California Court of Appeal Jun 1, 2015 No. B255297Published
Before: Turner, Mosk, Goodman
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION*]
Filed: 6/1/15 CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B255297
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA418152) v.
LENNAL KHABIR SHABAZZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Edmund Willcox Clarke, Jr., Judge. Affirmed as modified. Sylvia Ronnau, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100(b) and 8.1110, this opinion is certified for publication with the exception of parts II (A), II (C) and their headings.
I. INTRODUCTION
Defendant, Lennal Khabir Shabazz, appeals after pleading no contest to two
reduce defendant’s two felony convictions to misdemeanors. After defendant completed
his sentence, on November 4, 2014, the voters approved Proposition 47. (Prop. 47, as
approved by voters, Gen. Elec. (Nov. 4, 2014).) As we will explain, defendant, if he files
an application in the trial court, is potentially entitled to have his felony convictions
reduced to misdemeanors provided he does not have a disqualifying prior conviction.
(§ 1170.18, subds. (f)-(h).) At issue is whether we can order the reduction of his felony
convictions to misdemeanors. For the reasons we explain, we cannot because the voters
have expressly required he file an application in the trial court to reduce his felony
convictions to misdemeanors. In the unpublished portion of this opinion, we modify the
1 Further statutory references are to the Penal Code except where otherwise noted.
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judgment to include a mandatory $50 criminal laboratory analysis fee together with $155
in penalties and a surcharge. We affirm the judgment as modified.
[Part II (A) is deleted from publication. See post at page 4 where publication is to
resume.]
II. DISCUSSION
A. Initial Briefing Order
We appointed counsel to represent defendant on appeal. After reviewing the
record, appointed appellate counsel filed an opening brief in which no issues were raised.
Instead, appointed appellate counsel requested we independently review the entire record
on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins
(2000) 528 U.S. 259, 277-284.) On September 19, 2014, we advised defendant that he
had 30 days within which to personally submit any contentions or arguments he wished
us to consider. Also on September 19, 2014, defendant filed an objection to the Wende
brief. However, defendant’s letter brief did not raise any cognizable claim. No further
response has been received from defendant. We have examined the entire record and are
satisfied appointed appellate counsel has now fully complied with her responsibilities.
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[Part II (B) is to be published.]
B. Proposition 47
We asked the parties to brief the question whether we must designate defendant’s
convictions misdemeanors rather than felonies or take some other action. As noted
above, defendant was convicted of felony violations of section 496, subdivision (a) and
Health and Safety Code, section 11377, subdivision (a). However, on November 4, 2014,
after defendant was sentenced, after he had completed his concurrent felony sentences,
and while this appeal was pending, the voters approved Proposition 47. (Prop. 47, as
approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative: added Government Code
Chapter 33 (§ 7599 et seq., the “Safe Neighborhoods and Schools Fund”); added sections
459.5, 490.2 and 1170.18 to the Penal Code; amended sections 473, 476a, 496 and 666 of
the Penal Code; and amended Health and Safety Code sections 11350, 11357 and 11377.
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) The
electorate’s stated purpose and intent was to: “(1) Ensure that people convicted of
murder, rape, and child molestation will not benefit from this act. [¶] (2) Create the
Safe Neighborhoods and Schools Fund . . . for crime prevention and support programs in
K-12 schools, . . . for trauma recovery services for crime victims, and . . . for mental
health and substance abuse treatment programs to reduce recidivism of people in the
justice system. [¶] (3) Require misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless the defendant has prior
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convictions for specified violent or serious crimes. [¶] (4) Authorize consideration of
resentencing for anyone who is currently serving a sentence for any of the offenses listed
herein that are now misdemeanors. [¶] (5) Require 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. [¶] (6) [And to] save significant state corrections dollars
on an annual basis[] . . . [and] increase investments in programs that reduce crime and
improve public safety, such as prevention programs in K-12 schools, victim services, and
mental health and drug treatment, which will reduce future expenditures for corrections.”
