California Court of Appeal Jul 23, 2015 No. D067078Unpublished
Filed 7/23/15 P. v. Carver CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067078
Plaintiff and Respondent,
v. (Super. Ct. No. SCD255241)
BENJAMIN RICHARD CARVER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.
Alksne, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E.
Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Prior to passage of Proposition 47, appellant Benjamin Richard Carver, pled guilty
to one count of possessing concentrated cannabis in violation of Health and Safety Code
section 11357, subdivision (a). The trial court suspended imposition of sentence and
placed appellant on three years formal probation. Appellant filed a notice of appeal and a
later supplemental notice of appeal based, in part, on matters that occurred after his guilty
At both the time of appellant's guilty plea and the trial court's order placing him on
formal probation, violation of Health and Safety Code section 11357, subdivision (a),
could be treated as a misdemeanor or a felony. On November 4, 2014, the voters
approved Proposition 47, the "Safe Neighborhoods and Schools Act." Among other
matters, Proposition 47 makes violation of Health and Safety Code section 11357,
subdivision (a), a misdemeanor, unless, because of the defendant's prior conviction of a
so-called "super strike" offense (Pen. Code, § 667, subd. (e)(2)(C)(iv)), or an offense
which requires registration as a sex offender (Pen. Code, § 290), felony sentencing is
required. Proposition 47 sets forth specific procedures by which those who are serving,
or have completed, felony sentences for violation of enumerated drug and theft crimes,
may have their convictions reduced to misdemeanors.
On appeal, appellant asks that we determine as a matter of law that his conviction
is a misdemeanor and that we remand his case for resentencing. We decline to do so.
Although, because the predicates to felony sentencing under Proposition 47 do not appear
in the record and therefore it is quite likely that misdemeanor sentencing will be ordered
by the trial court upon petition by appellant, the terms of Proposition 47 do not permit us
to provide that relief on direct appeal.
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FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2014, after appellant and an undercover police officer engaged in a
conversation near the seawall at the end of 5000 Newport Avenue in Ocean Beach,
appellant placed a small plastic bag of marijuana under a skateboard. The officer
retrieved the plastic bag and left $40 in marked currency under the skateboard.
Thereafter appellant was arrested and found in possession of the marked $40. Appellant
was charged in a felony complaint with one count of selling marijuana in violation of
Health and Safety Code section 11360, subdivision (a).
At his jury trial, appellant contested the undercover officer's description of the
circumstances surrounding their encounter and the jury was unable to reach a verdict.
The trial court declared a mistrial.
On September 23, 2014, pursuant to an agreement between the parties: the district
attorney added a second count to the complaint, which alleged appellant had possession
of concentrated marijuana in violation of Health and Safety Code section 11357,
subdivision (a); appellant pled guilty to the added count; in exchange for appellant's
guilty plea, the district attorney agreed the sales count could be dismissed. In the course
of taking appellant's plea, the trial court advised appellant he was pleading guilty to a
felony, that if probation was revoked and appellant was sent to prison, the instant
conviction would be treated as a "prison prior." The trial court further advised appellant
that as a consequence of his plea, appellant could not possess a firearm.
On October 21, 2014, the trial court suspended imposition of sentence on appellant
and instead placed appellant on three years of formal probation.
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On November 4, 2014, the voters adopted Proposition 47.
On November 26, 2014, appellant filed a notice of appeal with a request for a
certificate of probable cause, which was denied. On December 12, 2014, appellant filed a
supplemental notice of appeal based in part on matters occurring after his guilty plea.
DISCUSSION
As we indicated at the outset, on appeal appellant only seeks relief under
Proposition 47. As we have indicated, such relief is not available on his appeal.
I
Although not addressed by the parties, we briefly take up the questions of whether
appellant's case and conviction involve a felony or a misdemeanor. The answers to these
questions in turn are dispositive with respect to our jurisdiction over his appeal and the
availability, either here or in the trial court, of relief under Proposition 47.
