P. v. Wilburn

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Filed 7/18/17 P. v. Wilburn CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHAD RICHARD WILBURN,
Defendant and Appellant.
E065752
(Super.Ct.No. SWF020738)
OPINION
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Jill M. Klein, 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, Theodore M. Cropley and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.

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I
INTRODUCTION
On April 30, 2008, defendant and appellant Chad Richard Wilburn pled guilty to
felony possession of methamphetamine while armed with a loaded, operable firearm
(Health & Saf. Code, § 11370.1). Additionally, he admitted that he committed the
offense while released from custody on bail (Pen. Code, § 12022.1)1 and that he suffered
four prior prison terms (§ 667.5, subd. (b)). In return, the remaining charges were
dismissed and defendant was sentenced to the upper term of four years for the substantive
offense, plus a consecutive term of two years for the on-bail enhancement, plus
consecutive one-year terms for each of the four prior prison terms pursuant to
section 667.5, subdivision (b).
After the enactment of Proposition 47 in November 2014, which reduced certain
felonies to misdemeanors, defendant successfully applied to have two of his four felony
convictions redesignated as misdemeanors. On January 25, 2016, defendant filed in this
case a petition for resentencing pursuant to section 1170.18, asserting that the two felony
convictions now redesignated as misdemeanors pursuant to Proposition 47 could no
longer serve as “felony” convictions to support the one-year sentence enhancements
required by section 667.5, subdivision (b). In short, defendant sought to reduce his
aggregate sentence by two years. The trial court denied defendant’s petition. This appeal
followed.
1 All future statutory references are to the Penal Code unless otherwise stated.

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On appeal, defendant contends: (1) the two prior prison terms must be stricken
and his sentence reduced by two years because, under the rules of statutory construction
of Proposition 47, the two prior prison terms are now misdemeanors “for all purposes”;
(2) Proposition 47 should be applied retroactively because it mitigates punishment; and
(3) failure to strike his two prior prison terms violates his state and federal constitutional
right to equal protection.
We conclude that Proposition 47 does not apply retroactively to previously
imposed section 667.5, subdivision (b) sentence enhancements once a judgment of
conviction attains finality. Nothing in the plain language of Proposition 47 states that it
applies retroactively; there is no evidence that voters intended such a retroactive effect;
and, there is a statutory presumption that amendments to the Penal Code operate
prospectively. Furthermore, we conclude that failing to strike defendant’s prior prison
terms does not violate his equal protection rights. Accordingly, we affirm the trial court’s
ruling.
II
FACTUAL AND PROCEDURAL BACKGROUND
On February 6, 2008, the People filed an information charging defendant with
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1);
possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140; count 2); and
possession of methamphetamine while armed with a loaded, operable firearm (Health &
Saf. Code, § 11370.1; count 3). The information also alleged that in the commission of

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count 3, defendant participated as a principal knowing another principal was armed with
a firearm (Pen. Code, § 12022, subd. (a)(1)) and that defendant was released on bail in
another case (§ 12022.1) when he committed count 3.
On April 30, 2008, the People orally amended the information to include the four
following prior prison term enhancement allegations: (1) a 1997 unlawful taking or
driving a vehicle (Veh. Code, § 10851, subd. (a)); (2) a 1998 petty theft with a prior
(§ 666); (3) a 1999 possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a)); and (4) a 2001 unlawful taking or driving a vehicle with a prior vehicle theft
conviction (Pen. Code, § 666.5).
Defendant thereafter pled guilty to possession of methamphetamine while armed
with a loaded, operable firearm as alleged in count 3. He also admitted that he was
released on bail in another matter when he committed count 3 and that he had suffered
four prior prison terms. In return, the remaining allegations were dismissed and
defendant was sentenced to a total term of 10 years in state prison: the upper term of four
years for the substantive offense, plus a consecutive term of two years for the on-bail
enhancement, plus consecutive one-year terms for each of the four prior prison terms
pursuant to section 667.5, subdivision (b).
Long after the judgment in this case had become final, on November 4, 2014,
California voters approved Proposition 47, the Safe Neighborhoods and Schools Act,
enacting section 1170.18. The statutory amendments set forth in Proposition 47 became
effective the next day.

