Filed 10/28/16 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN HENRY LEWIS,

Defendant and Appellant. D068584

(Super. Ct. No. SCN295180 )

APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

Raymond Mark DiGuiseppe , under appointment by the Court of Appeal, for

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engl er and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland and Marvin E. Mizell, Deputy

Attorneys General, for Plaintiff and Respondent.

In 2014 the voters enacted Proposition 47, the so

- called " Safe Neighborhoods and

Schools Act " ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 ( Rivera ) ), which

enacted numerous changes to California ' s statutory scheme, including reclassifying2

several crimes to misdemeanors which previously had been designated as felonies or

" wobblers " ( id

. at p. 1091) and adding Penal Code, 1 section 1170.18. Under subdivision

(a) of section 1170.18, a defendant " currently serving a sentence " for a conviction of a

crime previously designated as a felony or a wobbler but which was reclassified as a

misdemeanor can petition for relief under Proposition 47 to be resentenced and the court

has discretion (subject to certain conditions) to resentence the petitioner to a

misdemeanor sentence. (See, generally, People v. Morales (2016) 63 Cal.4th 399, 403,

( Morales ).) However, und er subdivision (f) of section 1170.18, when a person has

" completed his or her sentence " for a conviction of a crime previously designated as a

felony or a wobbler but which is now designated as a misdemeanor, a court " shall " (upon

application by that pers on) redesignate that conviction as a misdemeanor conviction.

The different procedures and standards for obtaining the relief made available by

section 1170.18 thus depend on whether the petitioner has " completed his or her

sentence " ( id . at subd. (f)), o r is " currently serving a sentence " ( id . at subd. (a)), for a

felony that has been recharacterized as a misdemeanor under Proposition 47. The single

issue here is a matter of first impression and turns on statutory interpretation: which set

of procedures and standards apply to a petitioner who is not currently incarcerated but is

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

still serving a period either of parole or of postrelease community supervision (PRCS 2 )

for an offense which otherwise qualifies for resentencing or redesignation under

Propos ition 47? Appellant John Henry Lewis contends the standards outlined in

subdivision (f) of section 1170.18 apply to such a petitioner, and therefore argues the trial

court erred when it denied his section 1170.18 petition for relief because it erroneously

employed the standards for petitioners who are still " serving " their sentences.

I

FACTUAL AND PROCEDURAL CONTEXT

In 2011, Lewis entered a negotiated plea agreement in which he pled guilty to

grand theft from a person ( 487, subd. (c)) and admitted a " prior strike " allegation

( 667, subds. (b)

- (i), 1170.12) and a " prison prior " allegation ( 667.5, subd. (b), 668,

1170.12) in exchange for a dismissal of the balance of the charged offenses and a total

stipulated sente nce of five years in state prison. The court imposed the stipulated

sentence in 2012.

2 " PRCS was created by the Legislature in 2011 as an alternative to parole for non

serious, nonviolent felonies. It is similar, but not identical, to parole. A felon who qualifies for PRCS may be subject to supervision for up to three years after his or her release from prison. (§ 3451, subd. (a).) T his supervision is conducted by a county agency . . . rather than by the state ' s Department of Corrections and Rehabilitation. [Citations.] The supervised person may be subject to various sanctions for violating the conditions of his or her PRCS, includi ng incarceration in the county jail, but may not be returned to state prison for PRCS violations. " ( People v. Gutierrez (2016) 245 Cal.App.4th 393, 399.)4

Lewis originally petitioned for resentencing in November 2014, while still

incarcerated in state prison. The People, while agreeing Lewis ' s offense was an offense

whic h qualified for resentencing, opposed resentencing because the People contended he

posed an unreasonable risk of danger to public safety. On April 9, 2015, while that

petition was still pending, Lewis was released from prison custody and was placed on

PRC S. The court ultimately denied Lewis ' s first petition because it found he posed

unreasonable risk of danger to public safety.

