Filed 7/21/16 P. v. Norman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GARLAND TERRELL NORMAN, JR.,

Defendant and Appellant.

F071340

(Super. Ct. Nos. 1469820 & 

1474631)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Scott T. 

Steffen, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Catherine Tennant Nieto, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
2

Defendant Garland Terrell Norman, Jr. contends a prior felony conviction reduced 

to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18)1 may no longer 

form the basis for a prior prison term allegation under section 667.5, subdivision (b), and 

thus we should strike one of his prior prison term enhancements. We affirm.

PROCEDURAL SUMMARY

On April 25, 2014, in case No. 1469820, defendant pled no contest to receiving 

stolen property (§ 496, subd. (a)) and admitted three prior prison term allegations (667.5, 

subd. (b)). The trial court sentenced him to two years in prison, plus three years for the 

three prior prison term enhancements. 

On September 17, 2014, in case No. 1474631, defendant pled no contest to 

second degree burglary (§ 459) and admitted three prior prison term allegations (§ 667.5, 

subd. (b)). The trial court sentenced him to eight months, to be served consecutively to 

the sentence in case No. 1469820. 

On March 11, 2015, the trial court entertained defendant’s Proposition 47 petitions 

for resentencing. It granted the petition in case No. 1469820, reducing the 2014 

conviction for receiving stolen property to a misdemeanor. And it granted the petition in 

case No. 1223142, reducing two counts to misdemeanors, including the 2007 conviction 

for possession of a controlled substance (Health & Saf. Code, § 11377), which served as 

the basis for one of the three prior prison term allegations in case Nos. 1469820 and 

1474631. Defendant unsuccessfully moved for dismissal of the prior prison term 

enhancement based on that reduced conviction. 

In case No. 1474631, the trial court resentenced defendant to two years in prison 

for the burglary, plus three years for the three prior prison term enhancements. In case 

 

1 All statutory references are to the Penal Code unless otherwise noted.
3

No. 1469820, the court resentenced defendant to 180 days, to run consecutively to the 

sentence in case No. 1474631. 

On March 27, 2015, defendant filed a notice of appeal in both cases.

DISCUSSION

On November 4, 2014, California voters enacted Proposition 47, the Safe 

Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera 

(2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theftrelated offenses misdemeanors, unless the offenses were committed by certain ineligible 

defendants. These offenses had previously been designated as either felonies or wobblers 

(crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)

“Proposition 47 also created a new resentencing provision: section 1170.18. 

Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that 

is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and 

request resentencing in accordance with the statutes that were added or amended by 

Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in 

section 1170.18 shall have his or her sentence recalled and be ‘resentenced 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).) Subdivision (c) of section 1170.18 defines the term ‘unreasonable risk of 

danger to public safety,’ and subdivision (b) of the statute lists factors the court must 

consider in determining ‘whether a new sentence would result in an unreasonable risk of 

danger to public safety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera, supra,

233 Cal.App.4th at p. 1092.)

As noted above, on March 11, 2015, the trial court granted defendant’s 

Proposition 47 petition and reduced to a misdemeanor a prior conviction upon which a 

prior prison term allegation was based. Defendant contends the prior conviction is now a 

misdemeanor for all purposes and may no longer support a prior prison term allegation 
4

under section 667.5, subdivision (b).2

Subdivision (k) of section 1170.18, provides in pertinent part: “Any felony 

conviction that is ... designated as a misdemeanor under subdivision (g) shall be 

considered a misdemeanor for all purposes, except that such resentencing shall not permit 

that person to own, possess, or have in his or her custody or control any firearm or 

prevent his or her conviction under Chapter 2 (commencing with Section 29800) of 

Division 9 of Title 4 of Part 6.”

In People v. Park (2013) 56 Cal.4th 782 (Park), the defendant’s sentence for his 

current crimes was enhanced by five years under section 667, subdivision (a), based on 

his prior conviction of a serious felony. Prior to the defendant’s commission of his 

current crimes, however, the trial court reduced the prior offense to a misdemeanor under 

section 17, subdivision (b)(3), and then dismissed it pursuant to section 1203.4, 

subdivision (a)(1). (Park, supra, 56 Cal.4th at p. 787.)

Section 17, subdivision (b)(3) states in part: “When a crime is punishable, in the 

discretion of the court, either by imprisonment in the state prison or imprisonment in a 

county jail ..., it is a misdemeanor for all purposes ... [¶] ... [¶] ... [w]hen the court 

grants probation to a defendant without imposition of sentence and at the time of granting 

probation ... declares the offense to be a misdemeanor.”