(Ballot Pamp., supra, text of Prop. 47, § 3, p.70.)
Of relevance in the present case, Proposition 47 made certain drug and theft
offenses misdemeanors instead of felonies or alternative felony misdemeanors, including
both offenses for which defendant was convicted. (Ballot Pamp., supra, text of Prop. 47,
§§ 5-13, pp. 71-73.) Except as will be noted, receiving stolen property (§ 496, subd. (a)),
if the value of the property did not exceed $950, and methamphetamine possession are
now misdemeanors.2 There are two relevant circumstances which prevent the application
2 As amended by Proposition 47, section 496, subdivision (a) states: “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in [Section 667, subdivision (e)(2)(C)(iv)], or for an offense requiring registration pursuant to subdivision (c) of
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of the lesser misdemeanor sentences. The first circumstance arises when the defendant
has sustained a prior conviction for any of the violent or serious felonies listed in section
667, subdivision (e)(2)(C)(iv). The second circumstance occurs when the defendant has
previously sustained a conviction for an offense requiring sex offender registration under
section 290, subdivision (c). (Ballot Pamp., supra, text of Prop. 47, §§ 9, 13, 14; §
1170.18, subd. (i).) Here, the parties agree that the value of the stolen property defendant
received did not exceed $950. The parties further agree defendant does not appear to
have any disqualifying prior conviction.
As we view the issue, this is in large part a matter of the scope of the retroactive
application of section 1170.18. If the voters had merely made Health and Safety Code
responsibilities would be clear. We would reduce both of defendant’s convictions to
misdemeanors. We would be required to do so based upon traditional rules concerning
amendatory statutes reducing punishments. (In re Estrada (1965) 63 Cal.2d 740, 742,
Section 290.” (Ballot Pamp., supra, text of Prop. 47, § 9, p.72, italics added in part and omitted in part.) As amended by Proposition 47, Health and Safety Code section 11377, subdivision (a) provides: “Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any [specified] controlled substance . . . shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in [Section 667, subdivision (e)(2)(C)(iv)] or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.” (Ballot Pamp., supra, text of Prop. 47, § 13, p.73, italics added in part and omitted in part.)
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748 (Estrada); People v. Keith (2015) 235 Cal.App.4th 983, 985-986.) But as we will
explain, the issue is not so simple in our context. We are reviewing felony convictions on
direct appeal. And, the voters have expressly enacted procedures to permit the
retroactive application of those portions of Proposition 47 which reduce certain felonies
to misdemeanors. As we shall explain, the voters have not expressed an intention to
permit us on direct appeal to reduce defendant’s felony convictions to misdemeanors
without the filing of an application.
There is no retroactivity issue for an accused convicted after the effective date of
Proposition 47 of violating Health and Safety Code section 11377, subdivision (a) and
section 496, subdivision (a). Unless the accused has a disqualifying prior conviction,
which we will discuss later, he or she may only be convicted of a misdemeanor. Further,
with clarity, the voters intended there be specified retroactive application of the
mitigating sentencing provisions of Proposition 47 for an accused sentenced prior to its
effective date. We now turn to the two ways an accused sentenced (or placed on
probation) prior to Proposition 47’s effective date may secure the initiative’s retroactive
application.
Section 1170.18 identifies two ways a defendant sentenced or placed on probation
prior to Proposition 47’s effective date can have his or her sentence for an enumerated
felony reduced to a misdemeanor. First, pursuant to section 1170.18, subdivision (a), the
defendant may file a petition if she or he is currently serving a felony sentence for an
enumerated offense. Section 1170.18, subdivision (a) states in part, “A person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
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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 Section[] . . . 11377 of the Health and Safety Code, or
Section . . 496 . . . of the Penal Code, as those sections have been amended or added by
this act.” Thus, if a defendant is serving a sentence for an enumerated offense in section
1170.18, subdivision (a), then he or she may file a petition. Upon filing the petition, then
the trial court proceeds in compliance with section 1170.18, subdivision (b).3 By its very
terms, section 1170.18, subdivision (a) is inapplicable to defendant. This is because he
completed his sentence on September 24, 2014, and is not subject to any post-judgment
supervision.
