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Filed 4/27/16 P. v. Jones CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS JONES,

Defendant and Appellant.

C079442

(Super. Ct. No. SF127860A)

Defendant Dennis Jones appeals from the trial court’s order denying his Penal 

Code1section 1170.18 petition for resentencing on a prior prison term enhancement. He 

contends that the enhancement became invalid once the prior felony underlying 

conviction that forms the prison prior was reduced to a misdemeanor pursuant to 

section 1170.18. We affirm.

 

1 Undesignated statutory references are to the Penal Code.
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BACKGROUND

We omit the facts of defendant’s crimes as they are unnecessary to resolve this 

appeal.

In September 2014, defendant was convicted of receiving a stolen motor vehicle 

with two prior prison term enhancements and sentenced to six years in state prison. The 

basis of one of the enhancements was a prior conviction for petty theft with a prior. 

In April 2015, defendant’s petition to reclassify the petty theft with a prior 

conviction to a misdemeanor was granted. Defendant then filed a section 1170.18 

petition for resentencing on the prison prior supported by the petty with a prior 

conviction. After briefing from both parties, the trial court denied the petition. 

DISCUSSION

Defendant contends that the reduction to a misdemeanor of his petty theft with a 

prior conviction underlying one of the prior prison term enhancements required the trial 

court to strike that enhancement. We disagree.

Proposition 47, the Safe Neighborhoods and Schools Act (the Act) requires 

“misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the 

defendant has prior convictions for specified violent or serious crimes.” (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) Among the 

affected crimes is petty theft with a prior, which is now a misdemeanor barring certain 

exceptions not relevant here. (See §§ 666, 490.) Since the prior prison term 

enhancement requires that defendant be convicted of a felony and served a prison term 

for that conviction (§ 667.5, subd. (b)), this raises the question of whether a prior prison 

term enhancement based on what is now a misdemeanor conviction survives the Act. 

We begin by noting that while section 1170.18 allows felony convictions to be 

reduced to misdemeanors, even when the felony sentence was completed before the 

passage of the Act, it does not mean the conviction should be viewed as a misdemeanor 

retroactively. Section 1170.18, subdivision (k) was interpreted in the context of felony 
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jurisdiction over criminal appeals in People v. Rivera (2015) 233 Cal.App.4th 1085. 

Rivera found that subdivision (k), which parallels the language from section 17 regarding 

the reduction of wobblers to misdemeanors,2should be interpreted in the same way as 

being prospective, from that point on, and not for retroactive purposes. (Rivera, at 

p. 1100; see also People v. Moomey (2011) 194 Cal.App.4th 850, 857 [rejecting assertion 

that assisting a second degree burglary after the fact does not establish the necessary 

element of the commission of an underlying felony because the offense is a wobbler:

“Even if the perpetrator was subsequently convicted and given a misdemeanor sentence, 

the misdemeanant status would not be given retroactive effect”].) The court in Rivera

accordingly concluded that the felony status of an offense charged as a felony did not 

change after the Act was passed, thereby conferring jurisdiction on the Court of Appeal.3 

(Rivera, at pp. 1094-1095, 1099-1101.) We see no reason to depart from Rivera. 

Although Rivera addressed subdivision (k) in a different context, its analysis of 

subdivision (k) is equally relevant here. 

The Supreme Court reached a similar conclusion in the context of enhancements 

when interpreting section 17. In People v. Park (2013) 56 Cal.4th 782, the Supreme 

 

2 Section 17, subdivision (b) states in pertinent 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 under the provisions of subdivision (h) of Section 1170, or by fine or 

imprisonment in the county jail, it is a misdemeanor for all purposes under the following 

circumstances . . . .”

3 Rivera also noted the absence of any evidence that the voters wanted to go beyond 

directly reducing future and past punishment for convictions under the six included 

offenses. (People v. Rivera, supra, 233 Cal.App.4th at p. 1100 [“Nothing in the text of 

Proposition 47 or the ballot materials for Proposition 47 -- including the uncodified 

portions of the measure, the official title and summary, the analysis by the legislative 

analyst, or the arguments in favor or against Proposition 47 -- contains any indication that 

Proposition 47 or the language of section 1170.18, subdivision (k) was intended to 

change preexisting rules regarding appellate jurisdiction”].)
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Court held that a felony conviction properly reduced to a misdemeanor under section 17, 

subdivision (b), could not subsequently be used to support an enhancement under 

section 667, subdivision (a). (Park, at p. 798.) Applying the reduction to eliminate an 

enhancement that was properly imposed before the passage of the Act would be the type 

of retroactive application that is impermissible under section 17. The distinction between 

retroactive and prospective application was recognized by the Supreme Court in Park. 

