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Filed 7/13/16 P. v. Shields 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. ROBERT CHRIS SHIELDS, Defendant and Appellant. E063966 (Super.Ct.No s . FSB031656 , FSB07472 & SCR41932 )
OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed in part; reversed in part. Richard Power, 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, Marvin E. Mizell and Al lison V. Hawley , Deputy Attorneys Genera l, for Plaintiff and Respondent.2

Defendant Robert Chris Shields appeals from the denial of his petition under Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, § 1170.18; unless otherwise indicated , all additional statutory references are to the Penal Code.) Def endant argues he is entitled to have his prior convictions for petty theft with a prior designated as
misdemeanors (former § 666) , and that he is entitled to be resentenced i n his current fe lony case because his sentence includes two one

- year p rior prison term enhancements based on those prior convictions

. Defendant also argues his appointed attorney rendered ineffective assistance of counsel at the hearing on the petition by not objecting to the denial

. We agree defendant ’s prior convictions for petty theft with a prior are eligible to be designated as misdemeanors and , therefore , we reverse the denial of his petition to the
extent it requested relief under section 1170.18, subdivisions (f) and (g) . Because we reverse the order to that extent , we need not address defendant’s related claim of ineffective assistance of counsel. However, because we conclude designation of a prior conviction as a misdemeanor does not operate re troactively to negate a prior prison term sentence enh ancement imposed on a felony that is not governed by Proposition 47 , we affirm the denial of the petition to the extent defendant requested resentencing in his current felony case pursuant to sec tio n 11 70.18, subdivisions (a) and (b)

.3 I. PROCEDURAL BACKGROUND The underlying facts of defendant’s offenses are not relevant to the issues in this appeal. By order dated May 20, 2016, we have taken judicial notice of the record from defendant’s appeal in ca se N o. E033124. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In case No. FSB03165, in a second amended information, the People charged defendant with one count of attemp ted second degree robbery ( §§ 664, 211; count 1 ) and six counts o f second degree robbery (§ 211; counts 2

- 7). For purposes of sentencing, the People alleged defendant personally used a deadly weapon during the commission of counts 1 through 3 (§ 12022, subd . (b)(1)), he suffered prior serious or violent felony convicti on s (§§ 1170.12, subds. (a)

- (d), 667, subds. (b )

- (i)), and suffered prior serious felony conviction s (§ 667, subd. (a)(1)). T he People also alleged defendant s erved five prior prison terms (§ 667.5, subd. (b) ), two of which were based on convictions for p etty theft with a prior in violation of former section 666. A jury found defendant guilty as charged on counts 1, 2, 3, 6 and 7, guilty of the lesser included offense of misdemeanor petty theft on counts 4 and 5, and found true the allegation of personal use of a firearm during the commission of count s 1 through 3. Defendant admitted to serving five prior prison terms and to suffering a prior serious felony conviction. The trial court sentenced defendant to a total term of 19 years in state prison. The

t rial court deemed count 2 to be the principal count and sentenced defendant to the middle4

term of six years in state prison. W ith respect to the finding of personal use of a firearm during the commission of count 2, the court sentenced defendant to the lo wer term of one year to be served consecutively to the sentence on count 2. The trial court sentenced defendant to two years for each of defendant’s conviction s on counts 6 and 7, to run
consecuti vely with the sentence on count 2. For defendant’s prior s erious felony conviction , the trial court sentenced defendant to five years to be served consecutively with the sentence on count 2. With respect to defendant’s five admitted prison priors, the trial court sentenced defendant to one year for each ; stayed execution of the one - year
sentence on one prison prior pursuant to section 65 4; struck imposition of the sentence on another ; and ordered the sentence on the remaining prison priors to run consecutively with the sentence on count 2. The trial court senten ced defendant to two years on count 1 and three years on count 3 . Additionally, the court imposed a one

- year term for each of the finding s that defendant personal ly use d a firearm during the commission of counts 1 and 3, to be served concurrent ly with the sentence on count 2. Finally, on the People’s motion, the trial court dismissed the convictions on counts 4 and 5 pursuant to section
1385.
Th is court affirmed the judgment on direct appeal. ( People v. Shields (Sept. 8, 2003, E033124) [nonpub. opn.].)
A fter the passage of Proposition 47, defendant filed a form petition in the superior

court in his current case (case no. FSB031656)

. In the spaces provide d for “ felonies affected by Proposition 47,” defendant listed his prior convictions for petty theft wi th a prior in case Nos. S CR41932 and FSB07472

