P. v. Alvarez

Filed 9/22/17 P. v. Alvarez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MICHAEL ALVAREZ,
Defendant and Appellant.
H043234
(Santa Cruz County
Super. Ct. Nos. F22948, F23933,
F25120, F25028)
Defendant Anthony Michael Alvarez appeals from an order denying his request to
strike a prior prison term enhancement imposed under Penal Code section 667.5,
subdivision (b).1 Defendant contends that the trial court was required to strike the
enhancement because the offense underlying the conviction had been redesignated a
misdemeanor pursuant to section 1170.182 after the passage of Proposition 47.3 The
order is affirmed.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Our references to section 1170.18 are to the version which took effect in
November 2014.
3 This issue is before the California Supreme Court. (People v. Valenzuela (2016)
244 Cal.App.4th 692 (Valenzuela), review granted Mar. 30, 2016, S232900.)

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I. Background
A. Case No. F22948
In July 2012, the Santa Cruz County District Attorney’s Office filed an
information in case No. F22948, which charged defendant with: transportation of a
controlled substance (Health & Saf. Code, § 11379, subd. (a) - count 1); possession of a
controlled substance for sale (Health & Saf. Code, § 11378 - count 2); possession of a
controlled substance (Health & Saf. Code, § 11350, subd. (a) – count 3); possession of an
injection device (Health & Saf. Code, § 11364.1, subd. (a) - count 4); and driving with a
suspended or revoked license (Veh. Code, § 14601.1, subd. (a) - count 5). The
information also alleged that defendant had four prior prison term enhancements pursuant
to section 667.5, subdivision (b). The prior prison term enhancements were based on
defendant’s violations of sections 666 and 496, subdivision (a), Health and Safety Code
section 11377, subdivision (a), and Vehicle Code section 10851, subdivision (a).
B. Case No. F23933
In February 2013, the Santa Cruz County District Attorney’s Office filed an
information in case No. F23933 which charged defendant with: possession for marijuana
for sale (Health & Saf. Code, § 11359 - count 1); possession of hydrocodone (Health &
Saf. Code, § 11350, subd. (a) - count 2); and possession of oxycodone (Health & Saf.
Code, § 11350, subd. (a) - count 3). The information also alleged that defendant had four
prior prison term enhancements (§ 667.5, subd. (b)) and an on-bail enhancement (§
12022.1).
C. Plea and Sentencing in Case Nos. F22948 and F23933
In April 2013, defendant pleaded guilty to all counts and admitted all of the
enhancement allegations in case Nos. F22948 and F23933. The pleas were entered

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pursuant to a negotiated agreement for both cases in which defendant would not be
sentenced to more than three years and eight months and would have the possibility of
probation.
On June 26, 2013, in case No. F22948, the trial court struck one of the prior prison
term enhancements (§ 667.5, subd. (b)), imposed and suspended imposition of a six-year
sentence, and placed defendant on probation for three years. In case No. F23933, the trial
court suspended imposition of sentence and placed defendant on probation for three
years.
Two days later, the trial court revoked defendant’s probation in case Nos. F22948
and F23933.
D. Case No. F25028
On July 1, 2013, the Santa Cruz District Attorney’s Office filed a criminal
complaint in case No. F25028 and charged defendant with possession of cocaine and
heroin (Health & Saf. Code, § 11350, subd. (a) - count 1) and possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a) - count 2). The complaint
also alleged that defendant had four prior prison term enhancements (§ 667.5, subd. (b)).
Two weeks later, defendant entered a plea of no contest to count 1 and admitted
two prior prison term enhancements. The trial court dismissed count 2 and struck the
other two prior prison term enhancements. On the same date, defendant also admitted
violating the terms of probation in case Nos. F22948 and F23933.
E. Case No. F25120
On July 17, 2013, the Santa Cruz District Attorney’s Office filed a criminal
complaint in case No. F25120 and charged defendant with possession of a controlled

