Filed 2/17/16 P. v. King CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068424
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234016)
TERRANCE KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marvin
Mizell and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Terrance King appeals from an order denying his petition to dismiss a prior prison
term enhancement from his sentence. He contends the prison prior sentence
enhancement must be stricken because, in May 2015, the trial court re-designated the 2007 prior felony conviction on which the prison prior enhancement was based to a
misdemeanor pursuant to Penal Code, section 1170.18, subdivision (k). (Undesignated
statutory references are to the Penal Code.) King argues the plain language of
Proposition 47 and the voters' intent requires this court to strike the prison prior
enhancement. He further argues that failure to strike the enhancement violated his right
to equal protection. We reject King's arguments and affirm.
King also filed a petition for writ of habeas corpus (In re Terrance King
(D069184)), which we ordered considered with this appeal. We deny the petition by
separate order. We also deny King's motion to consolidate the appeal with the petition.
PROCEDURAL BACKGROUND
In August 2011, King pleaded guilty to evading an officer with reckless driving
and admitted to a strike prior and two prison priors. One of those prison priors pertained
to a 2007 felony conviction for possession of a controlled substance in violation Health
and Safety Code, section 11350, subdivision (a). The court sentenced King to eight years
in prison, which consisted of six years for the evading offense and two one-year terms for
the prison prior enhancements.
In 2015, King filed a petition for writ of habeas corpus in the superior court to
reduce his 2007 possession of a controlled substance conviction to a misdemeanor under
section 1170.18. King also requested that the court strike the one-year prison prior
enhancement based on the 2007 conviction from his current sentence in the evading an
officer case. The trial court granted King's request to re-designate the 2007 conviction to
a misdemeanor, but denied his request to strike the prison prior sentence enhancement.
2 DISCUSSION
I. Prison Prior Enhancement
King argues the prison prior enhancement based on his 2007 possession of a
controlled substance conviction must be stricken because that conviction was reduced to
a "misdemeanor for all purposes" under section 1170.18, subdivision (k). Specifically, he
contends the plain language of section 1170.18 and the voters' intent in passing
Proposition 47 establish that a prior prison enhancement cannot be based on a conviction
that has been re-designated a misdemeanor. He also contends the trial court has
jurisdiction under section 1170.18 to strike the prison prior enhancement.
A. General Legal Principles
King's claim raises an issue of statutory interpretation. "[S]tatutory interpretation
is a question of law [citation], and appellate courts review such issues independently."
(People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1091.) "Measures adopted by the
voters through the initiative process . . . are subject to the ordinary rules and canons of
statutory construction." (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach
(2001) 86 Cal.App.4th 534, 549.)
Section 667.5, subdivision (b) provides for a sentence enhancement for felony
prison priors. (People v. Torres (2011) 198 Cal.App.4th 1131. 1149.) Specifically, that
section provides, "where the new offense is any felony for which a prison sentence . . . is
imposed . . . , in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term . . . for any felony." (§ 667.5,
subd. (b).) "Sentence enhancements for prior prison terms are based on the defendant's
3 status as a recidivist, and not the underlying criminal conduct, or the act or omission,
giving rise to the current conviction." (People v. Gokey (1998) 62 Cal.App.4th 932, 936.)
On November 4, 2014, California voters approved Proposition 47, which became
effective the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The
initiative reclassified certain theft- and drug-related crimes from felonies to
misdemeanors unless they were committed by ineligible defendants. (Id. at p. 1091.) It
also established a procedure for qualifying defendants to petition for recall and
modification of their prior convictions and sentences. (§ 1170.18, subd. (a).)
Under the initiative's resentencing and reclassification mechanism, persons who
have completed felony sentences for offenses that would be misdemeanors under
Proposition 47 may file an application to have their felony convictions "designated as
misdemeanors." (§ 1170.18, subds. (f)-(h).) Subdivision (k) of section 1170.18 provides
that convictions that are resentenced or designated as a misdemeanor "shall be considered
a misdemeanor for all purposes," except for purposes relating to ownership, possession
and custody of firearms.
B. Analysis
King's arguments are nearly identical to those rejected by this Court in People v.