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Pursuant to Proposition 47, defendant filed section 1170.18 petitions to have two
of his prior felony convictions redesignated as misdemeanors. The trial courts in those
two cases granted defendant’s petitions. On August 24, 2015, the Riverside Superior
Court, in case No. RIF082060, redesignated defendant’s 1998 felony conviction for petty
theft with a prior as a misdemeanor. On October 30, 2015, the San Bernardino County
Superior Court, in case No. FSB024708, redesignated defendant’s 1999 felony
convictions for receiving stolen property and possession of a controlled substance as
misdemeanors.
On January 25, 2016, in this case (case No. SWF020738), while incarcerated in
state prison, defendant filed a petition to recall his sentence and to be resentenced. He
asserted that two of the felony convictions supporting the one-year prior prison term
sentence enhancements had been redesignated as misdemeanors pursuant to
Proposition 47, and that those convictions could no longer serve as felony convictions
under section 667.5, subdivision (b). Defendant’s petition therefore sought to have his
sentence reduced by two years.2
On February 2, 2016, the People filed a response, indicating defendant was not
entitled to the requested relief because Health and Safety Code section 11370.1,
possession of methamphetamine while armed with a firearm, was not a qualifying felony.
2 Defendant utilized a form petition provided by the Riverside Superior Court
and checked the box “Other.” He wrote in “PC 667.5(b) for PC 666” and “PC 667.5(b)
for . . . H&S 11377([a]).” Defendant attached to the form petition a handwritten
“Statement of Facts” wherein he indicated his two prior felony convictions had been
redesignated as misdemeanors.

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On March 10, 2016, the trial court summarily denied defendant’s petition, finding
Health and Safety Code section 11370.1 “is not a qualifying felony.” Defendant timely
appealed.
III
DISCUSSION
A. Statutory and Case Law Background
In 1976, the Legislature enacted section 667.5, subdivision (b), which provides
that for any person convicted of a felony, “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 . . . for any felony.”
In 2014, California voters enacted Proposition 47, which reclassified certain drug
and theft-related felony offenses as misdemeanors. For persons already convicted of one
of these offenses, Proposition 47 provided relief to those persons by creating two new
procedures pursuant to a new section 1170.18 added to the Penal Code.
First, if the person is currently serving the felony sentence, then he or she may
petition for a “recall” of that felony sentence and request resentencing to a misdemeanor
unless the court finds that resentencing would pose an unreasonable risk that the person
will commit a new violent felony. (§ 1170.18, subds. (a)-(c).) Second, if the person has
completed the sentence for the felony conviction, he or she may file an application to
have the felony conviction “[re]designated” as a misdemeanor. (§ 1170.8, subds. (f)-(g).)

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After an individual obtains relief under these two provisions, the statute provides
that any felony conviction recalled pursuant to subdivision (b) or redesignated pursuant to
subdivision (g) “shall be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in his or her custody or
control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).)
The purpose of Proposition 47 is to “ensure that prison spending is focused on
violent and serious offenses,” “maximize alternatives for nonserious, nonviolent crime,”
and “invest the savings generated from this act into prevention and support programs in
K-12 schools, victim services, and mental health and drug treatment.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (hereafter Voter
Information Guide).)
After the enactment of Proposition 47, prisoners began filing section 1170.18
petitions attacking previously imposed section 667.5, subdivision (b) sentence
enhancements based on felony convictions now redesignated as misdemeanors under
Proposition 47. The issue before us is whether a prior prison term enhancement must be
stricken if, after the judgment has become final, the prior conviction upon which the
enhancement was based is reduced from a felony to a misdemeanor. Cases involving
similar issues are pending before our Supreme Court. On February 3, 2016, Division
One of this court issued People v. Valenzuela (2016) 244 Cal.App.4th 692, review was
granted March 30, 2016, S232900; on February 10, 2016, the Fifth District issued People

