DISCUSSION

We interpret voter initiatives like Proposition 47 de novo, applying the same

principles that govern construction of statutes passed by the Legislature. (People v.

Perkins (2016) 244 Cal.App.4th 129, 136.) “‘The fundamental purpose of statutory

construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of

the law. [Citations.]’” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) “In

determining intent, we look first to the words themselves. [Citations.] When the

language is clear and unambiguous, there is no need for construction. [Citations.] When

the language is susceptible of more than one reasonable interpretation, however, we look

to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to

be remedied, the legislative history, public policy, contemporaneous administrative

construction, and the statutory scheme of which the statute is a part. [Citations.]”

(People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.)

3 Sanders contends the superior court erred by denying his request to strike the

one-year enhancement of his 2010 sentence that was based on his 2008, now reclassified,

drug conviction after his 2010 conviction was final and he had begun serving his prison

sentence. Several courts have found Proposition 47 does not apply retroactively to Penal

Code section 667.5, subdivision (b) enhancements in cases where the judgment imposing

the enhancement has become final.1 We reach the same conclusion.

Proposition 47 changed portions of the Penal Code to reclassify as misdemeanors

“certain drug- and theft-related offenses” that were previously punishable as felonies or

wobblers. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Proposition 47 also

created two procedures making those changes available to offenders who had previously

been convicted of reclassified offenses. (§ 1170.18;2 Alejandro N. v. Superior Court

(2015) 238 Cal.App.4th 1209, 1217.) If the offender is “currently serving a sentence for

a conviction” of a felony that “would have been . . . a misdemeanor” had Proposition 47

been in effect at the time of the offense, he “may petition for a recall of sentence before

the trial court that entered the judgment of conviction in his or her case.” (§ 1170.18,

subd. (a), italics added.) If the offender “has completed his or her sentence,” he or she

“may file an application before the trial court that entered the judgment of conviction in

1 The California Supreme Court has granted review on several of these cases. (See People v. Valenzuela, review granted Mar. 30, 2016, S232900; People v. Carrea, review granted Apr. 27, 2016, S233011; People v. Williams, review granted May 11, 2016, S233539; People v. Ruff, review granted May 24, 2016, S233201.)

2 Unlabeled statutory citations refer to the Penal Code.

4 his or her case to have the felony conviction or convictions designated as misdemeanors.”

(§ 1170.18, subd. (f).) Section 1170.18, subdivision (k), further provides, “Any felony

conviction that is recalled and resentenced under subdivision (b) or designated as a

misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes,”

except for ownership of a firearm.

Section 667.5 requires “[e]nhancement of prison terms for new offenses because

of prior prison terms.” Under subdivision (b), “where the new offense is any felony for

which a prison sentence or a sentence of imprisonment in a county jail under subdivision

(h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any

other sentence therefor, the court shall impose a one-year term for each prior separate

prison term or county jail term.” (§ 667.5, subd. (b).)

Nothing in the plain language of Proposition 47 provides a remedy for someone

who is currently serving a sentence for an enhancement and not a conviction. Section

1170.18 refers only to convictions and persons who are currently serving, or who have

already served, sentences for convictions. Sanders is not currently serving a sentence on

the convictions that were reclassified to misdemeanors; he is serving on the

enhancements. Nothing in the language of section 1170.18 provides a procedure for

reaching back and resentencing on an enhancement when a case is final and the current

conviction is ineligible for resentencing.

Moreover, nothing in the language of section 1170.18 indicates voters intended it

to be applied retroactively to enhancements on convictions that are final and do not

5 qualify under Proposition 47. Section 3 specifies that no part of the Penal Code “is

retroactive, unless expressly so declared.” “[T]he language of section 3 erects a strong

presumption of prospective operation, codifying the principle that, ‘in the absence of an

express retroactivity provision, a statute will not be applied retroactively unless it is very

clear from extrinsic sources that the Legislature [or electorate] . . . must have intended a

retroactive application.’ [Citations.] Accordingly, ‘ “a statute that is ambiguous with

respect to retroactive application is construed . . . to be unambiguously prospective.” ’ ”

(People v. Brown (2012) 54 Cal.4th 314, 324.)

Section 1170.18 provides no express retroactive provision except as previously

discussed regarding reducing a conviction on which a sentence is currently being served.

Moreover, section 1170.18, subdivision (n) provides, “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.” The intent from the language is clear; it was not to

disturb final judgments of conviction which do not fall under Proposition 47. Here,

Sanders was convicted of several offenses the parties agree are not affected by

Proposition 47. There is no language in section 1170.18 indicating it was intended to

have the retroactive collateral consequences Sanders requests.

Contrary to Sanders’ contention, People v. Flores (1979) 92 Cal.App.3d 461

(Flores) does not support a different conclusion. In Flores, the defendant was convicted

in 1977 for the sale of heroin and his sentence was enhanced due to a 1966 felony

conviction for the possession of marijuana. (Id. at pp. 470-471.) However, in 1976, the

6 Legislature amended the statute, reducing the punishment for possession of marijuana to

a misdemeanor. On direct appeal of the 1977 sale of heroin conviction, the appellate

court found the 1976 amendment applied to all new sentences and the enhancement could

not be imposed. (Id. at pp. 470-474.) Flores does not authorize the retroactive

application Sanders seeks in this case. In Flores, the retroactivity/reduction in

punishment issue arose on appeal of the current crimes, whereas here, Sanders’ 2010

conviction and sentence was final long before Proposition 47’s enactment.

Sanders also relies on People v. Park (2013) 56 Cal.4th 782 (Park), which is

distinguishable from this case.3 In Park, the defendant’s sentence for his current crimes

included a five-year enhancement under section 667, subdivision (a) for a prior serious

felony conviction. Before the defendant committed his current crimes, the trial court

reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3), and then

dismissed it pursuant to section 1203.4, subdivision (a)(1). (Park, at pp. 787-788.) On

review of his current convictions, the appellate court held the conviction for the prior

offense remained a prior serious felony for purposes of sentence enhancement under

section 667, subdivision (a), but the California Supreme Court disagreed. “[W]hen the

court in the prior proceeding properly exercised its discretion by reducing the . . .

conviction to a misdemeanor, that offense no longer qualified as a prior serious felony

3 Sanders relies on People v. Buycks (2015) 241 Cal.App.4th 519; however, the California Supreme Court granted review of that case after Sanders filed his brief, rendering the case superseded and not citable. (Ibid., review granted Jan. 20, 2016, S231765; Cal. Rules of Court, rule 8.1105(e)(1).)

7 within the meaning of section 667, subdivision (a), and could not be used, under that

provision, to enhance defendant’s sentence.” (Park, at p. 787, first italics added.) The

situation is different in this case. Here, the prior conviction was not reduced to a

misdemeanor until after Sanders committed the new felony offense, and after the

sentence for that new offense was final. Park is not controlling where a sentence is final

and thereafter a prior conviction which was used as an enhancement is reduced to a

misdemeanor.

We conclude section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow

offenders to request and courts to grant retroactive designation of offenses such as

Sanders’ prison prior, but no provision allows offenders to request, or courts to order, the

retroactive striking of an enhancement based on a redesignated prior offense. Absent

such an express provision, we cannot apply the statute retroactively. (§ 3.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

P. J.

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MILLER

J.

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