“There is no dispute that, under the rule in [prior California Supreme Court] cases, [the] 

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, at p. 802.) Retroactive versus prospective application 

was also invoked by the Supreme Court in distinguishing cases cited by the Attorney 

General. “None of the cases relied upon by the Attorney General involves the situation in 

which the trial court has affirmatively exercised its discretion under section 17[, 

subdivision] (b) to reduce a wobbler to a misdemeanor before the defendant committed 

and was adjudged guilty of a subsequent serious felony offense.” (Park, at pp. 799-800.) 

Park is not the only example of the Supreme Court finding that reducing a felony 

to a misdemeanor pursuant to section 17 is not retroactive. For example, if a defendant is 

convicted of a wobbler and is placed on probation without imposition of sentence, the 

crime is considered a felony “unless subsequently ‘reduced to a misdemeanor by the 

sentencing court’ pursuant to section 17, subdivision (b).” (People v. Feyrer (2010) 

48 Cal.4th 426, 438-439.) “If ultimately a misdemeanor sentence is imposed, the offense 

is a misdemeanor from that point on, but not retroactively.” (Id. at p. 439.) It has 

therefore long been the rule regarding section 17 that “as applied to a crime which is 

punishable either as felony or as misdemeanor: ‘the charge stands as a felony for every 

purpose up to judgment, and if the judgment be felonious in that event it is a felony after 

as well as before judgment; but if the judgment is for a misdemeanor it is deemed a 

misdemeanor for all purposes thereafter -- the judgment not to have a retroactive 
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effect . . . .’ ” (People v. Banks (1959) 53 Cal.2d 370, 381-382, quoting Doble v. 

Superior Court (1925) 197 Cal. 556, 576-577.) 

“Where, as here, legislation has been judicially construed and a subsequent statute 

on the same or an analogous subject uses identical or substantially similar language, we 

may presume that the Legislature intended the same construction, unless a contrary intent 

clearly appears.” (Estate of Griswold (2001) 25 Cal.4th 904, 915-916.) “Generally, the 

drafters who frame an initiative statute and the voters who enact it may be deemed to be 

aware of the judicial construction of the law that served as its source.” (In re Harris

(1989) 49 Cal.3d 131, 136.)

The drafters of Proposition 47 knew that section 17, which contained the “for all 

purposes” phrase found in subdivision (k) of section 1170.18, had been consistently 

interpreted by the Supreme Court so as not to give retroactive effect to an action reducing 

a wobbler from a felony to a misdemeanor. Defendant has not given us any reason to 

depart from a similar construction of the essentially identical operative text of subdivision 

(k).

Defendant relies primarily on People v. Flores (1979) 92 Cal.App.3d 461. The 

defendant in Flores was sentenced to prison following his conviction of selling heroin 

(Health & Saf. Code, § 11352), and his state prison sentence for that crime was enhanced 

by one year for a prior prison term. (Flores, at pp. 464, fn. 1, 470.) The enhancement 

was based on a prior felony conviction of possession of marijuana under Health and 

Safety Code section 11357. (Flores, at p. 470.) That statute had since been amended in 

1975 to make possession of marijuana a misdemeanor. (Id. at p. 470.) 

The Flores court noted that in 1976 the Legislature enacted Health and Safety 

Code section 11361.5, subdivision (b), which “authorize[d] the superior court, on 
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petition, to order the destruction of all records of arrests and convictions for possession of 

marijuana, held by any court or state or local agency and occurring prior to January 1, 

1976.” (People v. Flores, supra, 92 Cal.App.3d at p. 471.) Also 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, at pp. 471-472.) Based on these amendments, the court 

concluded that “the Legislature intended to prohibit the use of the specified records for 

the purpose of imposing any collateral sanctions,” such as the prior prison term 

enhancement. (Id. at pp. 472, 473.)

Flores is inapposite because there is no similar declaration of legislative intent for 

full retroactivity either in the Act generally or section 1170.18 in particular. If the Act’s 

drafters wanted to invalidate prior prison term allegations because the underlying felony 

was now a misdemeanor, they could have included legislative language like that 

discussed in Flores. They did not. 
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DISPOSITION

The judgment (order) is affirmed.

/s/ 

Robie, J.

We concur:

/s/ 

Raye, P. J.

/s/ 

Renner, J.