P. v. Robison

Filed 2/24/17 P. v. Robison CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND RAY ROBISON,
Defendant and Appellant.
F071955
(Super. Ct. No. BF142506A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael B.
Lewis, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Ward A. Campbell, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-

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INTRODUCTION
This appeal follows the trial court’s denial of defendant Raymond Ray Robison’s
motion to dismiss three prior prison term enhancements, brought after he successfully
petitioned pursuant to Proposition 47 for reclassification to misdemeanors of the felony
convictions underlying those prison terms. (Pen. Code, § 1170.18, subd. (f).)1
In this case, defendant was charged by complaint with six counts arising out of
offenses he committed on or around June 8, 2012, against Guimarra Vineyards.2 On
July 23, 2012, defendant pled no contest to the allegations that he committed felony
grand theft (§ 487, subd. (a)) (count 1), felony receipt of stolen property (§ 496, subd. (a))
(count 2), two counts of petty theft with a qualifying prior conviction (§ 666) (counts 3 &
4), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))
(count 5), and misdemeanor resistance of an officer (§ 148, subd. (a)(1)) (count 6).
Defendant also admitted three prior serious felony convictions within the meaning of the
three strikes law and seven prior prison term enhancements.
On August 21, 2012, the trial court granted defendant’s request to strike the prior
serious felony convictions and sentenced him to the upper term of three years and to
seven consecutive one-year terms for each of the prior prison term enhancements for a
total term of 10 years. Terms on the remaining counts were stayed. The court stayed
execution of its sentence and placed defendant on probation upon various terms and
conditions.
On March 13, 2013, defendant was arraigned on allegations that he violated the
terms and conditions of his probation. At the conclusion of a contested hearing, the trial
1 Further statutory references are to the Penal Code unless otherwise noted.
2 We take judicial notice of the record on appeal in our prior nonpublished opinion (People
v. Robison (Apr. 10, 2014, F067525), both on our own motion and at the parties’ request. (Evid.
Code, §§ 452, subd. (d)(1), 459; Cal. Rules of Court, rule 8.252(a)(2); People v. McCarthy
(2016) 244 Cal.App.4th 1096, 1100, fn. 2.)

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court found true the allegations that defendant violated the terms of his probation and
revoked probation. The court lifted the stay on defendant’s sentence and ordered
defendant’s commitment to prison for 10 years.
On December 4, 2014, following the enactment of Proposition 47, discussed post,
defendant filed a petition seeking recall and resentencing on counts 1 through 5.3
(§ 1170.18, subd. (a).) On January 21, 2015, the trial court granted his petition as to
count 5, but denied it as to counts 1 through 4 on the ground defendant is ineligible for
resentencing because the value of the items taken from Guimarra Vineyards exceeded the
allowable limit ($950). (§§ 1170.18, subd. (b), 490.2, subd. (a).) Defendant appealed the
denial of his petition as to counts 1 and 2, and that appeal, People v. Robison, case
No. F071215, is currently pending before this court.4
Defendant also brought a petition to have three prior felony convictions for which
he served prison terms reclassified as misdemeanors pursuant to Proposition 47. The trial
court granted that petition on April 30, 2015. (§ 1170.18, subd. (f).) On June 11, 2015,
defendant filed a motion in this underlying case seeking to dismiss three of the seven
prior prison term enhancements based on their reclassification to misdemeanors. On
July 13, 2015, the trial court denied the motion and defendant appealed.
Defendant challenges the trial court’s denial of his motion to dismiss the three
prior prison term enhancements and argues the court erred in finding no legal basis for
dismissal. The People seek dismissal of this appeal on the ground the trial court lacked
jurisdiction to consider the motion to dismiss the prior prison term enhancements because
defendant’s prior appeal of the court’s ruling on his first petition for relief under
3 We take judicial notice of the record on appeal in defendant’s related appeal (People v.
Robison (Feb. 24, 2017, F071215) [nonpub. opn.]), both on our own motion and at the People’s
request. (Evid. Code, §§ 452, subd. (d)(1), 459; Cal. Rules of Court, rule 8.252(a)(2); People v.
McCarthy, supra, 244 Cal.App.4th at p. 1100, fn. 2.)
4 We resolve that appeal in a separate but concurrently issued decision.