Second, if a defendant has completed his or her sentence for an eligible
conviction, in order to secure the reduction to a misdemeanor, an application must be
3 Section 1170.18, subdivision (b) states: “Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to 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, those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following: [¶] (1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes. [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.”
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filed. Section 1170.18, subdivisions (f) through (g) specify the defendant must file an
application and describes a procedure for the trial court to rule upon it. Section 1170.18,
subdivision (f) states, “A person who has completed his or her sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the time of the offense, may file
an application before the trial court that entered the judgment of conviction in his or her
case to have the felony conviction or convictions designated as misdemeanors.” Upon
the filing of the application by an eligible defendant, the trial court is required to reduce
the felony offense or offenses to a misdemeanor. Section 1170.18, subdivision (g) states,
“If the application satisfies the criteria in subdivision (f), the court shall designate the
felony offense or offenses as a misdemeanor.” Unless the defendant requests otherwise,
no hearing is necessary in order to rule upon the application filed under section 1170.18,
subdivision (f). (§ 1170.18, subd. (h).)
Defendant falls under section 1170.18, subdivisions (f) through (h). Unlike an
accused who is serving a sentence, on September 24, 2014, defendant has completed the
two-year concurrent felony terms imposed on March 21, 2014. Putting aside
jurisdictional issues as an appeal is pending, which we need not decide, if defendant filed
an application today, the trial court would be duty bound to grant it. That does not
answer the question though of what we, as an appellate court, must do. We view this as
an issue of whether the voters intended an appellate court, in the absence of a filing of an
application, may order felonies reduced to misdemeanors.
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We turn to the question whether Proposition 47 applies to defendant on appeal.
Defendant has served his concurrent sentences. If he filed an application to have his
felony sentences designated as misdemeanors, it is the general rule that new statutes
apply prospectively only. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 319; People v.
Hayes (1989) 49 Cal.3d 1260, 1274.) Section 3 states, “No part of [the Penal Code] is
retroactive, unless expressly so declared.” However, our Supreme Court has carved out
“an important, contextually specific qualification” to the rule set forth in section 3.
(People v. Brown, supra, 54 Cal.4th at p. 323; accord, People v. Hajek and Vo (2014) 58
Cal.4th 1144, 1195 (Hajek).) In Estrada, supra, 63 Cal.2d at pages 742 and 748, our
Supreme Court held that an amendatory statute reducing punishment for a crime applies
in all cases not yet final on appeal. But this general rule does not apply when the
Legislature or the electorate has clearly indicated they did not so intend. (Accord, Hajek,
supra, 58 Cal.4th at pp. 1195-1196; People v. Brown, supra, 54 Cal.4th at p. 324.) As
(a)); and a $10 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)).
The judgment is affirmed in all other respects.
CERTIFIED FOR PARTIAL PUBLICATION
TURNER, P. J. We concur:
MOSK, J. GOODMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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AI Brief
AI-generated · verify before citing
Holding. The court held that it cannot order the reduction of a defendant's felony convictions to misdemeanors under Proposition 47 on direct appeal; instead, the defendant must file an application in the trial court as required by the initiative's statutory procedures.
Issues
Whether an appellate court can order the reduction of felony convictions to misdemeanors under Proposition 47 without a trial court application.
Whether the trial court's failure to impose a mandatory criminal laboratory analysis fee and associated penalties requires modification of the judgment.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“the voters have expressly required he file an application in the trial court to reduce his felony convictions to misdemeanors.”
“the voters never intended that Proposition 47 would automatically apply to allow us to reduce defendant’s two felonies to misdemeanors.”