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v. Ruff (2016) 244 Cal.App.4th 935, review was granted May 11, 2016, S233201; on
February 11, 2016, Division One of this court issued People v. Carrea (2016) 244
Cal.App.4th 966, review was granted April 27, 2016, S233011; on March 3, 2016,
Division Two of the Second District issued People v. Williams (2016) 245 Cal.App.4th
458, review was granted May 11, 2016, S233539; on July 7, 2016, this court issued
People v. Jones (2016) 1 Cal.App.5th 221, review was granted September 14, 2016,
S235901; and on December 15, 2016, this court issued People v. Evans (2016) 6
Cal.App.5th 894, review was granted February 22, 2017, S239635. Recently on February
15, 2017, Division Four of the Second District issued People v. Diaz (2017) 8
Cal.App.5th. 812. All the foregoing appellate opinions concluded that Proposition 47 has
no retroactive effect on previously imposed section 667.5, subdivision (b) sentence
enhancements that are subsequently reduced from felonies to misdemeanors pursuant to
section 1170.18.3 As this court and other appellate courts previously considered and
rejected the same argument, we likewise conclude Proposition 47 does not apply
retroactively to invalidate defendant’s enhancements once a judgment of conviction
attains finality.4
3 We note People v. Isaia (Sept. 23, 2016, G051739) nonpublished opinion,
review granted November 11, 2016, S237778, reached a different conclusion.
4 Although the California Supreme Court granted review in the previously
published cases agreeing that Proposition 47 does not apply retroactively to previously
imposed section 667.5, subdivision (b) sentence enhancements, we cannot divine how the
Supreme Court may decide the issue; at this point, we find persuasive the reasoning
proffered by the other appellate courts.

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B. Standard of Review
The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh
v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) The
principles for interpreting a proposition enacted by popular vote are the same as those
used to interpret a statute enacted by our Legislature. (People v. Park (2013) 56 Cal.4th
782, 796 (Park); People v. Rizo (2000) 22 Cal.4th 681, 685.) “ ‘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; accord, People v. Jones (1993) 5 Cal.4th 1142, 1146.) “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 objectives 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; accord, Robert L. v. Superior Court (2003) 30 Cal.4th
894, 901.) This appeal also requires us to decide whether the principles of equal
protection require striking defendant’s prior prison term sentencing enhancement, a
question we review de novo. (Raef v. Appellate Division of Superior Court (2015) 240
Cal.App.4th 1112, 1120.)

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C. Striking Sentence Enhancements
Defendant contends the trial court erred in denying his request for resentencing as
to his two prior prison term enhancements (§ 667.5, subd. (b)). Defendant argues the trial
court must strike his prior prison terms because, under the principles of statutory
construction, the felony convictions underlying them were reduced to misdemeanors “for
all purposes.” Because it is undisputed that section 667.5, subdivision (b), only imposes
a one-year sentence enhancement for a “felony,” not a misdemeanor, defendant asserts
that section 1170.18 unambiguously prohibits courts from using a redesignated
misdemeanor to trigger application of a section 667.5, subdivision (b) sentence
enhancement.
Defendant also analogizes the statute at issue to the 1975 amendment of Health
and Safety Code section 11357, which reduced the crime of possession of marijuana from
a felony to a misdemeanor. According to People v. Flores (1979) 92 Cal.App.3d 461
(Flores), that new misdemeanor cannot form the basis of a sentence enhancement under
section 667.5, subdivision (b). Similarly, defendant relies on Alejandro N. v. Superior
Court (2015) 238 Cal.App.4th 1209 (Alejandro N.) where our colleagues in Division One
held a juvenile offender was entitled to have his DNA profile expunged from a data bank
after the juvenile’s underlying felony offense was redesignated a misdemeanor.
Defendant also relies on an analogy to section 17, subdivision (b), which provides that
once a court reduces a wobbler to a misdemeanor, that offense is a misdemeanor “for all
purposes.” As stated in Park, supra, 56 Cal.4th 782, that new misdemeanor cannot form

