P. v. Roberts

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Filed 11/30/15 P. v. Roberts CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143484
v.
(Humboldt County
ROBERT BARRY ROBERTS, Super. Ct. Nos.
CR1007331, CR1101730,
Defendant and Appellant. CR1206025, CR1304138B)
_______________________________________/
Appellant Robert Barry Roberts pled guilty to second degree commercial burglary
(Pen. Code, § 459)1 and guilty or no contest to several counts of felony possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a)) and the trial court
sentenced him to state prison. Roberts appealed. While his appeal was pending,
California voters enacted Proposition 47 (§ 1170.18), which reclassifies certain felonies
as misdemeanors.
On appeal, Roberts contends his felony convictions are now misdemeanors under
section 1170.18. He urges this court to “remand his case to the trial court to hold a
sentencing hearing and to apply” section 1170.18. We decline to do so. To obtain relief
pursuant to Proposition 47, Roberts must file the appropriate petition or application
1 Unless noted, all further statutory references are to the Penal Code.

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pursuant to section 1170.18 in the trial court. We therefore affirm the judgment without
prejudice to any remedies Roberts may have under section 1170.18.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying Roberts’s convictions are not relevant on appeal.
In 2011, in case No. CR1007331, Roberts pled guilty to felony possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a)) and admitted a prior prison
term (§ 667.5). In 2011, in case No. CR1101730, Roberts pled no contest to felony
possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). In 2012,
in case No. CR1206025, Roberts pled no contest to felony possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a)). In 2014, in case No. CR1304138B,
Roberts pled guilty to second degree commercial burglary (§ 459) and admitted violating
probation and mandatory supervision in the other cases.
On October 22, 2014, the court sentenced Roberts in case No. CR1007331 to six
years and four months in state prison. In the other three cases, the court imposed and
stayed sentence or deemed the sentence served in the interests of justice. On October 24,
2014, Roberts filed his notice of appeal in all four cases.
DISCUSSION
In November 2014 — and after Roberts appealed — California voters enacted
Proposition 47, which “created a new resentencing provision: section 1170.18. Under
section 1170.18, a person ‘currently serving’ a felony sentence for an offence that is now
a misdemeanor under Proposition 47, may petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall
have his or her sentence recalled and be ‘resentenced to a misdemeanor . . . unless the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).)” (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1092; People v. Lynall (2015) 233 Cal.App.4th 1102,
1108-1109.)

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Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), Robert contends “the
reduced punishments established by Proposition 47” apply to him because his “case is not
final on appeal” and because Proposition 47 does not contain a savings clause. He urges
us to remand his case to the trial court to hold a sentencing hearing and to reduce his
felony convictions to misdemeanors. Several courts have rejected the argument Roberts
makes here and have concluded Proposition 47 does not apply retroactively.2 (See
People v. Shabazz (2015) 237 Cal.App.4th 303, 314 [Proposition 47 is not retroactive and
a defendant “must file an application in the trial court to have his felony convictions
designated as misdemeanors”]; People v. Noyan (2014) 232 Cal.App.4th 657, 672 [a
“[d]efendant is limited to the statutory remedy of petitioning for recall of sentence in the
trial court once his judgment is final, pursuant to Penal Code section 1170.18”].)
For example, in People v. Diaz (2015) 238 Cal.App.4th 1323 (Diaz), the appellate
court declined to apply Estrada and concluded “the plain language of Proposition 47 and
the extrinsic evidence surrounding its passage demonstrate that neither persons currently
serving a sentence for a listed offense, nor those who have completed such a sentence, are
automatically entitled to reduction in punishment.” (Diaz, supra, at p. 1336; see also
People v. Yearwood (2013) 213 Cal.App.4th 161, 168 [defendant not entitled to
retroactive application of changes to analogous statute, Three Strikes Reform Act of
2012, without first petitioning trial court].) We agree with the above cases and conclude
Proposition 47 is not retroactive. Roberts must pursue his statutory remedy under section
1170.18 by filing the appropriate petition or application in the trial court.
2 Whether Proposition 47 applies retroactively is before the California Supreme
Court. (See, e.g., People v. Dehoyos, review granted Sept. 30, 2015, S228230; People v.
Lopez, review granted Oct. 14, 2015, S228372; People v. Delapena, review granted Oct.
28, 2015, S229010.) Our high court is also considering whether the Three Strikes
Reform Act of 2012 applies retroactively to a defendant sentenced before the Act’s
effective date and whose judgment was not final until after that date. (See, e.g., People v.
Conley, review granted Aug. 14, 2013, S211275; People v. Lewis, review granted Aug.
14, 2013, S211494).

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DISPOSITION
The judgment is affirmed without prejudice to any remedies Roberts may have
under section 1170.18.
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Bruiniers, J.

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