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Proposition 47 is still pending. Alternatively, they argue that defendant’s motion to
dismiss his prior prison term enhancements was untimely and that he lacks entitlement
under Proposition 47 to have the enhancements dismissed, or stricken.
We find defendant is not entitled to have his prior prison term enhancements
dismissed and we affirm the trial court’s order.
DISCUSSION
I. Jurisdictional Issue
A. Proposition 47
“‘On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act [(the Act)] .…’ [Citation.] ‘Proposition 47 makes
certain drug- and theft-related offenses misdemeanors, unless the offenses were
committed by certain ineligible defendants. These offenses had previously been
designated as either felonies or wobblers (crimes that can be punished as either felonies
or misdemeanors).’ [Citation.]
“Proposition 47 also added section 1170.18, concerning persons currently serving
a sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It
permits such a person to ‘petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing in
accordance with’ specified sections that ‘have been amended or added by this act.’
(§ 1170.18, subd. (a).) If the trial court finds that the person meets the criteria of
subdivision (a), it must recall the sentence and resentence the person 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).)”5 (People v.
5 Section 1170.18, subdivisions (a) and (j) were amended effective January 1, 2017, to
(1) change the terms of statutory application from “[a] person currently serving a sentence for a
conviction” to “[a] person who on November 5, 2014, was serving a sentence for a conviction,”
and (2) extend the petition or application filing date from “within three years after the effective
date of the act that added this section or at a later date upon a showing of good cause” to “on or

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Morales (2016) 63 Cal.4th 399, 404 (Morales); accord, People v. Sauceda (2016) 3
Cal.App.5th 635, 640, review granted Nov. 30, 2016, S237975.)
B. Trial Court’s Jurisdiction Over Second Proposition 47 Request
The People contend that because defendant’s appeal of the trial court’s order
denying his first petition for relief under Proposition 47 is still pending, the trial court
lacked jurisdiction to consider his second request for relief in the form of the motion to
dismiss the three prior prison terms. Without citation to any authority, defendant asserts
that we have jurisdiction over this appeal because although both appeals arise from the
same underlying criminal case, this appeal raises issues unrelated to those in his other
appeal and that both requests for relief under section 1170.18 were timely.
“Subject to limited exceptions, well-established law provides that the trial court is
divested of jurisdiction once execution of a sentence has begun. [Citation.] And, ‘[t]he
filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until
determination of the appeal and issuance of the remittitur.’ [Citations.] This rule protects
the appellate court’s jurisdiction by protecting the status quo so that an appeal is not
rendered futile by alteration. [Citations.] As a result of this rule, the trial court lacks
jurisdiction to make any order affecting a judgment, and any action taken by the trial
court while the appeal is pending is null and void.” (People v. Scarbrough (2015) 240
Cal.App.4th 916, 923; accord, People v. Yearwood (2013) 213 Cal.App.4th 161, 177.)
None of the limited exceptions to divestment of jurisdiction—vacating a void
judgment, correcting an unauthorized sentence, correcting clerical errors in the judgment,
correcting presentence custody credit calculation errors, recalling a sentence within
120 days for resentencing and filing a petition for writ of habeas corpus—apply here and
defendant does not contend otherwise. (People v. Scarbrough, supra, 240 Cal.App.4th at
before November 4, 2022, or at a later date upon showing of good cause.” (Legis. Counsel’s
Dig., Assem. Bill No. 2765, approved by Governor, Sept. 28, 2016 (2015-2016 Reg. Sess.)
pp. 1–3.)