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substance in a jail facility (§ 4573.6). The complaint also alleged four prior prison term
enhancements (§ 667.5, subd. (b)).
A week later, defendant pleaded no contest to possession of a controlled
substances in a jail facility (§ 4573.6) and admitted one prior prison term enhancement.
The trial court struck the remaining prior prison term enhancements.
F. Sentencing
On August 23, 2013, the trial court imposed the previously suspended sentence of
six years in case No. F229484 and deemed case No. F22948 the principal case. In case
No. F25028, the trial court sentenced defendant to eight months and imposed and stayed
sentence on defendant’s two prior prison term enhancements. In case No. F25120, the
trial court sentenced defendant to two years in state prison. The trial court ordered that
defendant’s sentences in case Nos. F25028 and F25120 run consecutive to the six-year
sentence in case No. F22948 and ordered that defendant serve the sentences after
completing his six-year sentence in case No. F22948.
In September 2013, the trial court sentenced defendant in case No. F23933 to eight
months in state prison. Thus, defendant’s total aggregate sentence was nine years and
four months in case Nos. F22948, F23933, F25028, and F25120.
4 The six-year sentence included: a two-year prison term on count 2 (the principal
term) (possession of a controlled substance for sale - Health & Saf. Code, § 11378); a
consecutive one-year prison term on count 1 (transportation of a controlled substance -
Health & Saf. Code, § 11379, subd. (a)); a concurrent two-year prison term on count 3
(possession of a controlled substance - Health & Saf. Code, § 11350, subd. (a)); a
concurrent 30-day jail term on count 4 (possession of an injection device - Health & Saf.
Code, § 11364, subd. (a)); a concurrent 30-day jail term on count 5 (driving with a
suspended or revoked license - Veh. Code, § 14601.1, subd. (a)); and a one-year term for
each of the three prior prison term enhancements (§ 667.5, subd. (b)), which was based
on defendant’s prior violations of section 496 and 666 and Vehicle Code section 10851,
subdivision (a).

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G. Resentencing
On September 29, 2015, the trial court redesignated defendant’s felony section
666 (petty theft with a prior) conviction to a misdemeanor in case No. F14501 pursuant to
section 1170.18, subdivision (f).
On November 20, 2015, defendant filed a petition for resentencing pursuant to
section 1170.18, subdivision (b).
On January 5, 2016, the trial court redesignated all four of defendant’s felony
convictions for violation of Health and Safety Code section 113505 to misdemeanors and
resentenced him accordingly. However, the trial court denied defendant’s request to
strike his prior prison term enhancement (petty theft with a prior) in case No. F22948.
II. Discussion
Defendant contends that the prior prison term enhancement alleged in case No.
F22948 must be stricken because the underlying conviction is no longer a felony under
Proposition 47.
A. Legal Principles
1. Proposition 47
In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and
Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff.
Nov. 5, 2014.) Proposition 47 amended certain statutes to reduce those offenses to
misdemeanors and also added new misdemeanor offenses. (§ 1170.18, subd. (a); People
v. Chen (2016) 245 Cal.App.4th 322, 326.)
5 These convictions included: count 3 in case No. F22948; counts 2 and 3 in case
No. F23933; and count 1 in case No. F25028.

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Proposition 47 also included provisions for resentencing. A defendant who is
currently serving his or her sentence for a felony conviction, and who would have been
guilty of a misdemeanor if the Act had been in effect at the time of the offense, may file
an application to have the felony conviction resentenced as a misdemeanor. (§ 1170.18,
subd. (a).) If the petitioner satisfies the criteria in section 1170.18, subdivision (a),6 the
trial court must recall the petitioner’s felony sentence and resentence the petitioner 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).) Alternatively, when a defendant has completed a felony sentence for an
offense which is eligible for reduction to a misdemeanor under Proposition 47, he or she
must file an application to have the felony reduced to a misdemeanor pursuant to section
1170.18, subdivision (f). (People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) If the
application satisfies the criteria in section 1170.18, subdivision (f), the trial court must
reduce the felony to a misdemeanor. (People v. Shabazz, at pp. 310-311.)
2. Prior Prison Term Enhancement
A prior prison term enhancement under section 667.5, subdivision (b) may be
imposed “where the new offense is any felony . . . .” Historically, “[i]mposition of a
sentence enhancement under . . . section 667.5 require[d] proof that the defendant: (1)
was previously convicted of a felony; (2) was imprisoned as a result of that conviction;
6 Section 1170.18 provides in relevant part: “A person currently serving a sentence
for a conviction, whether by trial or plea, of a felony or felonies who would have been
guilty of a misdemeanor under the act that added this section (‘this act’) had this act been
in effect at the time of the offense may 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 Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.” (§ 1170.18, subd. (a).) Section 1170.18,
subdivision (b) provides that a court that receives such a petition shall resentence the
petitioner “unless the court, in its discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety.”