Two weeks after his first petition was denied, Lewis filed the present petition

seeking to invoke the remedies provided by sect ion 1170.18, subdivision (f). He asserted

his release on PRCS meant he had " completed " his sentence within the meaning of that

subdivision, and therefore resentencing under section 1170.18, subdivision (f), was

mandatory. The People opposed the petition, arguing Lewis had not completed his

sentence within the contemplation of section 1170.18, subdivision (f), because he was

still serving his PRCS term

, 3 and therefore argued Lewis was ineligible for resentencing

under section 1170.18, subdivision (f).

T he court ruled that a person serving PRCS is still serving a sentence within the

meaning of section 1170.18. Accordingly, the court concluded Lewis ' s petition was

governed by the provisions of section 1170.18, subdivision (a), and denied the petition

beca use its ruling on Lewis ' s prior petition barred him from relief. This appeal followed.

3 Indeed, noted the prosecution, Lewis was then in custody for violating the terms of

his PRCS.5 II

THE STATUTORY STRUCTURE

A. Proposition 47

By enacting Proposition 47, the voters changed certain felony or wobbler drug

related and theft

- related offenses to m isdemeanors for eligible defendants. ( Rivera,

supra, 233 Cal.App.4th at p. 109; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)

Specifically, as to criminal offenses, Proposition 47: (1) added sections 459.5, 490.2, and

1170.18 and (2) amended secti ons 473, 476a, 496 and 666 and Health and Safety Code

sections 11350, 11357 and 11377. ( Lynall , at p. 1108.)

The dispositive section added by Proposition 47 is section 1170.18, which states in

relevant part:

" (a) A person currently serving a sentence f or a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under

the act that added this section ( ' this act ' ) had this act been in effect at the time of

the offense may petition for a recall of sentenc e before the trial court that entered

the judgment of conviction in his or her case to request resentencing

. . . .

(b) Upon receiving a petition under subdivision (a), the court shall determine

whether the petitioner satisfies the criteria in sub division (a). If the petitioner

satisfies the criteria in subdivision (a), the petitioner ' s felony sentence shall be

recalled and the petitioner resentenced to a misdemeanor pursuant to 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] t hose sections have been amended

or added by this act, unless the court, in its discretion, determines that resentencing

the petitioner would pose an unreasonable risk of danger to pub lic safety

. . . .

[¶]

. . .

( d) A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of6

his or her sentence, unless the court, in its d iscretion, as part of its resentencing order, releases the person from parole. Such person is subject to Section 3000.08 parole supervision by the Department of Corrections and Rehabilitation and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.

(e) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.

(f) 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 this act had thi s act 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.

(g) If the applicatio n satisfies the criteria in subdivision (f ), the court shall designate the felony offense or offenses as a misdemeanor.

(h) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f ). "

Th us, under subdivision (a), a person " currently serving " a felony sentence for

an offense that is now a misdemeanor under Proposition 47 may seek resentencing.

(§ 1170.18, subd. (a); Rivera , supra, 233 Cal.App.4th at p. 1092.) If the person satisfies

th e statutory criteria in section 1170.8, subdivision (a), his or her sentence is recalled and

he or she shall be " ' resentenced to a misdemeanor . . . unless the court, in its discretion,

determines that resentencing the petitioner would pose an unreasonabl e risk of danger to

public safety. ' " ( Rivera, at p. 1092 ; § 1170.18, subd. (b) .) However, if the petition is

granted and the sentence is recalled, the person must be given credit for time served but

shall also be subject to parole under section 3000.08 for one year following completion7

of his or her sentence unless the court, in its discretion and as part of the resentencing

order, release the person from parole. (§1170.18, subd. (d); Morales, supra, 63 Cal.4th at

pp. 404

- 405.)

In contrast, under subd ivision (f), an eligible person who has " completed his or her

sentence " for a felony that has become a misdemeanor under Proposition 47 may apply to

have that felony conviction designated as a misdemeanor. (§ 1170.18, subd. (f).) No

hearing is required u nless requested by the applicant (§ 1170.18, subd. (h)), and if the

application satisfies the criteria in subdivision (f), the court " shall " designate the felony

offense as a misdemeanor. (§ 1170.18, subd. (g).) There is no provision for any period

of pa role accompanying the redesignation of the offense as a misdemeanor under

subdivision (f), nor does subdivision (f) confer discretion on the court to deny the

application based on current dangerousness.