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pp. 923–924.) Thus, it appears defendant’s earlier appeal of the trial court’s order
denying his first petition for relief under section 1170.18, subdivision (a), divested the
trial court of jurisdiction to consider his second request for relief under section 1170.18.
That the requests for relief under Proposition 47 targeted different issues is of no
consequence: both petitions for relief pertain to the same underlying criminal case and
sentence. We need not decide whether the trial court was divested of jurisdiction,
however, because defendant’s claim also fails on the merits.
II. Entitlement to Dismissal of Prior Prison Term Enhancements Based on
Reclassification
As previously stated, on April 30, 2015, the trial court granted defendant’s
Proposition 47 petition and reduced to misdemeanors three prior convictions upon which
the prior prison term allegations were based. Relying on section 1170.18,
subdivision (k), People v. Park (2013) 56 Cal.4th 782 (Park) and People v. Camarillo
(2000) 84 Cal.App.4th 1386 (Camarillo), defendant argues that because his prior felony
convictions have now been reduced to misdemeanors for all purposes, they no longer
support the prior prison term allegations under section 667.5, subdivision (b).6,7
We recently considered and rejected this argument in People v. Johnson (2017) 8
Cal.App.5th 111 (Johnson). In doing so, we addressed the decision in Park, observing
that in that case, “the defendant’s sentence for his current crimes was enhanced by five
years under section 667, subdivision (a), based on his prior conviction of a serious felony.
Prior to the defendant’s commission of his current crimes, however, the trial court
6 Subdivision (k) of section 1170.18 provides, in relevant part: “Any felony conviction
that is … designated as a misdemeanor under 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.”
7 We note that several cases addressing this issue have been granted review. (E.g., People
v. Williams, review granted May 11, 2016, S233539; People v. Carrea, review granted Apr. 27,
2016, S233011; People v. Ruff, review granted May 11, 2016, S233201; People v. Valenzuela,
review granted Mar. 30, 2016, S232900.)

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reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3).6
[Citation.]
“In Park, the Court of Appeal held the conviction 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 within the meaning of section 667,
subdivision (a), and could not be used, under that provision, to enhance [the] defendant’s
sentence.’ [Citation.]” (Johnson, supra, 8 Cal.App.5th at pp. 118–119.)
Similarly, in Camarillo, the Court of Appeal held that “when a court acts under …
section 17 to specify that a conviction for driving under the influence of alcohol shall be
treated as a misdemeanor ‘for all purposes,’ that offense may not afterwards be pled as a
prior felony conviction under the terms of former Vehicle Code section 23175.5, now
Vehicle Code section 23550.5 (Stats. 1998, ch. 118, § 84), even though the offense may
have been originally punished as a felony.” (Camarillo, supra, 84 Cal.App.4th at
p. 1388.)
Defendant’s reliance on Park and Camarillo is misplaced, however, because in
those cases, the reduction of the offense occurred prior to the defendant’s commission of
his current crimes. (Park, supra, 56 Cal.4th at p. 787; Camarillo, supra, 84 Cal.App.4th
at pp. 1388–1389.) Here, as in Johnson, “the reduction to a misdemeanor pursuant to
section 1170.18, subdivision (f), occurred after [the] defendant’s commission, conviction,
and sentence for his current crimes.” (Johnson, supra, 8 Cal.App.5th at p. 119.)
“6 Section 17, subdivision (b)(3) states in part: ‘When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a county
jail …, it is a misdemeanor for all purposes … [¶] … [¶] … [w]hen the court grants probation to
a defendant without imposition of sentence and at the time of granting probation … declares the
offense to be a misdemeanor.’”