In Park, the Court of Appeal concluded the conviction remained a prior serious 

felony for purposes of sentence enhancement under section 667, subdivision (a), but the 

California Supreme Court disagreed: “[W]hen the court in the prior proceeding properly 

exercised its discretion by reducing the ... conviction to a misdemeanor, that offense no 

 

2 We note that several cases addressing this issue have been granted review. (E.g., 

People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; 

People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011; 

People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; 

People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, 

S232900.)
5

longer qualified as a prior serious felony within the meaning of section 667, 

subdivision (a), and could not be used, under that provision, to enhance defendant’s 

sentence.” (Park, supra, 56 Cal.4th at p. 787, first italics added.)

Defendant’s reliance on Park is misplaced. In Park, the reduction and dismissal 

occurred prior to the defendant’s commission of his current crimes. (Park, supra,

56 Cal.4th at p. 787.) Here, the reduction to a misdemeanor pursuant to section 1170.18, 

subdivision (f), occurred after defendant’s commission, conviction, and sentence for his 

current crimes. In Park, in response to an argument that People v. Feyrer (2010) 

48 Cal.4th 426 and People v. Banks (1959) 53 Cal.2d 370 were contrary to its conclusion, 

the court stated: “There is no dispute that, under the rule in those cases, defendant would 

be subject to the section 667[, subdivision ](a) enhancement had he committed and been 

convicted of the present crimes before the court reduced the earlier offense to a 

misdemeanor.” (Park, supra, 56 Cal.4th at p. 802.)

The issue before us is not whether defendant’s receiving stolen property 

conviction and prison commitment can now be used to enhance a future sentence 

pursuant to section 667.5, subdivision (b), should defendant commit a new felony upon 

release from prison on his current sentence. The issue is whether defendant’s current 

sentence, enhanced pursuant to section 667.5, subdivision (b), must now be altered 

because, subsequent to defendant’s sentencing, the conviction that gave rise to that 

enhancement was reduced to a misdemeanor pursuant to section 1170.18, subdivision (f). 

In other words, does Proposition 47 operate retroactively? To make that determination, 

we look to the language of section 1170.18 and to voter intent.

Section 3 specifies that no part of the Penal Code “is retroactive, unless expressly 

so declared.” This language “erects a strong presumption of prospective operation, 

codifying the principle that, ‘in 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 electorate] ... must have intended a retroactive application.’ [Citations.] 
6

Accordingly, ‘ “a statute that is ambiguous with respect to retroactive application is 

construed ... to be unambiguously prospective.” ’ ” (People v. Brown (2012) 

54 Cal.4th 314, 324.)

An “important, contextually specific qualification” to the prospective-only 

presumption regarding statutory amendments was set forth in In re Estrada (1965) 

63 Cal.2d 740 (Estrada). (People v. Brown, supra, 54 Cal.4th at p. 323.) That 

qualification is: “When the Legislature [or electorate] has amended a statute to reduce 

the punishment for a particular criminal offense, we will assume, absent evidence to the 

contrary, that the Legislature [or electorate] intended the amended statute to apply to all 

defendants whose judgments are not yet final on the statute’s operative date.” (Ibid.,

fn. omitted.)

Although Estrada’s language is broad, the California Supreme Court has 

emphasized the rule’s narrowness in People v. Hajek and Vo (2014) 58 Cal.4th 1144 at 

page 1196 (abrogated on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 

1215-1217): “ ‘Estrada is today properly understood, not as weakening or modifying the 

default rule of prospective operation codified in section 3, but rather as informing the 

rule’s application in a specific context by articulating the reasonable presumption that a 

legislative [or voter] act mitigating the punishment for a particular criminal offense is 

intended to apply to all nonfinal judgments.’ ”

The question of retroactivity is ultimately one of legislative—or, in this case, 

voter—intent. (People v. Shabazz (2015) 237 Cal.App.4th 303, 312-313; see People v. 

Nasalga (1996) 12 Cal.4th 784, 793.) “To resolve this very specific retroactivity 

question, we apply the well-settled rules governing interpretation of voter intent[.]” 

(People v. Shabazz, supra, 237 Cal.App.4th at p. 313.) “ ‘In interpreting a voter 

initiative ..., we apply the same principles that govern statutory construction. [Citation.] 

Thus, ... “we turn first to the language of the statute, giving the words their ordinary 

meaning.” [Citation.] ... The statutory language must also be construed in the context of 
7

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.] [¶] In other words, our ‘task is simply to interpret and apply the 

initiative’s language so as to effectuate the electorate’s intent.’ ” (Robert L. v. Superior 

Court (2003) 30 Cal.4th 894, 900-901.)

