1

Filed 4/28/16 P. v. Vance 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE JERAMIAH VANCE,

Defendant and Appellant. C076272

(Super. Ct. No. CRF130047)

A jury convicted defendant Willie Jeramiah Vance of possession of cocaine base

(Health & Saf. Code, § 11350, subd. (a) ) and possession of drug paraphernalia (Health &

Saf. Code, former § 11364.1 , Stats. 2011, ch. 738, § 11 ). The trial court sustained a p rior

strike allegation but granted defendant’s motion to strike the allegation pursuant to

People v. Superior Court ( Rom ero ) (1996) 13 Cal. 4th 497 and sentenced defendant to

serve three yea rs in state prison.

On appeal, defendant contends the case should be remanded to the trial court for

resentencing pursuant to Proposition 47. We conclude Proposition 47 applies2

retroact ively only through a petition for resentencing under Penal Code section 1170.18.

Accordingly, we affirm.

DISCUSSION 1

Proposition 47 requires “misdemeanors instead of felonies for nonserious,

nonviolent crimes .

. . unless the defendant has prior convictions for specified violent or

serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also

added section 1170.18 to the Penal Code, which provides that a person who is “currently

serving a sentence for a conviction .

. . of a felony or felonies who would have been

guilty of a misdemeanor under the act that added this section .

. . had this act been in

effect at the time of the offense may petition for a recall of sentence before the trial court

that entered the judgme nt of conviction in his or her case to request resentencing

. . . .”

Defendant correctly notes possession of cocaine base is now a misdemeanor and

he does not have a disqualifying prior conviction. (Health & Saf. Code, § 11350, subd.

(a).) He argues tha t pursuant to In re Estrada (1965) 63 Cal. 2d 740 ( Estrada ) , the

provisions of Proposition 47 operate retroactively to reduce his conviction to a

misdemeanor.

Estrada stated: “When the Legislature amends a statute so as to lessen the

punishment it has o bviously expressly determined that its former penalty was too severe

and that a lighter punishment is proper as punishment for the commission of the

prohibited act. It is an inevitable inference that the Legislature must have intended that

the new statute imposing the new lighter penalty now deemed to be sufficient should

apply to every case to which it constitutionally could apply.” ( Estrada

, supra , 63 Cal. 2d

1 We dispense with a recitation of the facts of defendant’s crimes as it is

unnecessary to resolve this case.3

at p. 745.) This includes “acts committed before its passage provided the judgment

convicting t he defendant of the act is not final.” ( Ibid .)

Thus, Estrada held that if an amended statute mitigates punishment, the

amendment will operate retroactively to impose the lighter punishment unless there is a

saving clause. ( Estrada

, supra , 63 Cal. 2d at p

. 748.) The Legislature may signal its

intent by including an express saving clause making the amendment prospective, “or its

equivalent.” ( People v. Nasalga (1996) 12 Cal. 4th 784, 793.) People v. Yearwood

(2013) 213 Cal. App.4th 161 held a provision in Proposition 36, the Three Strikes Reform

Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012); Pen. Code,

§ 1170.126) that created a postconviction resentencing procedure similar to the one in

Penal Code section 1170.18, was the “functio nal equivalent” of a saving clause.

( People v. Yearwood , at pp. 167

- 172.) Referencing People v. Yearwood , this court has

concluded a defendant subject to Proposition 47 is limited to the statutory remedy of

petitioning for recall of sentence in the trial court after the judgment has become final.

( People v. Noyan (2014) 232 Cal. App.4th 657, 672.) No yan was cited with approval in a

decision from D ivision Five of the Second District Court of Appeal

, reject ing the same

argument presented here by defendant. ( People v. Shabazz (2015) 237 Cal. App.4th 303,

314.)

We agree with the result in People v. Noyan , supra, 232 Cal.App.4th 657 and

People v. Shabazz, supra 237 Cal.App.4th 303. The procedure set forth in Penal Code

section 1170.18 applies to “[a] person currently serving a sentence for a conviction .

. . of

a felony or felonies who would have been guilty of a misdemeanor under the act

. . . .”

Defendant is such a person. There is no need to ask whether Proposition 47 is retroactive

as to him. Th e act clearly states the manner in which any adjustment in his sentence is to

be accomplished. Defendant is limited to the statutory remedy of petitioning the trial

court for recall of sentence when the judgment is final.4 DISPOSITION

The judgment is affi rmed.

/s/

HOCH, J.

We concur:

/s/

NICHOLSON, Acting P. J.

/s/

DUARTE, J.