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As we explained in Johnson, “[t]he issue before us is not whether defendant’s
underlying convictions and prison commitments … can now be used to enhance a future
sentence pursuant to section 667.5, subdivision (b), should defendant commit a new
felony upon release from custody on his current sentence. Rather, the issue is whether
defendant’s current sentence, enhanced pursuant to section 667.5, subdivision (b), must
now be altered because, subsequent to defendant’s sentencing, the convictions that gave
rise to th[ose] enhancement[s] were reduced to misdemeanors pursuant to section
1170.18, subdivision (f). In other words, does the Act operate retroactively?” (Johnson,
supra, 8 Cal.App.5th at p. 119.) We turn to the language of section 1170.18 and to voter
intent in making that determination. (Ibid.)
“Section 3 specifies that no part of the Penal Code ‘is retroactive, unless expressly
so declared.’ This language ‘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.’” [Citation.]’ [Citation.]
“An ‘important, contextually specific qualification’ to the prospective-only
presumption regarding statutory amendments was set forth in In re Estrada (1965) 63
Cal.2d 740 (Estrada). [Citation.] That qualification is: ‘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. (Citation.]’ [Citation.]
“Although Estrada’s language is broad, the California Supreme Court has
emphasized the rule’s narrowness (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1196,
disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216):

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‘Estrada is today properly understood, not as weakening or modifying the default rule of
prospective operation codified in section 3, but rather as informing the rule’s application
in a specific context by articulating the reasonable presumption that a legislative [or
voter] act mitigating the punishment for a particular criminal offense is intended to apply
to all nonfinal judgments. [Citation.]’ [Citation.]
“The question of retroactivity is ultimately one of legislative—or, in this case,
voter—intent. [Citations.] ‘To resolve this very specific retroactivity question, we apply
the well-settled rules governing interpretation of voter intent .…’ [Citation.] ‘“In
interpreting a voter initiative …, we apply the same principles that govern statutory
construction. [Citation.] Thus, … ‘we turn first to the language of the statute, giving the
words their ordinary meaning.’ [Citation.] … The statutory language must also be
construed in the context of the statute as a whole and the overall statutory scheme [in
light of the electorate’s intent]. [Citation.] … When the language is ambiguous, ‘we
refer to other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.’ [Citation.]” [Citation.] [¶] In other words,
our “task is simply to interpret and apply the initiative’s language so as to effectuate the
electorate’s intent.” [Citation.]’ [Citation.]
“The Act clearly was intended to lessen punishment for ‘nonserious, nonviolent
crimes like petty theft and drug possession’ (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70), in order ‘to ensure that prison
spending is focused on violent and serious offenses .…’ (Id., § 2, p. 70.)7 This purpose
was conveyed to voters, both in the text of the then-proposed law and in the arguments
supporting Proposition 47. (Voter Information Guide, Gen. Elec., supra, argument in
favor of Prop. 47, p. 38; id., rebuttal to argument against Prop. 47, p. 39; id., text of
Prop. 47, §§ 2, 3, p. 70.)
“7 The voter [information] guide can be accessed at http://www.sos.ca.gov/elections/voting-
resources/voter-information-guides/ (as of Feb. [24], 2017).”

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“Nowhere, however, do the Act or the ballot materials refererence section 667.5,
subdivision (b) or mention recidivist enhancements, and the Act made no amendments to
any such provisions. Two of the Act’s expressly stated purposes, however, are to
‘[a]uthorize consideration of resentencing for anyone who is currently serving a sentence
for any of the offenses’ that would be made misdemeanors by the Act, and to ‘[r]equire a
thorough review of criminal history and risk assessment of any individuals before
resentencing to ensure that they do not pose a risk to public safety.’ (Voter Information
Guide, Gen. Elec., supra, text of Prop. 47, § 3, subds. (4), (5), p. 70.) Voters were
assured the Act would keep dangerous criminals locked up (Voter Information Guide,
Gen. Elec., supra, argument in favor of Prop. 47, p. 38), and that it would not require
automatic release of anyone: ‘There is no automatic release. [Proposition 47] includes
strict protections to protect public safety and make sure rapists, murderers, molesters and
the most dangerous criminals cannot benefit.’ (Id., rebuttal to argument against Prop. 47,
p. 39.)
“‘Imposition of a sentence enhancement under … section 667.5 requires proof that
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. [Citation.]’8 [Citation.] ‘Sentence enhancements for prior prison
“8 Section 667.5, subdivision (b), currently provides: ‘Except where subdivision (a) applies,
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 imposed under subdivision (h) of Section 1170 or
when sentence is not suspended for any felony; provided that no additional term shall be
imposed under this subdivision for any prison term or county jail term imposed under
subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years
in which the defendant remained free of both the commission of an offense which results in a
felony conviction, and prison custody or the imposition of a term of jail custody imposed under
subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed
under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the

