California Court of Appeal Jun 9, 2015 No. E061273Unpublished
Filed 6/9/15 P. v. Whitehorn CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061273
v. (Super.Ct.No. RIF1305052)
MARCUS DSHAUN WHITEHORN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Marcus Dshaun Whitehorn, in pro. per.; Arielle Bases, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF THE CASE
On February 3, 2014, an information charged defendant and appellant Marcus
Dshaun Whitehorn with unlawful possession of a controlled substance, to wit,
methamphetamine, a felony, under Health and Safety Code section 11377, subdivision (a)
Code, § 11377, subd. (a).) Here, the record does not indicate that defendant has been
3 The only repeat offense exclusion for a Proposition 47 qualifying offense involves writing bad checks under Penal Code section 476, subdivision (b).
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convicted of any crimes that would exclude him from misdemeanor sentencing under
Proposition 47.
The next determination is the issue in dispute on appeal: Whether defendant is
entitled to a remand for automatic misdemeanor resentencing for his conviction under the
newly modified Health and Safety Code section 11377, subdivision (a). To make this
determination, we must assess Proposition 47’s creation of Penal Code section 1170.18.
Section 1170.18, states, in relevant part:
“(a) 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 . . . as those sections have been amended
or added by this act.
“(b) 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, [as] 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 . . . .
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“(c) As used throughout this Code, ‘unreasonable risk of danger to public safety’
means an unreasonable risk that the petitioner will commit a new violent felony within
the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667.”
Here, defendant argues, under In re Estrada (1965) 63 Cal.2d 740 (Estrada), that
he is entitled to a remand to receive automatic misdemeanor resentencing under Health
and Safety Code section 11377, subdivision (a).
Penal Code section 34 embodies the general rule of statutory construction that,
when a statute does not have an express retroactivity provision, it will be presumed that
the Legislature intended the statute to operate prospectively and not retroactively in the
absence of clear extrinsic sources that the Legislature intended retroactive application.
(People v. Brown (2012) 54 Cal.4th 314, 319; People v. Floyd (2003) 31 Cal.4th 179,
184.) Sharply departing from the language of Penal Code section 3, Estrada held that an
amendatory act imposing a lighter punishment could be applied constitutionally to acts
committed before its passage provided that the judgment convicting the defendant was
not final.5 (People v. Brown, at pp. 323-324; People v. Floyd, at p. 184; Estrada, supra,
63 Cal.2d at pp. 742-748.) Estrada is “properly understood, not as weakening or
modifying the default rule of prospective operation codified in section 3, but rather as
4 Penal Code section 3 states: “No part of it is retroactive, unless expressly so declared.” 5 A judgment is not final if the courts may provide a remedy on direct appellate review, including time within which to petition the United States Supreme Court for a writ of certiorari. (People v. Yearwood (2013) 213 Cal.App.4th 161, 171-172.)
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informing the rule’s application in a specific context by articulating the reasonable
presumption that a legislative act mitigating the punishment for a particular criminal
offense is intended to apply to all nonfinal judgments.” (People v. Brown, at p. 324.)
However, Estrada does not apply if there is an express savings clause or its
equivalent in the statute. (People v. Floyd, supra, 31 Cal.4th at pp. 184-185; People v.
Nasalga (1996) 12 Cal.4th 784, 793; Estrada, supra, 63 Cal.2d at p. 747.) When the
Legislature repeals a statute but intends to save the rights of litigants in pending actions,
it may do so with an express savings clause in repealing the statute. (Bourquez v.
Superior Court (2007) 156 Cal.App.4th 1275, 1284.) However, an express savings
clause is not required if the Legislature demonstrates its intention with sufficient clarity
that a reviewing court can discern and effectuate it. (People v. Yearwood, supra, 213
Cal.App.4th at p. 173; Bourquez v. Superior Court, at p. 1284.)
The interpretation of a ballot initiative is governed by the same rules that apply to
construing a statute enacted by the Legislature. (People v. Park (2013) 56 Cal.4th 782,
796.) First, the language of the statute is given its ordinary and plain meaning. (Robert
L. v. Superior Court (2003) 30 Cal.4th 894, 901.) Second, the statutory language is
construed in the context of the statute as a whole and within the overall statutory scheme
to effectuate the voters’ intent. (Ibid.) And, statute addressing the same subject matter
and enacted at the same time should be construed together. (People v. Honig (1996) 48
Cal.App.4th 289, 327; Stickel v. Harris (1987) 196 Cal.App.3d 575, 590.) Third, where
the language is ambiguous, the court will look to “‘“other indicia of the voters’ intent,
particularly the analyses and arguments contained in the official ballot pamphlet.”