Valenzuela (Feb. 3, 2016, D066907) ___ Cal.App.4th ___ [pp. 22-25] (Valenzuela). In
that case, the Court considered defendant's request to strike a prison prior enhancement
based on a felony conviction that had been reduced to a misdemeanor under section
1170.18 after the imposition of sentence on the current offense. (Valenzuela, supra, at
___ [pp. 20, 22].) The defendant argued that section 1170.18, subdivision (k), " 'suggests
4 the electorate wanted eligible offenders like [her] to be shielded from the collateral
consequences of prior prison terms stemming from felonies that the law now recognizes
as misdemeanors.' " (Id. at p. 22.) This Court rejected the argument, concluding
"[s]ection 1170.18 provides a mechanism for reducing felony convictions to
misdemeanors, but contains no procedure for striking a prison prior if the felony
underlying the enhancement has subsequently been reduced to a misdemeanor." (Ibid.)
The Court reasoned that "[n]othing in th[e] language [of section 1170.18, subdivision (k)]
or the ballot materials for Proposition 47 indicates that this provision was intended to
have the retroactive collateral consequences that [the defendant] advances. To the
contrary, . . . the procedures set forth in section 1170.18 that must be followed to obtain
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Filed 2/17/16 P. v. King CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068424
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234016)
TERRANCE KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Marvin
Mizell and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Terrance King appeals from an order denying his petition to dismiss a prior prison
term enhancement from his sentence. He contends the prison prior sentence
enhancement must be stricken because, in May 2015, the trial court re-designated the 2007 prior felony conviction on which the prison prior enhancement was based to a
misdemeanor pursuant to Penal Code, section 1170.18, subdivision (k). (Undesignated
statutory references are to the Penal Code.) King argues the plain language of
Proposition 47 and the voters' intent requires this court to strike the prison prior
enhancement. He further argues that failure to strike the enhancement violated his right
to equal protection. We reject King's arguments and affirm.
King also filed a petition for writ of habeas corpus (In re Terrance King
(D069184)), which we ordered considered with this appeal. We deny the petition by
separate order. We also deny King's motion to consolidate the appeal with the petition.
PROCEDURAL BACKGROUND
In August 2011, King pleaded guilty to evading an officer with reckless driving
and admitted to a strike prior and two prison priors. One of those prison priors pertained
to a 2007 felony conviction for possession of a controlled substance in violation Health
and Safety Code, section 11350, subdivision (a). The court sentenced King to eight years
in prison, which consisted of six years for the evading offense and two one-year terms for
the prison prior enhancements.
In 2015, King filed a petition for writ of habeas corpus in the superior court to
reduce his 2007 possession of a controlled substance conviction to a misdemeanor under
section 1170.18. King also requested that the court strike the one-year prison prior
enhancement based on the 2007 conviction from his current sentence in the evading an
officer case. The trial court granted King's request to re-designate the 2007 conviction to
a misdemeanor, but denied his request to strike the prison prior sentence enhancement.
2 DISCUSSION
I. Prison Prior Enhancement
King argues the prison prior enhancement based on his 2007 possession of a
controlled substance conviction must be stricken because that conviction was reduced to
a "misdemeanor for all purposes" under section 1170.18, subdivision (k). Specifically, he
contends the plain language of section 1170.18 and the voters' intent in passing
Proposition 47 establish that a prior prison enhancement cannot be based on a conviction
that has been re-designated a misdemeanor. He also contends the trial court has
jurisdiction under section 1170.18 to strike the prison prior enhancement.
A. General Legal Principles
King's claim raises an issue of statutory interpretation. "[S]tatutory interpretation
is a question of law [citation], and appellate courts review such issues independently."
(People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1091.) "Measures adopted by the
voters through the initiative process . . . are subject to the ordinary rules and canons of
statutory construction." (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach
(2001) 86 Cal.App.4th 534, 549.)
Section 667.5, subdivision (b) provides for a sentence enhancement for felony
prison priors. (People v. Torres (2011) 198 Cal.App.4th 1131. 1149.) Specifically, that
section provides, "where the new offense is any felony for which a prison sentence . . . is
imposed . . . , in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term . . . for any felony." (§ 667.5,
subd. (b).) "Sentence enhancements for prior prison terms are based on the defendant's
3 status as a recidivist, and not the underlying criminal conduct, or the act or omission,
giving rise to the current conviction." (People v. Gokey (1998) 62 Cal.App.4th 932, 936.)
On November 4, 2014, California voters approved Proposition 47, which became
effective the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The
initiative reclassified certain theft- and drug-related crimes from felonies to
misdemeanors unless they were committed by ineligible defendants. (Id. at p. 1091.) It
also established a procedure for qualifying defendants to petition for recall and
modification of their prior convictions and sentences. (§ 1170.18, subd. (a).)