. At the hearing on defendant’s petition, the5

trial court stated, “Court found these charges not eligible.” When asked if defendant’s appointed attorney had any objection, counsel responded, “No objection.” The trial court therefore denied the petition.
In a handwritten letter filed with the trial court , defendant acknowledged the
offenses in his current case were not eligible for resentencing under Proposition 47, but defendant explained he was refiling his petition and seek ing an order designating as misdemeanors his prior convictions fo r petty theft with a prior that were used to enhance his current sentence. Defendant argued the trial court should not have denied his o riginal petition because he list ed th e case numbers for his priors.
T he superior court treated defendant’s letter as a notice of appeal.
II. DISCUSSION Defendant contends his prior convictions for petty theft with a prior are eligible to be designated as misdemeanors under section 1170.18 and , consequently , his current sentence should be reduced by two years to remove the prior prison term enhancements based on those prior convictions. In addition, defendant contends his appointed attorney rendered ineffective assistance of counsel by failing to object when the trial court indicated it would de ny the petition. We agree defendant ’s prior convictions for petty theft with a prior are eligible to be designated as misdemeanors under Proposition 47, and to that extent conclude the trial court erred by denying the petition. However, we also conclude designation of defendant’s prior convictions as misdemeanors does not entitle him to res entencing in his current case.6

A. Defendant I

s Entitled to Have His Prior Convictions for Petty Theft w ith a
Prior Designated as Misdemeanors “Proposition 47 makes certain drug

- and theft

- related 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).” ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 ( Rivera ) .) “Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently ser ving’ 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.” ( Id . at p. 1092.) “ S ection 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions ‘designated as misdemeanors.’ (§ 1 170.18, subds. (f); see id ., subds. (g)

- (h).) ” ( Id. at
p. 1093.) “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense as a misdemeanor.” (§ 1170.18, subd. (g).)

“ One of the nonserious crimes affecte d by Proposition 47 is petty theft with a prior under former section 666. For most persons, the crime of petty theft with a prior, for which the punishment is imprisonment in the county jail not exceeding one year or in the state prison, is eliminated. A s amended by the initiative, s ection 666 applies only if: (1) the person is convicted of petty theft in the current case; (2) has served a term of imprison ment for a prior conviction of ‘ petty theft, grand theft, a conviction pursuant to7

subdivision (d) o r (e) of Section 368 [ ( elder abuse ) ], auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony vio lation of Section 496’; and (3) ‘ is required to register pursuant to the Sex Offender Registration Act, or .

. . has a p rior violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivi sion (d) or (e) of Section 368.’ (§ 666, subd. (a), (b).) ” ( People v. Di az (2015 ) 238 Cal.App.4th 1323, 1330 .) The People do not dispute defendant’s prior convictions under former section 666 are eligible to be designated as misdemeanors under Proposition 47. Nothing in the record indicates defendant’s criminal history would subject him to felony punishment under amended section 666. However, the People argue defendant is not entitled to re lief just yet because he filed his petition in his current case instead of in the prior cases, and because he did not file his petition in the court which entered the prior judgment s . We disagree.
A lthough defendant’s initial petition listed his current case number in the caption, it clearly list ed the prior case numbers in the spaces provided for “felonies affected by Proposition 47

. ” In addition, in defendant’s hand written letter to the court

— which he characterized as a refiled petition

— defendant made it clear he was seeking relief in his prior cases

. Nor did defendant file his petition in the wrong court. Defendant filed his petition i n the Superior Court of San Bernardino County , which is where defendant’s two prior cases and his current case arose. To the extent the People contend defendant was required to file his petition in the same department that entered the judgment in his prio r8

cases, the trial court found defendant waived his right und er section 1170.18, subdivision ( l ), to have his petition heard by the sentencing judge. T his case is therefore dissimilar to People v. Marks (2015) 243 Cal.App.4th 331, where this court found a petition filed in the Superior Court of Ri verside County was defective because (1) it sought reclassification of prior convictions entered in the Superior Court of Los Angeles County and (2) the “ petition bore only the current case number; it did not iden tify the case numbers for his prior convictions. ” ( Id . at p. 335.) Defendant wa s entitled to have designated as misdemeanors his prior convictions under former section 666 in case Nos. S CR41932 and FSB07472, so we conclude the trial court erred by denying the petition. Because we revers e the trial court to the extent it denied defendant’s request under section 1170.18, subdivision (f) , we need not address whether defendant’s appointed attorney rendered ineffective assistance of counsel when
he failed to o bject to the denial

. B. Defendant I

s Not Entitled to Be Resentenced in H is Curren t Case Based on Designation of H is Pri or Convictions for Petty Theft w ith a Prior as Misdemeanors Defendant contends he is entitled to be resentenced in his current case because his prior convictions for petty theft with a prior, which are eligible to be designated as misdemeanors under Proposition 47, were used to enhance his sentence. The issue of whether a defendant is entitled to be resentenced on a current case after the superior court designates as a misdemeanor a prior conviction used to enhance the current sentence is pending before the California Supreme Court. ( People v. Valenzuela (2016) 244 Cal.App.4th 692, rev iew granted Mar