B. Relevant Provisions of PRCS

The 2011 realignm ent legislation implemented a scheme under which a person

released from prison is subject to a period of parole (§ 3000 et seq.) or PRCS (§ 3450 et

seq.) (See, People v. Armogeda (2015) 233 Cal.App.4th 428, 434.) Lower level

offenders are released on PRC S. (§ 3451, subd. (b); Armogeda , at p. 434.) PRCS is

mandatory rather than discretionary and shall be for a period not exceeding three years.

(§ 3451, subd. (a); People v. Tubbs (2014) 230 Cal.App.4th 578, 586.) " The supervised

person may be subject to various sanctions for violating the conditions of his or her

PRCD, including incarceration in the county jail, but may not be returned to state prison

for PRCS violations. " ( People v. Gutierrez, supra, 245 Cal.App.4th at p. 399.)8

C. Standard of Revie w

The inter pretation of a ballot initiative is governed by the same rules that apply in

construing a statute enacted by the Legislature ( People v Park (2014) 56 Cal.4th 782,

796), and the rules of statutory construction are well

- established. We begin with

language of the enactment and give the ordinary and plain meaning to the language

employed. ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) Second, the

language is const r ued in the context of the statute as a whole and within the overall

statut ory scheme to effectuate the voters ' intent. ( Ibid .) Construction of a statute that

renders some words surplusage should be avoided. ( People v. Cardwell (2012) 203

Cal.App.4th 876

, 882.) We should select the interpretation which comports most closely

w ith the apparent intent of the Legislature, with a v iew to promoting rather than defea ting

the general purpose of the statute, and an interp r etation that would l e ad to absurd results

should be avoided. ( People v. R u balca v a (2000) 23 Cal.4th 322, 328.)

Wh ere the language is ambiguous, the court will look to " ' other indicia of the

voters ' intent, particularly the analyses and arguments contained in the official ballot

pamphlet. ' " ( Robert L. v. Superior Court, supra, 30 Cal.4th at p. 900; People v. Floyd

(2003) 31 Cal.4th 179, 187

- 188 [ballot pamphlet information is a valuable aid in

construing the intent of voters].) Ultimately, the court ' s duty is to interpret and apply

the language of the initiative " so as to effectuate the electorate ' s intent. " ( Rob ert L ., at

p. 900.)9

We afford no deference to the interpretation given to the statute by the lower

court, but instead apply de novo review to the interpretation of a statute. ( People v.

Superior Court ( Cervantes ) (2014) 225 Cal.App.4th 1007, 1013.)

I II

ANALYSIS

The single issue is whether a person who is on PRCS is a person who is " currently

serving a sentence for a conviction, " or is a person " who has completed his or her

sentence for a conviction, " as those terms are employed by section 1170.18. T he People,

relying primarily on sections 3000, subdivision (a)(1) and 1170, subdivision (c), as well

as the language and analysis of People v. Nuckles (2013) 56 Cal.4th 601 ( Nuckles ),

contend that a person on PRCS is a person who is still " currently servin g " (and has not

" completed " serving) his or her sentence for a conviction, and therefore that a petition for

resentencing a person currently on PRCS is determined by the standards and procedure

provided by section 1170.18, subdivision (a) et seq., rather t han those provided by

subdivision (f), et. seq.

We agree with the People ' s analysis. Section 3000, subdivision (a)(1), plainly

states that " [a] sentence resulting in imprisonment in the state prison . . . shall include a

period of parole supervision or postrelease community supervision " (italics added) and

indeed, when imposing the initial sentence, the trial court must state its reasons for its

" sentence choice " and must inform the defendant that " as part of the sentence after10

expiration of the term he or she may be on parole for a period as provide in Section

3000. " (§ 1170, subd. (c), italics added ; People v. London (1988) 206 Cal.App.3d 896,

910. ) Thus, the existing statutory scheme contemplated that a felony sentence of the type

contemplated by se ction 1170.18 would encompass both the term of confinement and any

residual term of parole or PRCS, and we presume the drafters of an initiative and the

voters who enact it are aware of existing law. ( Horwich v. Superior Court (1999) 21