A. Jurisdiction
Generally we have jurisdiction over appeals from felony cases; we have no
appellate jurisdiction over appeals in misdemeanor cases. (People v. Nickerson (2005)
128 Cal.App.4th 33, 36.) Here, as we have noted, appellant was initially charged with a
felony violation of section Health and Safety Code section 11360, and later charged with
violation of Health and Safety Code section 11357, subdivision (a). For purposes of our
appellate jurisdiction, where, as here, a case was initiated as a felony, it is considered a
felony "case" and we have jurisdiction over any direct appeal. (See Cal. Rules of Court,
rule 8.304(a); People v. Lynall (2015) 233 Cal.App.4th 1102, 1111.)
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B. Availability of Relief Under Section 47
In its broadest terms, Proposition 47 reduced to misdemeanors enumerated drug
and theft offenses, which had either been felonies or so-called wobblers, that is, offenses
which may be treated as either a felony or a misdemeanor. As we have noted, at the time
of appellant's offense and at the time he was placed on probation, violation of Health and
Safety Code section 11375, subdivision (a) was a wobbler. Only if appellant was
convicted of a felony does Proposition 47 provide him with any relief; if he was
convicted of a misdemeanor, appellant has been provided all the relief available under
Proposition 47.
"When a defendant is convicted . . . of a wobbler . . . his or her offense is 'deemed
a felony' unless subsequently 'reduced to a misdemeanor by the sentencing court'
pursuant to [Penal Code] section 17, subdivision (b)."1 (People v. Feyrer (2010) 48
Cal.4th 426, 438-439.)
1 Penal Code section 17, subdivision (b), states: "(b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of [Health and Safety Code] [s]ection 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: "(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of [Health and Safety Code] [s]ection 1170. "(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. "(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. "(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless 5
Here, the trial court did not, under Penal Code section 17, subdivision (b), find that
appellant's violation of Health and Safety Code section 11375, subdivision (b) was a
misdemeanor. Indeed its remarks at the time of appellant's plea indicate quite clearly that
it believed appellant was pleading to a felony. Accordingly, we must treat his conviction
as a felony, for which relief under Proposition 47 is available.
II
This brings us to the parties' principal dispute: whether we have power to provide
appellant relief under Proposition 47 on appeal or whether he must seek such relief in the
trial court. This question was discussed by the court recently in People v. Shabazz (2015)
237 Cal.App.4th 303 (Shabazz). Like the court in Shabazz, we conclude that on this
record we do not have the power to provide Proposition 47 relief on appeal.
A. Proposition 47
On November 4, 2014, after appellant was sentenced, the voters approved
Proposition 47. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The
initiative: added Gov. Code Chapter 33 (§ 7599 et seq., the "Safe Neighborhoods and
Schools Fund"); added §§ 459.5, 490.2 and 1170.18; amended §§ 473, 476a, 496 and
666; 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 stated
the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. "(5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint." 6
purpose and intent of the proposition 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 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.)
In particular Proposition 47 made certain drug and theft offenses misdemeanors
instead of felonies or wobblers. (Ballot Pamp., supra, text of Prop. 47, §§ 5-13, pp. 71-
73.) Except under circumstances we will discuss, possession of concentrated marijuana
is now a misdemeanor. (Health & Saf. Code, § 11357, subd. (a).) As we noted at the
outset, under Proposition 47 two circumstances may prevent application of its new lesser
misdemeanor sentences: first, misdemeanor sentencing is not available if the defendant
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has sustained a prior conviction for any of the violent or serious felonies listed in Penal
Code section 667, subdivision (e)(2)(C)(iv); second, misdemeanor sentencing is
foreclosed when a defendant has previously sustained a conviction for an offense
requiring sex offender registration under Penal Code section 290, subdivision (c). (Ballot
Pamp., supra, text of Prop. 47, §§ 9, 13, 14; § 1170.18, subd. (i).)