. 30, 2016, S232900; People v. Carr ea (2016) 2449

Cal.App.4th 966, rev iew granted Apr

. 27, 2016, S233011 ; People v. Williams (2016) 245 Cal.App.4th 458 , rev iew granted May 11, 2016, S233539 ; People v. Ruff (2016) 244 Cal.App.4th 935, rev iew granted May 11, 2016, S233201 .) W e conclude defend ant is not entitled to be resentenced in his current case. Proposition 47 operates prospectively to new cases that must be charged as misdemeanors . Retro spectively, Proposition 47 addresses prior felony wobbler convictions for offense s that are now misdem eanors by creating two mechanisms for relief: (1) recl assification and resentencing for defendants currently serving sentences for eligible offenses (§ 1170.18, subds. (a), (b)), and (2) designation as misdemeanors for defendants who have already complete d their sentences for eligible offenses (§ 1170.18, subds. (f), (g) )

. Proposition 47 did not, however, cre ate a mechanism for obtaining resentencing on a felony not affected by Proposition 47 simply because an offense underlying one or more of its enhancements is s o affected. We find t his omission to be significant because Proposition 47 expressly provides that the relief it creates is meant to be exhaustive , not merely illustrative: “ Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act. ” (§ 1170.18, subd. (n).)
D efendant contends the resentencing provision under section 1170.18, subdivision s (a) and (b) , applies retroactively to prior convictions used to enhance the

sentence on non

- Proposition 47 eligible felonies because , by its terms, a felony wobbler that is reclassified or designated as a misdemeanor “shall be considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).) We are not pers uaded. Section 1170.18,10

subdivision (k), borrowed language from section 17 , which provides that w hen a trial court exercises its discretion to declare a fel ony wobbler to be a misdemeanor , the offense “is a misdemeanor for all purposes . . . .” (§ 17 , subd. (b)(3).) The courts have consistently interpreted s ection 17 to apply prospectively only

. “[W]hen a wobbler is reduced to a misdemeanor [under section 17], the offense thereafter is deemed a ‘misdemeanor for all purposes . . . .’” ( People v. Par k (2013) 56 Cal.4th 782, 795, italics added; see People v. Banks (1959) 53 Cal.2d 370, 381

- 382 ; People v. Pryor (1936) 17
C al.App.2d 147, 152 .) Put differently, redesignation under section 17 makes the wobbler “a misdemeanor from that point on.” ( People v. Feyrer (2010) 48 Cal.4th 426, 439 , 443, fn. 8 ; see People v. Marshall (1991) 227 Cal.App.3 d 502, 504 [redesignated offense is treated as a misdemeanor after redesignation]; Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1 477, 1482

- 1 483, 1487 [same]; People v. Camarillo (2000) 84 Cal.App.4th 1386, 13 90, 1394 [same]; People v. Rowland (1937) 19 Cal.App.2d 540 , 541

- 542 [same].) Critically, however, this “ misdemean[or] status [is]

not

. . . given retroactive effect.” ( People v. Moomey ( 2011) 194 Cal.App.4th 850, 857 ;

see Feyrer , at p. 439 [“the offense is [made] a misdemeanor from that point on, but not retroactively ” (it alics added)] ; People v. Bozigian (1969) 270 Cal.App.2d 373, 379 [ felony wobbler reduced to misdemeanor for senten cing “has no retroactive effect ”] .)

“ ‘ When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] in tended the same construction, unless a contrary intent clearly appears. ’ [Citation.] ” ( Rivera , supra , 233 Cal.App.4th at p. 110 0; see People v.11

Medina (1995) 39 Cal.App.4th 643, 650 .) We find nothing in the text, history, or purposes of Proposition 47 t hat would lead us to conclude the voters intended section 1170.18, subdivision (k) , to be interpreted differently than section 17, subdivision (b)(3)

. Therefore, we conclude defendant is not entitled to be resentenced on ineligible offenses
in his current case based on redesignation of his prior convictions as misdemeanors. Finally, because we conclude defendant i s not entitled to be resentenced i n his current case, we also conclude defendant’s appointed attorney did not render ineffective assistance of counsel by failing to interpose an objection to the denial of defendant’s request for resentencing. ( People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“ Failure to raise a meritless objection is not ineffective assistance of counsel. ”].)
III. DISPOSITION The order denying defendant’s petition to designate as misdemeanors his convictions for petty theft with a prior in case Nos. S CR41932 and FSB07472 is reversed. On remand, the trial court shall grant the petition. (§ 1170.18, subds. (f), (g).) The order denying resentencing in case No. FSB031656 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
MILLER J.