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the basis of a section 667, subdivision (a) sentence enhancement. Defendant argues that
permitting his two felony convictions redesignated as misdemeanors to continue to
support section 667.5, subdivision (b) sentence enhancements is inconsistent with those
court opinions.
For the following reasons, none of defendant’s arguments are persuasive. First,
there is no evidence that the voters, in enacting Proposition 47, intended section 1170.18
to affect section 667.5, subdivision (b) sentence enhancements where the judgment had
become final. The text of section 1170.18 creates no mechanism for obtaining a
resentencing on a felony not affected by Proposition 47 merely because Proposition 47
affected an offense underlying one of its sentence enhancements. Rather, the statute
provides only two specific procedures for persons already sentenced on the applicable
felonies to obtain relief: the “recall” procedure in subdivisions (a)-(b) for persons
currently serving the felony sentence and the “redesignation” procedure in
subdivisions (f)-(g) for persons who completed the felony sentence. Neither of the two
procedures apply here where the judgment had long become final. Defendant’s new
proposed procedure would contravene these express and implied limitations as well as the
general rule that “[o]rdinarily we are not free to add text to the language selected by the
Legislature” or by the voters. (See Hampton v. County of San Diego (2015) 62 Cal.4th
340, 350.)
Next, there is no evidence that the “for all purposes” language recited in
section 1170.18, subdivision (k), applies retroactively where the judgment has become

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final. While the statute prohibits the imposition of future sentence enhancements based
on felony convictions redesignated as misdemeanors, it does not retroactively change the
status of an offense designated a felony where the conviction and sentence are subject to
final judgment. There is a statutory presumption that amendments to the Penal Code
operate prospectively. Section 3 of the Penal Code provides, “No part of it is retroactive,
unless expressly so declared.” Nothing in section 1170.18 expressly declares that it
applies retroactively to section 667.5, subdivision (b) sentence enhancements. Nor does
defendant provide any evidence of voter intent that section 1170.18 would apply
retroactively. Even if there were ambiguity in the statute with respect to retroactivity, we
would construe the statute as unambiguously prospective. (People v. Brown (2012) 54
Cal.4th 314, 320, 324 (Brown).) As this court previously concluded in People v. Jones,
supra, 1 Cal.App.5th 221, “the direction of section 1170.18, subdivision (k) that any
redesignated conviction ‘shall be considered a misdemeanor for all purposes,’ applies, at
most, prospectively to preclude future or non-final sentence enhancements based on
felony convictions redesignated as misdemeanors under Proposition 47.” (Id. at p. 230;
italics added.)5 Defendant’s interpretation of subdivision (k) of section 1170.18 was also
rejected by this court in People v. Evans, supra, 6 Cal.App.5th 894. We adhere to our
5 Under a recent amendment to California Rules of Court, rule 8.1115, we may
rely on People v. Jones, supra, 1 Cal.App.5th 221 (review granted Sept. 14, 2016) and
People v. Evans, supra, 6 Cal.App.5th 894 (review granted Feb. 22, 2017) as persuasive
authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1,
2016.)

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holding in Evans that once a judgment of conviction attains finality,6 the subsequent
reduction of a prior conviction from a felony to a misdemeanor will not invalidate a
sentencing enhancement. (Id. at p. 901, citing People v. Abdallah (2016) 246
Cal.App.4th 736, 746 (Abdallah); see People v. Rivera (2015) 233 Cal.App.4th 1085,
1100 (Rivera).) Defendant has provided no persuasive reason to depart from our
holdings in Jones and Evans.
Defendant’s reliance on Flores, supra, 92 Cal.App.3d 461 and Park, supra, 56
Cal.4th 782 is incorrect.7 Those decisions are distinguishable from the present matter,
because in both cases, the trial court reduced the prior conviction to a misdemeanor
before the defendant’s current sentencing, which included a sentence enhancement based
on the newly classified misdemeanor. (See Abdallah, supra, 246 Cal.App.4th at p. 747
[section 667.5, subdivision (b) enhancement did not apply to defendant sentenced after
his prior felony conviction had been designated as a misdemeanor under Proposition 47].)
In this case, after defendant’s sentencing that included the two sentence enhancements at
6 A judgment is final when the time for filing an appeal and petition for certiorari
to the United States Supreme Court have expired. (People v. Evans, supra, 6 Cal.App.5th
at p. 903.) In this case, defendant pleaded guilty to the substantive charge and admitted
the prior prison term enhancements and was sentenced in April 2008. Approximately
seven and a half years later, in August and October 2015, two of his prior prison term
enhancements were reduced to misdemeanors pursuant to Proposition 47. And,
approximately eight years later in January 2016, defendant filed his Proposition 47
petition in the instant case. Assuming defendant filed appeals in this case from his
April 2008 plea, the judgment has since become final.
7 We note defendant heavily relies on Flores, supra, 92 Cal.App.3d 461, Park,
supra, 56 Cal.4th 782, and Alejandro N., supra, 238 Cal.App.4th 1209 to support his
position.