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(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.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.) Section 667.5,
subdivision (b) has been amended to account for prison realignment and the fact that
some felony sentences are now served in county jail under subdivision (h) of section
1170. However, the basic requirements of a section 667.5, subdivision (b) finding remain
the same.
“Sentence enhancements for prior prison 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.” (People v. Gokey (1998) 62 Cal.App.4th 932, 936.) The
purpose of the prior prison term enhancement is “ ‘to punish individuals’ who have shown
that they are ‘ “hardened criminal[s] who [are] undeterred by the fear of prison.” ’
[Citation.]” (In re Preston (2009) 176 Cal.App.4th 1109, 1115.)
3. Principles of Statutory Construction
“[O]ur interpretation of a ballot initiative is governed by the same rules that apply
in construing a statute enacted by the Legislature. [Citations.] We therefore first look to
‘the language of the statute, affording the words their ordinary and usual meaning and
viewing them in their statutory context.’ [Citations.]” (People v. Park (2013) 56 Cal.4th
782, 796 (Park).) “ ‘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.]” (People v. Briceno (2004) 34 Cal.4th 451, 459.) “ ‘ “When
statutory language is clear and unambiguous, there is no need for construction and courts
should not indulge in it.” [Citation.]’ [Citation.]” (People v. Hendrix (1997) 16 Cal.4th
508, 512.)

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B. Analysis
Defendant relies on the language of section 1170.18, subdivision (k), which states:
“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 firearm possession].” He thus contends that the plain
language of section 1170.18, subdivision (k) directs the trial court to treat a redesignated
misdemeanor conviction as a misdemeanor for all purposes and thus the former felony
conviction cannot serve as the basis for a sentencing enhancement previously imposed
under section 667.5, subdivision (b).
In considering defendant’s contentions, this court must determine whether the
“misdemeanor for all purposes” language of section 1170.18, subdivision (k) applies
retroactively. Retroactive application of the statute would allow resentencing of a
defendant whose sentence was enhanced pursuant to section 667.5, subdivision (b), when
he or she had served a prior prison term and the trial court redesignated the underlying
felony conviction as a misdemeanor pursuant to section 1170.18, subdivision (a).
Section 3 states that no part of the Penal Code is “retroactive, unless expressly so
declared.” The California Supreme Court has interpreted section 3 “to mean ‘[a] new
statute is generally presumed to operate prospectively absent an express declaration of
retroactivity or a clear and compelling implication that the Legislature intended
otherwise. [Citation.]’ ” (People v. Alford (2007) 42 Cal.4th 749, 753.) “[I]n 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 the voters must have intended a
retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
Section 1170.18, subdivision (k) does not include any language indicating that its
application is retroactive. Defendant has not directed us to any extrinsic sources, such as
the ballot materials for Proposition 47, that indicate that the voters intended retroactive

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application. (See People v. Whaley (2008) 160 Cal.App.4th 779, 793-794.) In addition,
our review of the ballot materials did not reveal any language suggesting that the voters
intended that section 1170.18, subdivision (k) be applied retroactively. (See Voter
Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, § 3, subds. (3)–(5), p. 70;
id., analysis of Prop. 47 by Legislative Analyst, pp. 35–36.)
Since there is neither an express retroactivity provision nor an expression of voter
intent that the “misdemeanor for all purposes” language in section 1170.18, subdivision
(k) be applied retroactively, we conclude that the application of section 1170.18,
subdivision (k) is prospective only. (See People v. Rivera (2015) 233 Cal.App.4th 1085,
1100 [“the phrase ‘shall be considered a misdemeanor for all purposes’ in section
1170.18, subdivision (k) does not apply retroactively”].)
Nor are we persuaded by defendant’s argument that analogous case law
establishes that redesignated misdemeanors cannot serve as the basis for prior prison
enhancements under section 667.5, subdivision (b). He relies on Park, supra, 56 Cal.4th
782, People v. Flores (1979) 92 Cal.App.3d 461 (Flores), In re Acker (1984) 158
Cal.App.3d 888 (Acker), and People v. Culbert (2013) 218 Cal.App.4th 184 (Culbert).
In Park, the California Supreme Court construed the language that a wobbler
becomes a “ ‘misdemeanor for all purposes’ ” in section 17, subdivision (b). (Park, supra,
56 Cal.4th at pp. 790-804.) The court stated: “From the decisions addressing the effect
and scope of section 17(b), we discern a long-held, uniform understanding that when a
wobbler is reduced to a misdemeanor in accordance with the statutory procedures, the
offense thereafter is deemed a ‘misdemeanor for all purposes,’ except when the
Legislature has specifically directed otherwise.” (Park, at p. 795, italics added.) The
court noted that “[t]he language of section 17 added in 1874 . . . gave rise to the . . . rule
that if the court exercised its discretion by imposing a sentence other than commitment to
state prison, the defendant stood convicted of a misdemeanor, but only from that point