Proposition 47 clearly was intended to lessen punishment for “nonserious, 

nonviolent crimes like petty theft and drug possession” (Voter Information Guide, Gen. 

Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70),3in order “to ensure that 

prison spending is focused on violent and serious offenses ....” (Voter Information 

Guide, Gen. Elec., supra, text of Prop. 47, § 2, p. 70). This purpose was conveyed to 

voters, both in the text of the then-proposed law and in the arguments supporting 

Proposition 47. (Voter Information Guide, Gen. Elec., supra, argument in favor of 

Prop. 47, p. 38; id. rebuttal to argument against Prop. 47, p. 39; id. text of Prop. 47, §§ 2, 

3, p. 70.)

Nowhere, however, does Proposition 47 or the ballot materials refer to 

section 667.5, subdivision (b) or mention recidivist enhancements, and Proposition 47 

made no amendments to any such provisions. Two of Proposition 47’s expressly stated 

purposes, however, are to “[a]uthorize consideration of resentencing for anyone who is 

currently serving a sentence for any of the offenses” that would be made misdemeanors 

by Proposition 47, and to “[r]equire 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.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 3,

subds. (4), (5), p. 70, italics added.) Voters were assured Proposition 47 would keep 

 

3

 The voter information guide can be accessed at

<http://vigarchive.sos.ca.gov/2014/general/en/pdf/> [as of July 1, 2016].
8

dangerous criminals locked up (Voter Information Guide, Gen. Elec., supra, argument in 

favor of Prop. 47, p. 38), and that it would not require automatic release of anyone: 

“There is no automatic release. [Proposition 47] includes strict protections to protect 

public safety and make sure rapists, murderers, molesters and the most dangerous 

criminals cannot benefit.” (Id. rebuttal to argument against Prop. 47, p. 39.)

“Imposition of a sentence enhancement under ... section 667.5 requires proof that 

the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of 

that conviction; (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.” (People v. Tenner (1993) 6 Cal.4th 559, 563.)4 “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, italics added; see 

People v. Coronado (1995) 12 Cal.4th 145, 158-159; People v. Dutton (1937) 9 Cal.2d 

505, 507.) Thus, the purpose of an enhancement under section 667.5, subdivision (b) “is 

‘to punish individuals’ who have shown that they are ‘ “hardened criminal[s] who [are] 

 

4 Section 667.5, subdivision (b) currently provides: “Except where subdivision (a) 

applies, where the new offense is any felony for which a prison sentence or a sentence of 

imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not 

suspended, in addition and consecutive to any other sentence therefor, the court shall 

impose a one-year term for each prior separate prison term or county jail term imposed

under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; 

provided that no additional term shall be imposed under this subdivision for any prison 

term or county jail term imposed under subdivision (h) of Section 1170 or when sentence 

is not suspended prior to a period of five years in which the defendant remained free of 

both the commission of an offense which results in a felony conviction, and prison 

custody or the imposition of a term of jail custody imposed under subdivision (h) of 

Section 1170 or any felony sentence that is not suspended. A term imposed under the 

provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the 

term is suspended by the court to allow mandatory supervision, shall qualify as a prior 

county jail term for the purposes of the one-year enhancement.”
9

undeterred by the fear of prison.” ’ ” (In re Preston (2009) 176 Cal.App.4th 1109, 1115.) 

The enhancement’s focus on the service of a prison term “indicates the special 

significance which the Legislature has attached to incarceration in our most restrictive 

penal institutions.” (People v. Levell (1988) 201 Cal.App.3d 749, 754.)

A person who refuses to reform even after serving time in prison is clearly and 

significantly more dangerous than someone who merely possesses drugs for personal use 

or shoplifts. We cannot conclude, from the language of Proposition 47 or the ballot 

materials, that voters deemed such persons to be nonserious, nondangerous offenders, and 

so intended Proposition 47 to reach back to ancillary consequences such as enhancements 

resulting from recidivism considered serious enough to warrant additional punishment. 

Accordingly, section 3’s default rule or prospective operation, and not Estrada’s narrow 

rule of retroactivity, applies.

People v. Flores (1979) 92 Cal.App.3d 461 (Flores) does not lead to a different 

result. In that case, the defendant was convicted in 1966 for possessing marijuana. In 

1977, he sold heroin. His sentence for the 1977 offense was enhanced by one year, 

pursuant to section 667.5, because of his 1966 conviction. (Flores, supra, at pp. 464, 

470.) On appeal, the defendant claimed the enhancement was improper under Estrada,

because Health and Safety Code section 11357 was amended in 1975 to make possession 

of marijuana a misdemeanor. (Flores, supra, at p. 470.) Agreeing with the defendant, 

the appellate court stated:

“The amendatory act imposing the lighter sentence for possession of 

marijuana can obviously be applied constitutionally to prevent the 

enhancement of a new sentence by reason of a prior conviction of 

possession. Moreover, in the case at bench we are not confronted by 

legislative silence with respect to its purpose regarding penalties for 

possession of marijuana.