Cal.4th 272, 283.) We therefore presume the voters, when enacting section 1170.18,

subdivisions (a) and (f) as part of Proposition 47, understood that a " sentence " would

include a period of parole or PRCS for purposes of those subdivisions. 4

4 W e requested further briefing from the parties on the impact, if any, of the court ' s decision in Morales, supra, 63 Cal.4th 399, on the issue presented here. While the parties

appear to agree Morales is not directly controlling, Morales does appear to have rested on an unstated predicate: that a person on PRCS is subjected to the standards and procedures of section 1170.18, subdivision (a), rather than the competing subdivision (f). Specifically, the Morales court determined a petitioner who was then on P RCS, but who petitioned for resentencing under section 1170.18, would not be entitled to so

- called

" Sosa credits " ( In re Sosa (1980) 102 Cal.App.3d 1002) to reduce (or entirely eliminate)

the one

- year parole period following completion of his or her senten ce which (unless waived by the court at resentencing) must be imposed under subdivision (d). ( Id. at pp. 404

- 409.) The entire analysis of Morales , would, of course, be moot if a petition by a person on PRCS is governed by the standards and procedures u nder subdivision (f) (and not by subdivision (a)), because subdivision (d) ' s parole period has no application to orders entered under subdivision (f); instead, subdivision (d) ' s parole period, which was

the only issue examined in Morales , applies only to r esentencing orders entered under the standards and procedures provided by subdivision (a). Lewis ' s contrary argument

— that a petition by a person on PRCS is governed by the standards and procedures under subdivision (f) for which no parole period would be part of any redesignation order

— contains no reasoned effort to reconcile that claim with Morales , and instead appears to invite this court to sub silencio negate Morales , which we are not free to do. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Ca l.2d 450, 455.)11

In addition, the analysis of N uckles, supra, 56 Cal.4th 601, which cited the

language in section 3000, subdivision (a)(1), in its analysis, convinces us that a person on

parole or PRCS is still serving his sentence, albeit free from incarceration, within the

meaning of section 1170.18 5 Nuckles recognized the term of imprisonment refers to the

actual time served in prison before the release on parole, and that the term of

imprisonment and parole are distinct phases under the legislative scheme. ( Nuckles , at

p. 608.) However, Nuckles explicitly recognized that, while " parole constitutes a distinct

phase from the underlying prison sentence, a period of parole following a prison term has

generally been acknowledged as a form of punishment. . . . Further, parole is a form of

punishment accruing directly from the underlying conviction [and] . . . is a mandatory

component of any prison sentence. . . . Thus a prison sentence ' contemplates a period of

parole, which in that respect is related to the sentence. ' " ( Nuckles

, at p. 609, quoti ng In

re Roberts (2005) 36 Cal.4th 575, 590.) Thus Nuckles confirms that a person who is

released from incarceration but is still serving his parole has not completed all mandatory

components of his felony sentence.

Lewis raises numerous arguments for a contrary interpretation, but we are

unpersuaded. For example, he argues the plain language of section 1 1 7 0 .18, subdivision

5 We acknowledge Nuckles is not controlling because the court there (1) evaluated a different issue (whether a person who assists a parolee in absconding from parole supervision has aided that felon to " avoid . . . punishment " within the m eaning of section
32, see Nuckles, supra

, 56 Cal.4th at p. 605), and (2) declined to decide whether the same analysis would apply to a felon who absconded while on PRCS ( id

. at p. 608, fn. 4.). However, the observations of Nuckles do provide some illumina tion for the issue we

examine here.12

(d), which specifies that " A person who is resentenced pursuant to subdivision (b) shall

be given credit for time served and shall be subject to parole for one year following

completion of his or her sentence " ( i talics added ), shows that parole (and its functional

equivalent of PRCS) is something that occurs after the sentence is " complete d " and is

thus not part of the " sentence. " H owever, s tatutes and cases have employed the term

" sentence " in a variety of contexts , including where a person is subject to some form of

judicially imposed sanction other than incarceration. ( See, e.g., People v. Davis (2016)

246 Cal.App.4th 127, 139

- 14 0 and fn. ' s 5 & 6 [citing authorities for conclusion " the term

' sentence ' can be, and is, used to refer both to a term of confinement specifically and to

c riminal punishment generally " ]

, review granted July 13, 2016, S234324 6 .) Accordingly,

use of the ter m " sentence " in section 1170.18, subdivision (d), provides no illumination

on whether a person on PRCS has completed his " sentence " within the meaning of

subdivisions (a) and (f).