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issue, other trial courts redesignated those felonies as misdemeanors. At the time of
defendant’s sentencing on the charged offenses, his two enhancements were predicated
on felonies that were not reduced to misdemeanors until after the judgment had long
become final. In fact, the Supreme Court in Park noted that the “for all purposes”
language used in section 17, subdivision (b), does not have retroactive effect on a
previously imposed sentence enhancement: “[t]here is no dispute that, under the rule in
those cases, defendant would be subject to the section 667(a) enhancement had he
committed and been convicted of the present crimes before the court reduced the earlier
offense to a misdemeanor.” (Park, supra, 56 Cal.4th at p. 802, italics added.)
Therefore, those cases provide no support for defendant’s proposed interpretation of
section 1170.18.
Defendant’s reliance on Alejandro N., supra, 238 Cal.App.4th 1209 to support his
position that the voters intended to extend the benefits of Proposition 47 retroactively to
his current sentence is also misplaced. In Alejandro N., the trial court reduced a minor’s
maximum term of confinement after resdesignating his commercial burglary conviction
to shoplifting, a misdemeanor offense, but denied the minor’s request that his DNA be
expunged from the Department of Justice database. (Id. at pp. 1226-1227.) The Court of
Appeal reversed, finding the circumstances to fall within the language of section 299,
subdivision (a), requiring expungement of DNA material from the database if the
“person ‘has no past or present offense or pending charge which qualifies that person for

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inclusion. . . .’ ” (Alejandro N., at p. 1228, italics omitted.)8 In so doing, the court
observed that section 1170.18 “extends [Proposition 47] reclassification in retroactive
fashion to qualified offenders who incurred their convictions before [Proposition 47’s]
effective date,” (Alejandro N., at p. 1224) and that the voters intended to extend the
benefits of Proposition 47 “on a broad retroactive basis to persons convicted of felonies
before [its] effective date” (id. at p. 1228), “unless there [was] another basis to retain it
apart from his mere commission of the reclassified misdemeanor offense.” (Id. at
p. 1217).
In Alejandro N., the court also noted, “Section 1170.18 does not address matters
collateral to the substantive offenses that are incorporated into juvenile proceedings
under Welfare and Institutions Code section 602, but rather involves the very definition
of the offenses themselves—i.e., permitting their characterization as misdemeanors rather
than felonies and allowing resentencing in accordance with the misdemeanor
classification.” (Alejandro N., supra, 238 Cal.App.4th at p. 1224; italics omitted &
added.) Such collateral matters included, for example, applicable enhancements or
8 Two months after Alejandro N., supra, 238 Cal.App.4th 1209 was decided, Bill
No. 1492 was signed into law with an effective date of January 1, 2016. (Stats. 2015,
ch. 487; In re J.C. (2016) 246 Cal.App.4th 1462, 1471.) As relevant here, the bill
amended section 299, subdivision (f) “by inserting ‘1170.18’ into the list of statutes that
do not authorize a judge to relieve a person of the duty to provide a DNA sample.” (In re
J.C., at p. 1472.) Thus, section 299, subdivision (f), now provides, “Notwithstanding any
other law, including Sections 17, 1170.18, 1203.4, and 1203.4a, a judge is not authorized
to relieve a person of the separate administrative duty to provide [a DNA sample] . . . if a
person has been found guilty or was adjudicated a ward of the court by a trier of fact of a
qualifying offense . . . .”

