed. Shabazz asked the Court of Appeal to reduce his qualified convictions to misdemeanors. Held: Affirmed. Proposition 47 made certain drug and theft felonies misdemeanors, including the offenses for which Shabazz was convicted. The voters enacted procedures to permit the retroactive application of Proposition 47 and did not intend that Proposition 47 would automatically allow an appellate court to reduce qualified felonies to misdemeanors. A defendant is limited to the statutory remedy set forth in Penal Code section 1170.18 and must first file a petition or application in the trial court. Shabazz must file an application in the trial court to designate his felonies as misdemeanors. Because Shabazz has finished serving his sentence, his application must be granted if he has no disqualifying priors. This procedure "insures the eligibility determination is made in a hearing where the prosecution is on notice of the existence of the disqualifying prior issue." [Editor's Note: The court put aside the question of whether jurisdiction remains in the trial court to entertain a Prop. 47 petition/application while a direct appeal is pending.]

T.W. v. Superior Court (2015) 236 Cal.App.4th 646 (A144528)
Petitioner whose sentence resulted from a plea bargain was entitled to petition for resentencing under Proposition 47.
T.W. was first made a ward of the juvenile court in July 2010. A supplemental petition was filed in July 2013, alleging felony violations of Penal Code section 211 (robbery) and section 496 (receiving stolen property). The minor admitted the receiving stolen property offense, and the robbery was dismissed. The case was then transferred to Contra Costa County (T.W.'s legal residence) for disposition. In November 2014, T.W. filed a petition for modification (Welf. & Inst. Code, § 778) based on Proposition 47. The trial court did not act on the petition because the disposition was a result of a negotiated plea. T.W. sought writ relief. Held: Writ of mandate issued. Penal Code Section 1170.18, subdivision (a) (statutory implementation of Prop. 47) allows a person serving a sentence for a felony conviction "whether by trial or plea" for an offense which is now a misdemeanor under Proposition 47, to petition for recall of the sentence and request resentencing. Proposition 47 reduced the crime of receiving stolen property worth less than $950 to a misdemeanor. Based on the plain language of the statute, T.W. was entitled to petition for modification even though his sentence was the result of a plea agreement. The appellate court vacated the order and remanded for the trial court to determine whether resentencing is appropriate.

People v. Lynall (2015) 233 Cal.App.4th 1102 (H041737)
Court of Appeal has jurisdiction where a defendant was charged with a felony and the offense was ultimately reduced to a misdemeanor pursuant to Proposition 47 as part of plea negotiations.
An information charged Lynall with felony possession of methamphetamine (Health & Saf. Code, § 11377) and two misdemeanors. Shortly thereafter, Proposition 47 passed and the trial court amended the information to reflect that the methamphetamine possession charge "is now, by operation of law a misdemeanor." Lynall then pled guilty to that offense and the two other misdemeanors were dismissed. The court imposed a conditional sentence with Proposition 36 probation. Lynall appealed to the appellate division of the superior court, but the clerk believed this was an error and sent the notice of appeal to the Court of Appeal. The Court of Appeal asked the parties to brief whether it or the appellate division had jurisdiction over the appeal. Held: The Court of Appeal possesses jurisdiction. In this companion case to People v. Rivera (2015) 233 Cal.App.4th 1085, the court considered the issue of appellate jurisdiction in Proposition 47 cases in a different procedural context. This case did not involve either resentencing or the designation of a prior felony conviction as a misdemeanor under Penal Code section 1170.18 (Prop. 47). Instead, the parties agreed that Lynall's charge would be reduced to a misdemeanor pursuant to Proposition 47 as part of a plea agreement. After examining the relevant statutes and rules (Pen. Code, §§ 691, 17, subd. (b); Cal. Rules of Court, rule 8.304), the appellate court concluded that Lynall's case was a "felony case" for purposes of appellate jurisdiction. The information charged Lynall with a felony and, although his offense was ultimately reduced to a misdemeanor as part of plea negotiations and declared a misdemeanor by the trial court, it still meets the rule 8.304(a)(2)(C) definition of a felony case.

People v. Rivera (2015) 233 Cal.App.4th 1085 (H041742)
Court of Appeal has jurisdiction over case in which appellant was charged with a felony offense and then later resentenced as a misdemeanant under Penal Code section 1170.18 (Prop. 47).
Rivera pled no contest to felony possession of a controlled substance (Health & Saf. Code, § 11350) and was placed on probation. During a probation violation proceeding, the court imposed a 16-month term on the felony possession offense. The court then granted Rivera's petition for resentencing under Proposition 47, designated his offense as a misdemeanor, and imposed a jail sentence. Rivera appealed and the Court of Appeal requested briefing on the issue of whether it or the appellate division of the superior court possessed jurisdiction to hear an appeal after Proposition 47 resentencing. Held: The Court of Appeal has jurisdiction. The appellate division has jurisdiction over appealable orders from "misdemeanor cases" and the Court of Appeal has jurisdiction over appealable orders from "felony cases." To determine whether a case is a felony case or a misdemeanor case, the court looks at the charging document. (Pen. Code, § 691; Cal. Rules of Court, rule 8.304.) If a felony is charged, the case is a felony case for purposes of appellate jurisdiction. This includes cases in which a wobbler offense is filed as a felony, but is later deemed a misdemeanor. (See Pen. Code, § 17, subd. (b).) Applying these statutes and rules, the court held that Rivera’s case was a felony case for purposes of appellate jurisdiction. Rivera was charged with a felony and the later designation of the offense as a misdemeanor under Proposition 47 did not retroactively convert his case. Although Proposition 47 states that a felony conviction designated as misdemeanor under its provisions "shall be a misdemeanor for all purposes" (Pen. Code, § 1170.18, subd. (k)), similar language in Section 17, subdivision (b) has not been interpreted to divest the Court of Appeal of jurisdiction.

People v. Noyan (2014) 232 Cal.App.4th 657 (C074049)
Appellant seeking sentence reduction under Proposition 47 must first file petition for recall of sentence (Pen. Code, § 1170.18) in the trial court.
Noyan was charged with a number of offenses in four different cases. In a petition for rehearing, he argued that the provisions of recently enacted Proposition 47 apply retroactively to his case and reduce his Health and Safety Code section 11350 convictions from felonies to misdemeanors, given that he does not have a disqualifying prior conviction. Citing People v. Yearwood (2013) 213 Cal.App.4th 161, 170, 177, the Court of Appeal concluded that Noyan is limited to the statutory remedy of petitioning for recall of sentence in the trial court once his judgment is final, pursuant to section 1170.18.

 

 

 

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