1

Filed 12/23/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER MARKS, Defendant and Appellant. E063516 (Super.Ct.N o. RIF1202435)
OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. John F. Schuck, 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, Barry Carlton, Seth Friedman and Sabrina Y. Lane

- Erwin, Deputy Attorneys General, for Plaintiff and Respondent.2 INTRODUCTION Defendant Christopher Marks appeals from an order denying his petition for recall and reduction of sentence under Penal Code section 1170.18 and Proposition 47

. Defendant contends that his prior convictions for violation of Health and Safety Code section 11350 were eligible for resentencing , and this co urt should construe his petition as requestin g such relief.

FACTS AND PROCEDURAL BACKGROUND On August 10, 2012, defendant entered a plea of guilty to corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd

. (a)

— count 1) and misdemeanor crimina l threat (Pen. Code, § 422

— count 2). Defendant admitted the allegations of six prior prison term convictions (Pen. Code, § 667.5, subd. (b)) , t hree of which were for violations of Health and Safety Code section 11350 , subdivision (a) . Defendant was initi ally granted probation, but probation was later revoked and defendant was sentenced to eight years in state prison ( the low term of two years for count 1 , plus six years for the prior prison terms )

. On December 29, 2014, defendant filed a petition for res entencing in the current

case under Penal Code section 1170.18 , arguing that his prior convictions under Health and Safety Code section 11350 should be reduced to misdemeanors. Defendant’s petition
bore the case numb er of his current offense. The petitio n stated that on April 17, 2013, he had been convicted of felony offenses under Health and Safety Code section 11350, subdivision (a), and those offenses had been classified as misdemeanors. The People3

opposed the petition on the ground that a violation o f Penal Code section 2 73.5 was not a qualifying felony. The trial court denied the p etition on that basis. Defendant submitted a letter regarding his petitio n in which defendant stated,
“I petition the 4 [ sic ] prior posses sion charges. Prop #47.” The t rial court held an ex parte hearing at which the court considered defendant’s letter and again denied the request for resentencing on the ground that his violation of Penal Code section 2 73 .5, subdivision (a), was not a qualifying felony.
DISCUSSION Defend ant contends that his prior convictions for violation of Health and Safety Code section 11350 were eligible for resentencing , and this court should construe his petition as requesting such relief

. Standard of Review When interpreting a voter initiative, “w e apply the same principles that govern statutory construction.” ( People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to the language of the statute, giving the words their ordinary meaning.’” ( Ibid. ) We construe the statutory language “in the context of the statute as a whole and the overall statutory scheme.” ( Ibid. ) If the language is ambiguous, we look to “‘other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.’” ( Ibid. ) Ove rview of Proposition 47 and Section 1170.18 On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. ( People v. Rivera (2015) 2334

Cal.App.4th 1085, 1089.) Proposition 47 reduced cer tain drug

- and theft

- related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, section 1170.18. S ection 1170.18 creates a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47 , may petition for resentencing. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108

- 1109.) Specifically, section 1170.18, subdivision (a), provides: “ A perso n currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] that added this section . . . had [Proposition 47] been in effect at the time of the offen se may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with 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 those sections have been amended or added by [Proposition 47] .” Section 1170.18, s ubdivision (f) , provides, “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony o r felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] 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.” Section 1170.18, s ubdivision (g) , provides, “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor.”5

Defen dant’s Petition Although, as noted, defendant’s petition for resentencing bore the current case number, he argues on appeal that this court should construe the petition as relating to his prior convictions under Health and Safety Code section 11350, subdi vision (a). However, defendant’s petition bore only the current case number; it did not identify the case numbers for his prior convictions. The relief defendant seeks is not resentencing for his former convictions, but reclassification of those convictio ns as misdemeanors. Section 1170.18 provides no procedure for reclassifying prior offenses through a petition for resentencing on a current conviction. Rather, as to the prior offenses, defendant was required to file a petition under section 1170.18, sub division (f) , in the court in which he suffered those convictions. ( Ibid. ) The complaint in the current case shows that defendant was convicted of his Health and Safety Code section 113 5 0 offenses in the County of Los Angel es in 1988, 1997, and 1998. Th us, to have those offenses redesignated as misdemeanors, defendant was required to file his petition “before the trial court that entered the judgment of
conviction , ” the Superior Court for Los Angeles County. ( Pen. Code, § 1170.18, subd. (a).)6 DISPOSIT ION The judgment is affirmed.
CERTIFIED FOR PUBLICATION

McKINSTER J. We concur:

RAMIREZ P. J.

HOLLENHORST J.