P. v. Harrell

Filed 5/3/17 P. v. Harrell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
STEPHEN B. HARRELL,
Defendant and Appellant.
2d Crim. No. B275532
(Super. Ct. No. BA400374-01)
(Los Angeles County)
Stephen B. Harrell appeals an order denying his
motion for resentencing under Proposition 47. (Pen. Code,
§ 1170.18.)1 In 2013, he was convicted of assault by means
likely to produce great bodily injury (§ 245, subd. (a)(4)), and the
trial court found he had served six prior prison terms (§ 667.5,
subd. (b) (hereafter “section 667.5(b)”). In 2015, three of his
prior felony convictions (Health & Saf. Code, § 11350), which
1 All statutory references are to the Penal Code unless
otherwise stated.

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were used to enhance his sentence under section 667.5(b), were
reclassified as misdemeanors under Proposition 47. We
conclude, among other things, that the trial court correctly ruled
the reclassification of theses offenses from felonies to
misdemeanors did not invalidate his section 667.5(b) prior
prison term enhancements. We affirm.
FACTS
After his 2013 conviction for assault, Harrell waived
a court trial and “admitted he had served six prior prison
terms.” (§ 667.5(b).) He was sentenced to an aggregate 12-year
prison term--six years for the assault conviction and “six years
for the six prior prison terms.” (Ibid.)
Three of his prior felony convictions for which he
served prison terms, and were subject to the section 667.5(b)
enhancements, were for violation of Health and Safety Code
section 11350. After the passage of Proposition 47, these Health
and Safety Code section 11350 felonies were reclassified as
misdemeanors. (Prop. 47, § 11.)
In 2015, Harrell filed a motion for resentencing
under Proposition 47. The trial court reduced these three
felonies to misdemeanors.
In 2016, Harrell filed a motion to “strike the one
year prison prior enhancements.” He claimed “[t]hese priors are
no longer eligible as one year enhancements under [section]
1170.18.” (Prop. 47.) The trial court ruled the motion to “strike
a prison prior enhancement, pursuant to Penal Code section
1170.18, is heard [and] denied.”

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DISCUSSION
Removing Prior Prison Enhancements under Proposition 47
Harrell contends he was “entitled to resentencing,
because prison priors for which enhancements were imposed
have since been reduced to misdemeanors under Proposition
47.”
The People contend reclassification of an offense
under section 1170.18 (Prop. 47) does not invalidate an
enhancement under section 667.5, subdivision (b). We agree.
Harrell notes “the overall tide of Court of Appeal
opinion has been against him on this issue.” But this issue is
currently before the California Supreme Court in People v.
Valenzuela, review granted March 7, 2016, S232900. The Court
of Appeal opinion in Valenzuela held that the redesignation of a
defendant’s prior felony as a misdemeanor under Proposition 47
does not invalidate his or her prior prison term sentence
enhancement. (§ 667.5(b).)
“‘In interpreting a voter initiative like [Proposition
47], we apply the same principles that govern statutory
construction.’” (People v. Rivera (2015) 233 Cal.App.4th 1085,
1099.) “‘“The fundamental purpose of statutory construction is
to ascertain the intent of the lawmakers . . . .”’” (Ibid.) We start
by looking to the language of the proposition. (Id. at p. 1100.)
“Proposition 47 . . . created a new resentencing
provision . . . .” (People v. Rivera, supra, 233 Cal.App.4th at
p. 1092.) It reclassified certain felonies as misdemeanors.
These reclassifications are set forth in nine sections of
Proposition 47. (Prop. 47, §§ 5-13.) But none of these sections
applies to enhancements, such as section 667.5(b). This
omission is significant. It shows the lack of authority to vacate

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the section 667.5(b) enhancements that were part of the 2013
judgment. (People v. Shabazz (2015) 237 Cal.App.4th 303, 313
[a defendant’s rights under Proposition 47 are limited to the
“specific procedures” set forth in that act].) Proposition 47
establishes a new comprehensive statutory scheme for resolving
resentencing claims. Where a statute creates a new right and “a
comprehensive and detailed remedial scheme for its
enforcement, the statutory remedy is exclusive.” (Rojo v. Kliger
(1990) 52 Cal.3d 65, 79.)
Moreover, section 14, subdivision (n) of Proposition
47 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.” (Italics added.) The
enhancements do not fall “within the purview” of sections 5
through 13 of Proposition 47, and they are part of the final 2013
judgment which is not subject to abrogation. (Prop. 47, § 14,
subd. (n); Tapia v. Superior Court (1991) 53 Cal.3d 282, 287;
People v. Hayes (1989) 49 Cal.3d 1260, 1274; People v. Jones
(2016) 1 Cal.App.5th 221, 230, review granted Sept. 14, 2016,
S235901.)
Harrell notes that section 1170.18, subdivision (k)
provides, “Any felony conviction that is recalled and resentenced
. . . or designated as a misdemeanor under [Proposition 47] shall
be considered a misdemeanor for all purposes . . . .” He claims
that because the crimes that subjected him to the enhancements
are now reclassified as misdemeanors, Proposition 47 applies
retroactively to invalidate the section 667.5(b) enhancements in
the 2013 judgment.
But “the language in subdivision (k) of section
1170.18 that a conviction that is reduced to a misdemeanor