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[Citation.]’ [Citation.]” (Robert L. v. Superior Court, at p. 901; People v. Floyd, supra,
31 Cal.4th at pp. 187-188.) Any ambiguities in an initiative statute 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.” (People v. Cruz (1996) 13 Cal.4th 764,
783.) Ultimately, the court’s duty is to interpret and apply the language of the initiative
“so as to effectuate the electorate’s intent.” (Robert L. v. Superior Court, supra, 30
Cal.4th at p. 901.)
As to Proposition 47, there is ‘no clear and unavoidable implication’ of
retroactivity. Therefore, under Penal Code section 3, it must be presumed that the voters
intended Proposition 47 to operate prospectively and not retroactively.
Moreover, as noted ante, Penal Code section 1170.18, subdivision (a), states that,
“A person currently serving a sentence for a conviction, . . . 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.” The ordinary and plain
meaning of those words is that Penal Code section 1170.18 applies to any defendant who
was serving a sentence for a Proposition 47 qualifying offense when that initiative
became effective, regardless of whether the judgment of conviction was final. Penal
Code section 1170.18 could have been drafted to apply only to defendants whose
judgments were final before the proposition’s effective date. It was not. There is no
ambiguity. Hence, the finality of judgment is not determinative for purposes of Penal
Code section 1170.18, subdivision (a), and it operates as the functional equivalent of a
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savings clause giving amended Health and Safety Code section 11377, and other
amended sections under the act, prospective-only application.
Furthermore, to the extent there is any ambiguity, that interpretation of Penal Code
section 1170.18, subdivision (a), is consistent with the voters’ intent in passing
Proposition 47, as evidenced in the General Election Voter Information Guide for
November 4, 2014. In the Official Title and Summary, it states that Proposition 47
“[r]equires resentencing for persons serving felony sentences for these offenses unless
[the] court finds unreasonable public safety risk.” (Voter Information Guide, supra, text
of Prop. 47 at p. 34.) Under the title “Resentencing of Previously Convicted Offenders,”
it states, “[t]his measure allows offenders currently serving felony sentences for the
above crimes to apply to have their felony sentences reduced to misdemeanor sentences.”
(Id. at p. 36.) It continues, “the measure states that a court is not required to resentence
an offender currently serving a felony sentence if the court finds it likely that the offender
will commit a specified severe crime.” (Ibid.) Under the title “State Effects of Reduced
Penalties,” it states that, “the resentencing of inmates currently in state prison could result
in the release of several thousand inmates.” (Ibid.)
Additionally, in the official argument against Proposition 47, opponents argued:
“Prop. 47 will require the release of thousands of dangerous inmates. Felons with prior
convictions for armed robbery, kidnapping, . . . and many other serious crimes will be
eligible for early release under Prop. 47. These early releases will be virtually mandated
by Proposition 47. While Prop. 47’s backers say judges will be able to keep dangerous
offenders from being released early, this is simply not true. Prop. 47 prevents judges
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from blocking the early release of prisoners except in very rare cases.” (Voter
Information Guide, supra, argument against Prop. 47 at p. 39.)
In the official rebuttal argument of Proposition 47, proponents of Proposition 47
responded: “Proposition 47 does not require automatic release of anyone. There is no
automatic release. It includes strict protections to protect public safety and make sure
rapists, murderers, molesters and the most dangerous criminals cannot benefit.” (Voter
Information Guide, supra, rebuttal to argument against Prop. 47 at p. 39.)
Thus, from the analysis and arguments from the voter guide, one of the major
issues over Proposition 47 that was presented to the voters was whether dangerous
criminals would be released automatically from custody. The voters were repeatedly
assured by proponents that dangerous criminals would not be released because there was
the safeguard of a trial court making a determination of an unreasonable risk to public
safety. In fact, the voters were told that there would be no “automatic release.”
Proposition 47 proponents assured the public that those who were already incarcerated
would not be granted automatic misdemeanor resentencing, and be released from
incarceration. Instead, they could only be granted resentencing if a trial court determined
each of the incarcerated was not an unreasonable risk to public safety. Because an
incarcerated defendant’s potential dangerousness is not related to whether his appeal is
still pending, there is nothing in Proposition 47 to support defendant’s argument that
those already sentenced would receive automatic misdemeanor resentencing because
their case was not final.