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forward; classification of the offense as a misdemeanor did not operate retroactively to
the time of the crime's commission, the charge, or the adjudication of guilt.” (Park, at
p. 791, fn. 6.)
In Park, the defendant’s wobbler had been reduced to a misdemeanor “before
defendant committed the current crimes,” and thus before the trial court used the prior
convictions to enhance their sentences. (Park, supra, 56 Cal.4th at p. 787.) Park is
distinguishable from the present case. In contrast to Park, here, the trial court imposed
the one-year term for the section 667.5, subdivision (b) enhancement in August 2013,
which was more than two years before the trial court redesignated the underlying offense
to a misdemeanor in case No. F14501. Defendant’s reliance on Flores, Acker, and
Culbert is misplaced for the same reason. (Flores, supra, 92 Cal.App.3d at pp. 464, 470
[the defendant’s 1966 conviction, which became a misdemeanor in 1975, could not serve
as the basis for a prior prison term enhancement when defendant was sentenced for a
1977 crime]; Acker, supra, 158 Cal.App.3d at pp. 889-890, 892 [the trial court’s grant of
probation for a 1978 felony conviction under section 1170, subdivision (d) “erased the
prison commitment” which provided the basis for a section 667.5, subdivision (b)
enhancement when the defendant was sentenced for a 1981 crime]; Culbert, supra, 218
Cal.App.4th at pp. 188, 193 [the defendant’s 1999 conviction, which was reduced to a
misdemeanor pursuant to section 17, subdivision (b)(3), did not qualify as a prior serious
felony as a basis for a section 667, subdivision (a) enhancement when the defendant was
sentenced for a 2010 crime]).
Defendant acknowledges that several Court of Appeal decisions have held that
section 1170.18 does not allow for the dismissal of a prior prison term enhancement
when the sentence was final before the redesignation of the felony. (Valenzuela, supra,
244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v. Ruff (2016) 244
Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Carrea (2016) 244

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Cal.App.4th 966, review granted April 27, 2016, S233011; People v. Williams (2016) 245
Cal.App.4th 458, review granted May 11, 2016, S233539.) However, he claims these
cases are distinguishable. Defendant contends that he was seeking prospective, not
retroactive, application of section 1170.18, because the underlying conviction for the
section 667.5 enhancement had been reduced to a misdemeanor before he was
resentenced in case No. F22948 in January 2016.
Even assuming that defendant was seeking prospective application of section
1170.18, the trial court did not err when it refused to strike the prior prison term
enhancement. People v. Acosta (2016) 247 Cal.App.4th 1072 (Acosta), review granted
August 17, 2016, S235773, is instructive. In Acosta, the appellate court considered
whether the trial court had properly imposed prior prison term enhancements even though
the underlying felony convictions had been reduced to misdemeanors pursuant to
Proposition 47. (Acosta, at p. 1078.) The Acosta court interpreted the phrase “for all
purposes” in section 1170.18, subdivision (k) as applying to “the simple status of
conviction of a felony,” which is “the plain, unambiguous, and only reading of the
statute.” (Acosta, at p. 1078.) The court reasoned: “There is no mention of the separate
and distinct enhancement of prior prison term service in Proposition 47. Section 1170.18,
subdivision (k) cannot be construed to apply to the actual service of a prison term.
Crediting appellant’s contention would be a windfall beyond the imagination of the
drafters of Proposition 47. We certainly cannot impute such knowledge to the electorate
since there is no mention of it in Proposition 47. Indelible erasure of such for all time for
subsequent felonies would be an extreme and unreasonable gift to a recidivist. [¶] The
person who has served a term in prison has had the opportunity for a ‘crime-free
cleansing period of rehabilitation . . . [and] the opportunity to reflect upon the error of his
or her ways.’ [Citations.] This status is something different, and in addition to a simple
felony conviction. . . . There is an obvious distinction between a convicted felon who has

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not been sentenced to prison and a person who has done time in the state penitentiary. . . .
[¶] . . . [N]othing in Proposition 47 expressly mentions that an offender is relieved of the
penal consequences of having served a term in prison.” (Acosta, at pp. 1078-1079.) We
agree with the reasoning in Acosta.7
III. Disposition
The order is affirmed.
7 Defendant also contends that he may not be denied relief on the ground that his
conviction was based on a plea agreement. Here, as previously discussed, defendant was
not eligible for relief under Proposition 47.

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_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.

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