Lewis also argues section 1170.18, subdivisions (b) and (o), show the

con siderations and procedures for a subdivision (a) application are only concerned with

the release of persons who are currently incarcerated, and therefore asserts subdivision

(a) was not intended to apply to a person who has already been released on parole or

PRCS. However, interpreting sections 1170.18, subdivisions (a) and (f) to m ean that a

sentence is " complete " the moment an inmate is released on parole or PRCS, rendering

6 Although r eview in Davis

, supra , 246 Cal.App.4th 127 was granted , it was granted

on a different issue and the grant of review did not include an order for depublication

. ( Cal. Rules of Court , Rule 8.1105 (e)(1)(B). )13

any resentencing subject only to the provisions of subdivision (f), would produce absurd

results. Under Lewis ' construction, a felon who had just commenced serving his period

of parole or PRCS would be entitled to have that period of postrelease supervision

immediately terminated: his or her felony would be immediately reduced to a

mi sdemeanor (under the mandatory provisions of subdivision (f)) and , as a consequence

of that order, he would be immediately released from any postrelease supervision

regardless of their current dangerousness. 7 We decline to ascribe to the electorate an

int ention to allow a person who was released subject to supervision to immediately obtain

an order under section 1170.18, subdivision (f), freeing them from any postrelease

supervision, regardless of that person ' s current dangerousness. ( People v. Rubalcava

(2000) 23 Cal.4th 322, 328 [court should " ' select the construction that comports most

closely with the apparent intent of the Legislature, with a view to promoting rather than

defeating the general purpose of the statute, and avoid an interpretation that would lead to

absurd consequences ' " ]. )

Although Lewis raises other claims in support of his construction that section

1170.18, subdivision (f), applies to every applicant except persons incarcerated in state

7 There would be no parole supervision because , when an application under section 1170.18, subdivision (f), is granted, the person would not be subject to parole under section 1170.18, subdivision (d) , because subdivision (d) ' s order is only applicabl e to orders entered under subdivision (a). Moreover, it appears PRCS would also be terminated by operation of law , because PRCS appears to be limited to persons who served a prison term for a felony (§ 345 1 , subd. (a) ), and the redesignation order entered under section 1170.18, subdivision (f), by reclassifying the crime as a misdemeanor, would terminate PRCS jurisdiction by operation of law. (§ 3456, subd. (a)(4).)14

prison at the time their application is ruled upon, 8 we remain convinced that the

standards and procedures specified in section 1170.18, subdivision (f), have limited

applicability: it is only available to those persons who have completed their entire

sentence, including any period of postrelease supe rvision, whether through parole or

through PRCS. For those who are still serving " [a] sentence resulting in imprisonment in

the state prison . . . [ which] shall include a period of parole supervision or postrelease

community supervision " (§ 3000, subd

. (a )(1) ), the standards and procedures specified in

section 1170.18, subdivision (a) apply, including the requirement (imposed under section

1170.18, subdivision (d)) that a successful petitioner serve a one

- year period of parole

unreduced by any Sosa credits . ( Morales, supra , 63 Cal.4th at pp. 404

- 409.) Because the

trial court correctly selected the standards applicable to Lewis ' petition, and he raises no

separate claim that the court ' s rejection of his second application was an abuse of

discretion, we aff

irm the order.

8 On December 31, 2015, Lewis filed a request that we take judicial notice of

certain do cuments which he argues provide support for his interpretation of the intent of the statutory scheme. We deny the request for judicial notice.15 DISPOSITION

The order is affirmed.

O ' ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

PRAGER, J. *

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of th e California Constitution.