Under the initiative's resentencing and reclassification mechanism, persons who
have completed felony sentences for offenses that would be misdemeanors under
Proposition 47 may file an application to have their felony convictions "designated as
misdemeanors." (§ 1170.18, subds. (f)-(h).) Subdivision (k) of section 1170.18 provides
that convictions that are resentenced or designated as a misdemeanor "shall be considered
a misdemeanor for all purposes," except for purposes relating to ownership, possession
and custody of firearms.
B. Analysis
King's arguments are nearly identical to those rejected by this Court in People v.
Valenzuela (Feb. 3, 2016, D066907) ___ Cal.App.4th ___ [pp. 22-25] (Valenzuela). In
that case, the Court considered defendant's request to strike a prison prior enhancement
based on a felony conviction that had been reduced to a misdemeanor under section
1170.18 after the imposition of sentence on the current offense. (Valenzuela, supra, at
___ [pp. 20, 22].) The defendant argued that section 1170.18, subdivision (k), " 'suggests
4 the electorate wanted eligible offenders like [her] to be shielded from the collateral
consequences of prior prison terms stemming from felonies that the law now recognizes
as misdemeanors.' " (Id. at p. 22.) This Court rejected the argument, concluding
"[s]ection 1170.18 provides a mechanism for reducing felony convictions to
misdemeanors, but contains no procedure for striking a prison prior if the felony
underlying the enhancement has subsequently been reduced to a misdemeanor." (Ibid.)
The Court reasoned that "[n]othing in th[e] language [of section 1170.18, subdivision (k)]
or the ballot materials for Proposition 47 indicates that this provision was intended to
have the retroactive collateral consequences that [the defendant] advances. To the
contrary, . . . the procedures set forth in section 1170.18 that must be followed to obtain
the resentencing and reclassification benefits of Proposition 47 indicate the electorate's
intent for a specific, limited prospective application of the relief available under the new
law." (Ibid.)
Like King, the defendant in Valenzuela, relied on People v. Park (2013) 56
Cal.4th 782, 796 (Park) and People v. Flores (1979) 92 Cal.App.3d 461 (Flores) to
support her assertion that her sentence must be reduced under section 1170.18,
subdivision (k). In Park, our high court noted that "[w]hen the court properly exercises
its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment,
and its consequences, are not appropriate for that particular defendant. . . . [B]y virtue of
the court's proper exercise of discretion, neither is such defendant a member of the class
of criminals convicted of a prior serious felony whom the voters intended to subject to
increased punishment for a subsequent offense." (Park, at pp. 801-802.) In Flores, the
5 court considered a 1975 statutory amendment reducing marijuana possession to a
misdemeanor and held that it was error to use a felony marijuana possession conviction to
impose a sentence enhancement. (Flores, at pp. 470, 474.)
Similarly to the defendant in Valenzuela, King's reliance on Park and Flores is
misplaced because the felony convictions that served as the basis for sentence
enhancements in those cases were reduced to misdemeanors before the defendant
committed and was convicted of the offense subject to the current appeal. (Valenzuela
[Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 23].) In the case before us, there is no
dispute that King's drug offense conviction was reduced to a misdemeanor after he
committed and was sentenced for the current evading an officer offense. Thus, Park and
Flores are inapplicable. Moreover, Park supports our conclusion as the Supreme Court
stated in that case that "there is no dispute that . . . defendant would be subject to the
[sentence] enhancement had he committed and been convicted of the present crimes
before the court reduced the earlier offense to a misdemeanor." (Park, supra, 56 Cal.4th
at p. 802, italics added.)
King has not pointed to anything in the language of section 1170.18 or Proposition
47 ballot materials that overcomes the presumed prospective effect of any provision
added to the Penal Code. (§ 3.) Further, King has not pointed to any authority
convincing us to depart from the reasoning and conclusion in Valenzuela that section
1170.18 does not require the court to strike a prison prior enhancement that is based on a
felony conviction that was reduced to a misdemeanor after the defendant committed and
was convicted of the current offense.
6 II. Equal Protection Claim
King argues that failure to strike the one-year sentence enhancement for the
prison prior which was re-designated a misdemeanor violates his right to equal protection
under the federal and state constitutions. He argues that "no rational basis can justify
[his] exclusion from the benefits of Proposition 47, since he meets the requirements for
relief and only differs from other possession offenders by the fact that his criminal
judgment was issued prior to the passage of the initiative." This argument was rejected in
Valenzuela [Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 25]. We reject it for the
same reason that " ' "[t]he Legislature properly may specify that . . . statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written." [Citations.] The voters have
the same prerogative." ' " (Ibid.) Accordingly, failure to strike the prison prior
enhancement does not constitute an equal protection violation. (Ibid.)
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.