People v. Marks (2015) · DecisionDepotFiled 12/23/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063516
v. (Super.Ct.No. RIF1202435)
CHRISTOPHER MARKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
John F. Schuck, 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, Barry Carlton, Seth Friedman and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant Christopher Marks appeals from an order denying his petition for recall
and reduction of sentence under Penal Code section 1170.18 and Proposition 47.
Defendant contends that his prior convictions for violation of Health and Safety Code
section 11350 were eligible for resentencing, and this court should construe his petition
as requesting such relief.
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FACTS AND PROCEDURAL BACKGROUND
On August 10, 2012, defendant entered a plea of guilty to corporal injury on a
spouse or cohabitant (Pen. Code, § 273.5, subd. (a)—count 1) and misdemeanor criminal
threat (Pen. Code, § 422—count 2). Defendant admitted the allegations of six prior
prison term convictions (Pen. Code, § 667.5, subd. (b)), three of which were for
violations of Health and Safety Code section 11350, subdivision (a). Defendant was
initially granted probation, but probation was later revoked and defendant was sentenced
to eight years in state prison (the low term of two years for count 1, plus six years for the
On December 29, 2014, defendant filed a petition for resentencing in the current
case under Penal Code section 1170.18, arguing that his prior convictions under Health
and Safety Code section 11350 should be reduced to misdemeanors. Defendant’s petition
bore the case number of his current offense. The petition stated that on April 17, 2013,
he had been convicted of felony offenses under Health and Safety Code section 11350,
subdivision (a), and those offenses had been classified as misdemeanors. The People
opposed the petition on the ground that a violation of Penal Code section 273.5 was not a
qualifying felony. The trial court denied the petition on that basis.
Defendant submitted a letter regarding his petition in which defendant stated,
“I petition the 4 [sic] prior possession charges. Prop #47.” The trial court held an ex
parte hearing at which the court considered defendant’s letter and again denied the
request for resentencing on the ground that his violation of Penal Code section 273.5,
subdivision (a), was not a qualifying felony.
DISCUSSION
Defendant contends that his prior convictions for violation of Health and Safety
Code section 11350 were eligible for resentencing, and this court should construe his
petition as requesting such relief.
When interpreting a voter initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to
the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We
construe the statutory language “in the context of the statute as a whole and the overall
statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the
voters’ intent, particularly the analyses and arguments contained in the official ballot
Overview of Proposition 47 and Section 1170.18
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
from felonies or wobblers to misdemeanors for qualified defendants and added, among
other statutory provisions, section 1170.18. Section 1170.18 creates a process through
which persons previously convicted of crimes as felonies, which would be misdemeanors
under the new definitions in Proposition 47, may petition for resentencing. (See
generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically,
section 1170.18, subdivision (a), provides: “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 [Proposition 47] that added this section . . . had [Proposition 47]
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 [Proposition 47].”
Section 1170.18, subdivision (f), provides, “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 [Proposition 47] had [Proposition 47] 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.” Section 1170.18, subdivision (g), provides, “If the
application satisfies the criteria in subdivision (f), the court shall designate the felony
offense or offenses as a misdemeanor.”
Although, as noted, defendant’s petition for resentencing bore the current case
number, he argues on appeal that this court should construe the petition as relating to his
prior convictions under Health and Safety Code section 11350, subdivision (a).
However, defendant’s petition bore only the current case number; it did not identify the
case numbers for his prior convictions.
The relief defendant seeks is not resentencing for his former convictions, but
reclassification of those convictions as misdemeanors. Section 1170.18 provides no
procedure for reclassifying prior offenses through a petition for resentencing on a current
conviction. Rather, as to the prior offenses, defendant was required to file a petition
under section 1170.18, subdivision (f), in the court in which he suffered those
The complaint in the current case shows that defendant was convicted of his
Health and Safety Code section 11350 offenses in the County of Los Angeles in 1988,
1997, and 1998. Thus, to have those offenses redesignated as misdemeanors, defendant
was required to file his petition “before the trial court that entered the judgment of
conviction,” the Superior Court for Los Angeles County. (Pen. Code, § 1170.18,
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ P. J.
HOLLENHORST J.