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Therefore, we find that Health and Safety Code section 11377, and other amended
sections under Proposition 47, have prospective-only application because there is “no
clear and unavoidable implication” of retroactivity under Penal Code section 3.
Moreover, the Estrada rule does not apply because Penal Code section 1170.18,
subdivision (a), is the functional equivalent of a savings clause, and a prospective-only
application is consistent with the public safety purpose of not granting misdemeanor
resentencing without a determination of a defendant’s risk of dangerousness.
Penal Code section 1170.18, subdivision (m), does not alter this conclusion.
Section 1170.18, subdivision (m), states: “Nothing in this section is intended to diminish
or abrogate any rights or remedies otherwise available to the petitioner or applicant.”
To interpret Penal Code section 1170.18, subdivision (m), as allowing automatic
resentencing would be to render subdivisions (a) and (b) surplusage because a defendant
already sentenced for a Proposition 47 qualifying crime would not have to file, as
subdivisions (a) and (b) require, a petition for recall of sentence. This would defy the
basic principle of statutory construction that language should be construed in the context
of the overall statutory scheme as a whole, and that significance should be given to every
word, phrase, sentence, and part of an act pursuant to the legislative purpose. (People v.
(m), simply protects defendants who have already been sentenced from being forced to
choose between filing a petition for recall of sentence and pursuing remedies to which
they may be entitled, such as filing an appeal or a petition for writ of habeas corpus.
Penal Code section 1170.18, subdivision (m), does not have any impact on whether
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amended Health and Safety Code section 11377, or other sections amended by
Proposition 47, operate prospectively or retroactively.
Furthermore, a trial court does not have jurisdiction over a cause during the
pendency of appeal as to anything that may affect the judgment. (People v. Flores (2003)
30 Cal.4th 1059, 1064; People v. Johnson (1992) 3 Cal.4th 1183, 1257.) Thus, a Penal
Code section 1170.18 petition for recall of sentence under Proposition 47 must be filed
once the judgment is final and jurisdiction of the case has been returned to the trial court.
Here, defendant’s eligibility for recall of sentence should be determined at that time. A
petition for recall of sentence under Penal Code section 1170.18 can be filed within three
years after the effective date of Proposition 47 or a later date upon a showing of good
cause. (Pen. Code, § 1170.18, subd. (j).) The pendency of appellate proceedings and
consequent lack of jurisdiction in the trial court would necessarily constitute good cause
for a filing delay. (See People v. Yearwood, supra, 213 Cal.App.4th at p. 177 [appellate
proceedings constitute good cause for delayed filing of a petition under Penal Code
section 1170.126, subdivision (b), of the Three Strikes Reform Act of 2012].) Therefore,
the length of the appellate process does not foreclose defendant from seeking relief by
filing a petition for recall of sentence under Penal Code section 1170.18.
In conclusion, because defendant is currently serving a sentence for felony
conviction that has changed to a misdemeanor under Proposition 47, he must file a
petition for recall of sentence in the trial court after his judgment is final in the trial court
to determine if he is excluded from Proposition 47 resentencing by posing an
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unreasonable risk of danger to public safety. 6 In this case, we note that defendant has
already filed a petition for resentencing with the trial court on January 15, 2015. We hereby
order the trial court to make a ruling on defendant’s petition after his judgment is final on appeal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.
6 We note that on February 18, 2015, the California Supreme Court granted review of People v. Chaney (2014) 231 Cal.App.4th 1391, review granted February 18, 2015, S223676, which held that the definition of “unreasonable risk of danger to public safety” from Proposition 47 does not apply retroactively to petitions for recall and resentencing under the Reform Act. On this same date, the California Supreme Court also granted review of People v. Valencia (2014) 232 Cal.App.4th 514, review granted February 18, 2015, S223825, which held that the literal meaning of section 1170.18, subdivision (c), as added by Proposition 47 does not comport with the purpose of the Reform Act, and applying it to resentencing proceedings under the Reform Act would frustrate, rather than promote, that purpose and the intent of the electorate in enacting both initiative measures.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Proposition 47 does not apply retroactively to nonfinal judgments, and defendants seeking resentencing under the initiative must follow the petition procedures set forth in Penal Code section 1170.18.
Issues
Whether Proposition 47 applies retroactively to nonfinal judgments under the rule in In re Estrada.
Whether Penal Code section 1170.18 acts as a savings clause requiring defendants to petition for resentencing rather than receiving automatic relief.