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registration requirements. (Id. at pp. 1220-1224.) However, unlike the present case,
Alejandro N. did not involve a recidivism enhancement. Instead, like the firearms
exception, it involved a separate collateral consequence of a felony conviction, DNA
collection, unrelated to sentencing.
Nothing in the language of section 1170.18 or the ballot materials reflects an intent
to apply subdivision (k) retroactively where the judgment is final. (Rivera, supra, 233
Cal.App.4th at p. 1100.) Proposition 47’s remedial provisions apply only to cases in
which a defendant is currently serving a sentence for a felony conviction that is now a
misdemeanor (§ 1170.18, subd. (a)) and cases in which a defendant convicted of such a
crime has already completed his or her sentence (§ 1170.18, subd. (f)). Moreover, the
statute goes on to instruct 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.” (§ 1170.18, subd. (n).) Defendant’s section 667.5, subdivision (b) prior
prison term enhancements are part of such a final judgment.
As we held in People v. Jones, supra, 1 Cal.App.5th at page 230,
“section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow offenders to request
and courts to grant retroactive designation of offenses such as [defendant’s] prison prior,
but no provision allows offenders to request or courts to order retroactively striking or
otherwise altering an enhancement based on such a redesignated prior offense.” We find
no reason to depart from our prior holding.

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D. Equal Protection
Defendant contends his two prior prison term enhancements should be stricken
retroactively under the equal protection clause of the state and federal Constitutions.
Defendant argues there is no rational reason why the same offense reduced under
Proposition 47 would support a section 667.5, subdivision (b) enhancement for a
defendant prospectively, but not retroactively.
The United States and California Constitutions guarantee equal protection of the
laws. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7; see In re Evans (1996) 49
Cal.App.4th 1263, 1270 [the scope and effect of the two equal protection clauses is the
same].) This guarantee assures that the Legislature and voters cannot adopt a
classification that affects two or more similarly situated groups unequally, unless the
classification has a rational relationship to a legitimate state purpose. (Brown, supra,
54 Cal.4th at p. 328; People v. Singh (2011) 198 Cal.App.4th 364, 369 (Singh).) This
assumes that, as in the instant case, the classification does not involve a suspect class or a
fundamental right. (Singh, at p. 369.)
Defendant argues that refusing to apply Proposition 47 retroactively to
enhancements creates two classes of defendants: (1) those sentenced after enactment of
Proposition 47, 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 before enactment of Proposition 47, who are
unable to avoid enhancements based on prior felony or wobbler convictions (because the

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redesignations they obtain on those prior convictions do not apply retroactively). These
two classes of defendants are distinguished by whether they were able to seek
redesignation before or after the current sentence was imposed, which is a function of the
date Proposition 47 took effect.
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, 189 (Floyd).) “ ‘[A] statute ameliorating punishment for
particular offenses may be made prospective only without offending equal protection,
because the Legislature will be supposed to have acted in order to optimize the deterrent
effect of criminal penalties by deflecting any assumption by offenders that future acts of
lenity will necessarily benefit them.’ ” (People v. Smith (2015) 234 Cal.App.4th 1460,
1468, quoting People v. Kennedy (2012) 209 Cal.App.4th 385, 398.)
There is no denial of equal protection here, because a classification defined by the
effective date of an ameliorative statute rationally furthers the state’s legitimate interest in
assuring that penal laws will maintain their desired deterrent effect by applying
punishment as originally prescribed. (In re Kapperman (1974) 11 Cal.3d 542, 545-546.)
As noted by the United States Supreme Court, “the Fourteenth Amendment does not
forbid statutes and statutory changes to have a beginning and thus to discriminate
between the rights of an earlier and later time.” (Sperry & Hutchinson Co. v. Rhodes
(1911) 220 U.S. 502, 505.)

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Furthermore, applying Proposition 47 only prospectively bears a rational
relationship to the legitimate state interest of transitioning from the prior sentencing
scheme to Proposition 47’s sentencing scheme. Prospective sentencing changes based on
an effective date presumably recognize “legitimate . . . concerns associated with the
transition from one sentencing scheme to another.” (Floyd, supra, 31 Cal.4th at p. 191.)
Defendant has not established his equal protection rights were violated because
defendants, who were sentenced after the effective date of Proposition 47, received more
favorable treatment than those defendants, such as defendant, who were sentenced before
Proposition 47.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
SLOUGH
J.

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