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under that section ‘shall be . . . a misdemeanor for all purposes’
is not significantly different from the language in section 17(b),
which provides that after the court exercises its discretion to
sentence a wobbler as a misdemeanor, and in the other
circumstances specified in section 17(b), ‘it is a misdemeanor for
all purposes.’” (People v. Rivera, supra, 233 Cal.App.4th at
p. 1100.) “[I]n construing this language from section 17(b), the
California Supreme Court has stated that the reduction of the
offense to a misdemeanor does not apply retroactively.” (Ibid.)
“We presume the voters ‘intended the same construction’ for the
language in section 1170.18, subdivision (k), ‘unless a contrary
intent clearly appears.’” (Ibid.) “Nothing in the text of
Proposition 47 or the ballot materials for Proposition 47” shows
such a contrary intent. (Ibid.; Tapia v. Superior Court, supra,
53 Cal.3d at p. 287; People v. Hayes, supra, 49 Cal.3d at p. 1274
[a new statute is “generally presumed to operate
prospectively”].) “If ultimately a misdemeanor sentence is
imposed, the offense is a misdemeanor from that point on, but
not retroactively . . . .” (People v. Feyrer (2010) 48 Cal.4th 426,
439, italics added.)
The People also note that the section 667.5(b)
enhancements were imposed as part of the 2013 judgment of
conviction for Harrell’s assault offense. They correctly point out
that because the assault judgment was not set aside, his recent
motion to “strike” cannot invalidate the enhancements that
were previously imposed in 2013. (People v. Park, supra, 56
Cal.4th at p. 802; People v. Jones, supra, 1 Cal.App.5th at p. 230
[section 1170.18 provides no “procedure for the retroactive
dismissal or striking of enhancements”].)

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“[T]he voters set forth specific procedures for
securing the lesser punishment to eligible persons . . . . These
are the sole remedies available under Prop. 47 . . . .” (People v.
Shabazz, supra, 237 Cal.App.4th at p. 313, italics added.) The
relief Harrell seeks is not authorized by Proposition 47. (People
v. Jones, supra, 1 Cal.App.5th at p. 230.)
Equal Protection
Harrell contends applying Proposition 47
prospectively to prevent him from invalidating his section
667.5(b) enhancements violates equal protection. He suggests
that because defendants with Health and Safety Code section
11350 convictions after the passage of Proposition 47 would not
be subject to section 667.5(b) enhancements, he has a
constitutional right to retroactively vacate his pre-Proposition
47 enhancements. We disagree.
Proposition 47 authorizes new reductions of certain
crimes and sentences that were previously imposed. But it also
precludes relief for judgments not falling within its provisions.
(Prop. 47, § 14, subd. (n).) Statutes may provide defendants
with current convictions relief which will not be available to
defendants with prior convictions. Such difference in treatment
between the two classes of defendants is not unconstitutional.
(People v. Floyd (2003) 31 Cal.4th 179, 189.)
“[P]unishment-lessening statutes given prospective
application do not violate equal protection.” (In re Bender (1983)
149 Cal.App.3d 380, 388; see also People v. Floyd, supra, 31
Cal.4th at p. 189 [“‘[A] reduction of sentences only prospectively
from the date a new sentencing statute takes effect is not a
denial of equal protection’”]; People v. Jones, supra, 1

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Cal.App.5th at p. 232 [no equal protection violation for not
applying Proposition 47 retroactively].)
We have reviewed Harrell’s remaining contentions
and we conclude he has not shown grounds for reversal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.

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Henry J. Hall, Judge
Superior Court County of Los Angeles
______________________________
John Derrick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey, Supervising
Deputy Attorney General, Heather B. Arambarri, Deputy
Attorney General, for Plaintiff and Respondent.

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