“Effective January 1, 1976, Health and Safety Code section 11361.5, 

subdivision (b) was enacted to authorize the superior court, on petition, to 

order the destruction of all records of arrests and convictions for possession 
10

of marijuana, held by any court or state or local agency and occurring prior 

to January 1, 1976. [Citation.] In 1976, [Health and Safety Code] 

section 11361.7 was added to provide in pertinent part that: ‘(a) Any 

record subject to destruction ... pursuant to Section 11361.5, or more than 

two years of age, or a record of a conviction for an offense specified in 

subdivision (a) or (b) of Section 11361.5 which became final more than two 

years previously, shall not be considered to be accurate, relevant, timely, 

or complete for any purposes by any agency or person.... (b) No public 

agency shall alter, amend, assess, condition, deny, limit, postpone, qualify, 

revoke, surcharge, or suspend any certificate, franchise, incident, interest, 

license, opportunity, permit, privilege, right, or title of any person because 

of an arrest or conviction for an offense specified in subdivision (a) or (b) 

of Section 11361.5 ... on or after the date the records ... are required to be 

destroyed ... or two years from the date of such conviction ... with respect 

to ... convictions occurring prior to January 1, 1976 ....’ ” (Flores, supra,

92 Cal.App.3d at pp. 471-472.)

The appellate court concluded the statutory language was clear and unambiguous. 

(Flores, supra, 92 Cal.App.3d at p. 472.) The court stated: “In view of the express 

language of the statute and the obvious legislative purpose, it would be unreasonable to 

hold that the Legislature intended that one who had already served a felony sentence for 

possession of marijuana should be subjected to the additional criminal sanction of 

sentence enhancement.” (Id. at p. 473.) The court concluded the new laws constituted “a 

legislative declaration that the old laws were too severe for the quantum of guilt 

involved” (ibid.), and distinguished a situation in which the California Supreme Court 

refused to give retroactive effect to an amendment to section 17 (Flores, supra, at p. 473) 

in part because “[t]here was no suggestion there, as there is here, that the Legislature 

intended retroactive application” (id. at p. 474).

In Flores, as in Park, and in contrast to the present case, the current offense was 

committed after the earlier offense was reduced to a misdemeanor. Moreover, 

Proposition 47 contains no clear expression with respect to retroactivity as was found in 

Flores. The closest it gets is the statement, in subdivision (k) of section 1170.18, that 

“[a]ny felony conviction that is ... designated as a misdemeanor under subdivision (g) 
11

shall be considered a misdemeanor for all purposes, except [specified firearm laws].” 

(Italics added.)

This language, the italicized portion of which is identical to that contained in

section 17, subdivision (b), is not necessarily conclusive, however. (Park, supra,

56 Cal.4th at pp. 793.) It has not been read to mean a defendant could avoid an imposed 

sentence enhancement in his current sentence by having the prior offense subsequently 

reduced to a misdemeanor. (Id. at p. 802.) Nothing in the language of Proposition 47 or 

the ballot materials indicates an intention to override the operation of section 667.5, 

subdivision (b), at least retroactively.

Defendant served a prison term for the prior conviction at a time the offense was a 

felony. It is the service of that prison term, coupled with defendant’s continuing 

recidivism, that section 667.5, subdivision (b) punishes. Absent a clear statement of the 

electorate’s intent to the contrary—which we do not find—we conclude that, because 

defendant served a prison term for petty theft with a prior theft at a time when the offense 

was a felony, and had his current sentence enhanced accordingly before the conviction 

was reduced, he is not entitled to relief.

This conclusion does not render surplusage the “for all purposes” language of 

section 1170.18, subdivision (k). Our determination is one of the electorate’s intent. 

“Rules such as those directing courts to avoid interpreting legislative enactments as 

surplusage are mere guides and will not be used to defeat legislative intent.” (People v. 

Cruz (1996) 13 Cal.4th 764, 782.) Moreover, “ambiguities 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.” (Id. at p. 783.)

We conclude that a previously imposed sentence enhanced by a section 667.5, 

subdivision (b) prior prison term is not altered by the granting of a Proposition 47 petition 

reducing the felony that gave rise to that prior prison term to a misdemeanor.
12

DISPOSITION

The order is affirmed.