Filed 12/19/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARINA ELIZALDE,

 Defendant and Appellant.

2d Crim. No. B267479

(Super. Ct. No. 2011020153)

(Ventura County)

At a post-conviction hearing, the trial court 

considered two issues: whether defendant violated the terms of 

her postrelease community supervision (“PRCS”)(Pen. Code 

§ 3450, et seq.1) and whether she was entitled to relief pursuant 

to Proposition 47. 

The trial court found defendant violated the terms of 

her PRCS and ordered her to serve 120 days in custody. It then 

immediately granted her petition for Proposition 47 relief under 

section 1170.18. The effect of the court‟s inconsistent rulings was 

to give and take away at the same time. This rendered the 

 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

court‟s order that defendant serve time in custody a nullity. 

Defendant served her time in custody rendering this appeal moot. 

Because this is a matter of interest to defendants, practitioners of 

criminal law, and the public, we discuss the issue.

We dismiss the appeal as moot.

FACTS

In 2011, Marina Elizalde was convicted of forgery 

(§ 475, subd. (b)) and possession of a controlled substance (Health 

& Saf. Code, § 11377, subd. (a)). She was sentenced to 16 months 

in prison. In 2012, she was released on PRCS.

In 2015, the Ventura County Probation Agency filed 

a petition to revoke Elizalde‟s PRCS. On the same date, Elizalde 

filed a petition to have her convictions declared misdemeanors 

pursuant to Proposition 47. The trial court held a hearing on 

both petitions.

At the hearing, Elizalde requested that the trial court 

consider her Proposition 47 petition before the petition to revoke 

her PRCS. The court denied the request.

Elizalde submitted the matter of her PRCS 

revocation on the facts alleged in the petition. The trial court 

found her in violation and ordered her to serve 120 days in 

county jail with 46 days total credit.

Immediately thereafter at the same hearing, the trial 

court granted Elizalde‟s Proposition 47 petition, redesignated her 

convictions as misdemeanors and ordered her to be on 

misdemeanor parole for one year.
3

DISCUSSION

Elizalde contends the trial court erred in refusing to 

consider her Proposition 47 petition prior to revoking her PRCS. 

She argues that had the trial court first reduced her convictions 

to misdemeanors, it would have terminated her PRCS and she 

could not have been held in violation.

Proposition 47 reduced certain nonserious and 

nonviolent felonies to misdemeanors and added section 1170.18. 

Subdivision (a) of section 1170.18 provides that a person who is 

currently serving a sentence for a felony conviction that was 

reduced to a misdemeanor may petition for a recall of the 

sentence.

Section 1170.18, subdivision (b) provides in part: 

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

determine whether the petitioner satisfies the criteria in 

subdivision (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 . . . unless the 

court, in its discretion, determines that resentencing the 

petitioner would pose an unreasonable risk of danger to public 

safety.”

Section 1170.18 contains no language that requires 

the trial court to consider Elizalde‟s petition prior to considering 

the People‟s petition to find her in violation of PRCS. 

Nevertheless, section 1170.18, subdivision (k) provides, “Any 

felony conviction that is recalled and resentenced under 
4

subdivision (b) . . . shall be considered a misdemeanor for all 

purposes . . . .”

PRCS applies only to felony convictions. (§§ 3450, 

subd. (b)(5), 3451, subd. (a).) There is no PRCS for 

misdemeanors. Thus, once Elizalde‟s Proposition 47 petition is 

granted, PRCS terminates by operation of law, and any 

punishment attendant to its violation ends. Therefore it makes

no difference in what order the petitions were decided.

Here, because the trial court granted Elizalde‟s 

Proposition 47 petition, the court‟s prior finding that she violated 

PRCS and the attendant sentence of 120 days in jail were 

rendered moot. What other sentencing options may have been 

available to the court are not before us.

In response to the concurring opinion, we concur.

DISPOSITION

We dismiss the appeal as moot.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

I concur:

TANGEMAN, J.
1

YEGAN, J.,

I reluctantly concur. The result we reach today does 

not invoke application of the absurdity rule. (See, e.g., People v.

Harbison (2014) 230 Cal.App.4th 975, 987 (dis. opn. of Yegan,

J.).) It is a good thing that courts do not judge the wisdom of 

statutes passed by the legislature or propositions approved by the 

voters. (See, e.g., Wells Fargo Bank v. Superior Court (l991) 53 

Cal.3d 1082, 1099; Unzueta v. Ocean View School Dist. (l992) 6 

Cal.App.4th 1689, 1700.) If we did, the application of Proposition 

47 to PRCS violation cases such as this one could result in an “F” 

grade. I do not believe that the drafters of Proposition 47 or the 

electorate had in mind this situation. PRCS was designed to help 

defendants released from state prison. In some instances, the 

threat of incarceration will be the only motivation to comply with 

the terms of PRCS. The message appellant, and others similarly 

situated, receive, is that there is no penal consequence for 

violating PRCS. This is not a good idea. Appellant has a severe 

addiction to methamphetamine and apparently funds her habit 

by the manufacture of fraudulent identification and credit cards. 

As indicated in the probation officer‟s written PRCS report: 

“Since being released from prison on PRCS, the offender‟s 

performance on community supervision has been non-existent. 

Not only is she a habitual absconder but she continues to use 

drugs and engage in felonious behavior. She is undeserving of 

leniency and is deserving of a substantial amount of time in 

custody.”

Appellant received the benefit of “realignment” and was 

released from prison on PRCS. She agreed to the terms of PRCS 

but has been an abject failure thereon. This occurred long before 

she petitioned for Proposition 47 relief. Thereafter, she filed a 
2

proposition 47 petition seeking further leniency. She argues that 

the proposition 47 petition “must be given priority.” Nothing in 

Penal Code, § 1170.18 subdivision (b) so indicates and our opinion 

recognizes this. (Maj. opn. ante, p. 3.) Our opinion holds that 

Proposition 47 has priority over a precedent PRCS violation. 

This results in the erasure of appellant‟s signature from the 

PRCS agreement and undercuts the Legislative direction that 

realigned defendants should be punished if they violate the terms 

of PRCS. 

In People v. Espinoza (2014) 226 Cal.App.4th 635, 640, we 

said that “. . . the Legislative largess which resulted in 

appellant‟s release from prison came with a price, PRCS. This 

was the tradeoff.” Now, the tradeoff‟s teeth have been removed 

where Proposition 47 has application. To me, it would make good 

sense to hold appellant, and other appellants similarly situated, 

to the express terms of their agreements. Thereafter, the trial 

court could determine the merits of the proposition 47 petition. 

Of course, if, in the discretion of the trial court, it were to 

determine that there are circumstances which alleviate the need 

for PRCS punishment, so be it. Our holding is obedient to the 

letter and perhaps even the spirit of Proposition 47. But it 

eviscerates the legislative intent to “. . . „improve public safety 

outcomes‟ and facilitate . . . „reintegration back into society.‟” (Id., 

at p. 641, citing Penal Code, § 3450.) Instead, the net effect of 

our holding is a “get out of jail free card” for a PRCS violator who 

receives Proposition 47 relief. 

YEGAN, J.
David R. Worley, Judge

Superior Court County of Ventura

______________________________

Wayne C. Tobin, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. 

Engler, Chief Assistant Attorney General, Lance E. Winters, 

Senior Assistant Attorney General, Mary Sanchez and Chung L. 

Mar, Deputy Attorneys General, for Plaintiff and Respondent.