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terms are based on the defendant’s status as a recidivist, and not on the underlying
criminal conduct, or the act or omission, giving rise to the current conviction.
[Citations.]’ [Citations.] Thus, the purpose of an enhancement under section 667.5,
subdivision (b) ‘is “to punish individuals” who have shown that they are “‘hardened
criminal[s] who [are] undeterred by the fear of prison.’” [Citation.]’ [Citation.] The
enhancement’s focus on the service of a prison term ‘indicates the special significance
which the Legislature has attached to incarceration in our most restrictive penal
institutions.’ [Citation.]” (Johnson, supra, 8 Cal.App.5th at pp. 119–122.)
As we have recognized, “[a] person who refuses to reform even after serving time
in prison is clearly and significantly more dangerous than someone who merely possesses
drugs for personal use or shoplifts. We cannot conclude, from the language of the Act or
the ballot materials, that voters deemed such persons to be nonserious, nondangerous
offenders, and so intended the Act to reach back to ancillary consequences such as
enhancements resulting from recidivism considered serious enough to warrant additional
punishment. Accordingly, section 3’s default rule of prospective operation, and not
Estrada’s narrow rule of retroactivity, applies.” (Johnson, supra, 8 Cal.App.5th at
p. 122.)
In sum, we find “[n]othing in the language of the Act or the ballot materials
indicates an intention to override the operation of section 667.5, subdivision (b), at least
retroactively.” (Johnson, supra, 8 Cal.App.5th. at p. 123.) “Defendant served … prison
term[s] for the prior convictions at a time when the offenses were felonies. It is the
service of th[ose] prison term[s], coupled with defendant’s continuing recidivism, that
section 667.5, subdivision (b) punishes. Absent a clear statement of the electorate’s
intent to the contrary—which we do not find—we conclude that, because defendant
term is suspended by the court to allow mandatory supervision, shall qualify as a prior county
jail term for the purposes of the one-year enhancement.’”

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served … prison term[s] for his [underlying offenses] at a time when the offenses were
felonies, and had his current sentence enhanced accordingly before the convictions were
reduced, he is not entitled to relief.” (Ibid.)
As we observed in Johnson, “[t]his conclusion does not render surplusage or
eviscerate the ‘for all purposes’ language of section 1170.18, subdivision (k). Our
determination is one of the electorate’s intent. ‘Rules such as those directing courts to
avoid interpreting legislative enactments as surplusage are mere guides and will not be
used to defeat legislative intent. [Citations.]’ [Citation.] Moreover, ‘ambiguities are not
interpreted in the defendant’s favor if such an interpretation would provide an absurd
result, or a result inconsistent with apparent legislative intent. [Citation.]’ [Citation.]”
(Johnson, supra, 8 Cal.App.5th at p. 123.)
In accordance with Johnson, we reject defendant’s argument and find that a
previously imposed sentence enhanced by a section 667.5, subdivision (b), prior prison
term is not altered by the granting of a Proposition 47 petition reducing the felony that
gave rise to that prior prison term to a misdemeanor.8 (Johnson, supra, 8 Cal.App.5th at
p. 123)
8 Based on this conclusion, we need not reach the People’s argument that defendant’s
motion to strike the prior prison term enhancements was untimely or their request for remand to
withdraw from the parties’ plea bargain in the event we find the trial court erred in denying
defendant’s motion to dismiss.

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DISPOSITION
The order denying defendant’s motion to strike his two prior prison term
enhancements (§ 667.5, subd. (b)) is affirmed.
___________________________
KANE, J.
WE CONCUR:
__________________________
LEVY, Acting P.J.
__________________________
GOMES, J.

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