Where an accused is, or was, convicted of violating Health and Safety Code
section 11357, subdivision (a), or any of the other offenses enumerated in Proposition 47
after its effective date, unless the accused has a disqualifying prior conviction, he or she
may only be convicted of a misdemeanor. Where an accused was convicted before
adoption of Proposition 47, the voters provided in Health and Safety Code section
1170.18, specific processes for retroactive application of the initiative's mitigating
sentencing provisions: When a defendant is currently serving a felony sentence for one
of the offenses enumerated in Proposition 47, the defendant 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 the lesser sentence provided by the initiative.
(Health & Saf. Code, § 1170.18, subd. (a).)
On the other hand, if a defendant has completed his or her sentence for an eligible
conviction, he or she must file an application in the trial court. (Health & Saf. Code,
§ 1170.18, subd. (a).) If the application satisfies the criteria for reduction, "the court shall
designate the felony offense or offenses as a misdemeanor." (Id., subd. (g).) Unless the
defendant requests otherwise, no hearing is necessary in order to rule upon the
application filed under subdivision (f). (Id., subd. (h).)
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B. Shabazz
In Shabazz, although the defendant's appeal from his felony theft and
methamphetamine convictions was pending at the time Proposition 47 was adopted, he
had completed his concurrent sentence on those convictions. He argued that on appeal
the Court of Appeal was required to reduce his convictions to misdemeanors. In rejecting
the defendant's argument, the court stated:
"The question arises, then, whether Proposition 47 applies retroactively so that we
must reduce defendant's convictions from felonies to misdemeanors. Stated differently,
the issue is whether the electorate intended the amendatory provisions of Proposition
47—reducing defendant's crimes from felonies to misdemeanors—to be automatically
applied on appeal. As our Supreme Court held in [In re] Estrada (1965) 63 Cal.2d [740]
at page 744, [(Estrada)] whether the amendatory initiative lessening punishment applies
retroactively is a question of legislative, or, in our case, voter intent. And our Supreme
Court reaffirmed in In re Pedro T. [(1994)] 8 Cal.4th [1041] at page 1045, 'The basis of
our decision in Estrada was our quest for legislative intent.' Further, in People v.
1170.18, subdivision (f), requires that an application be filed and resolved in the trial
court. In other words, Proposition 47 does not apply retroactively so as to permit us to
modify the judgment and then direct that, upon remittitur issuance, defendants'
convictions be designated misdemeanors. Defendant is limited to the statutory remedy set
forth in [Health and Safety Code] section 1170.18, subdivision (f). He must file an
application in the trial court to have his felony convictions designated misdemeanors."
C. Analysis
We agree with the court in Shabazz. In light of the fact that provisions of
Proposition 47 set forth specific trial court procedures available to defendants seeking the
reduction of sentences imposed before the initiative was approved, it is clear voters did
not intend that we order such reduction on appeal. In this regard we note that the
reduction in sentencing provided by Proposition 47 is not unconditional, and that the trial
court is in a much better position to resolve any disputes with respect to whether a
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particular defendant is entitled to a sentence reduction. The relief provided by
Proposition 47 is clearly distinguishable from the unconditional sentence reduction
considered in Estrada.
Although it appears from the record here that appellant does not have any prior
conviction that would disqualify him from relief under Proposition 47, he must seek relief
from his felony conviction in the trial court.2
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
I CONCUR:
HUFFMAN, J.
I CONCUR IN THE RESULT:
HALLER, J.
2 Our judgment is of course without prejudice to relief available to appellant in the trial court under Health and Safety Code section 1170.18. 12
AI Brief
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Holding. The court held that it lacks the authority to grant Proposition 47 relief on direct appeal, as the initiative mandates that defendants seeking to reduce prior felony convictions to misdemeanors must follow the specific petition procedures in the trial court.
Issues
Whether the appellate court has the authority to reduce a felony conviction to a misdemeanor under Proposition 47 on direct appeal.
Whether Proposition 47 applies retroactively to allow automatic reduction of sentences on appeal.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the terms of Proposition 47 do not permit us to provide that relief on direct appeal.”
“the voters set forth specific procedures for securing the lesser punishment to eligible persons such as defendant. These are the sole remedies available under Proposition 47 for an accused sentenced prior to its effective date.”