Filed 2/7/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

GEORGE DONALD HATT,

 Defendant and Appellant.

2d Crim. No. B283463

(Super. Ct. No. 2003030277)

(Ventura County)

In November 2014, voters enacted Proposition 47 to 

“reduce[] the penalties for certain drug- and theft-related offenses 

and [to] reclassif[y] those offenses as misdemeanors rather than 

felonies. [Citations.]” (People v. Zamarripa (2016) 247 

Cal.App.4th 1179, 1182 (Zamarripa).) Proposition 47 also added 

section 1170.18 to the Penal Code,1 which permits a person who 

has completed the sentence for an eligible felony conviction to 

apply to have the conviction redesignated a misdemeanor. (Ibid.; 

see § 1170.18, subd. (f).) If the applicant meets specified criteria, 

 

1 All further undesignated statutory references are to the 

Penal Code.
2

and has not suffered a disqualifying prior conviction, the trial 

court must redesignate the offense. (§ 1170.18, subds. (g) & (i).) 

“The question presented by this case is, ‘Prior to 

what?’” (People v. Montgomery (2016) 247 Cal.App.4th 1385, 

1387 (Montgomery).) We hold that a person who suffers a 

disqualifying conviction after filing a redesignation application

but prior to the trial court’s ruling on that application is barred 

from relief under section 1170.18.

FACTUAL AND PROCEDURAL HISTORY

In October 2003, George Donald Hatt pled guilty to 

possession of methamphetamine, then a felony. (Health & Saf. 

Code, § 11377, subd. (a).) The trial court sentenced him to three 

years in state prison. 

In May 2016, while a murder charge was pending 

against him in Washington, Hatt filed an application to have his 

methamphetamine possession conviction redesignated a 

misdemeanor. (§ 1170.18, subd. (f).) The prosecution opposed the 

application because of Hatt’s pending murder charge.

2 The trial 

court tentatively denied the application in August 2016.

The prosecution then moved to continue the hearing 

on Hatt’s application until the resolution of the murder case, 

which was expected to go to trial in February 2017. The trial 

court granted the continuance. It set the hearing for March, and 

later continued the case to June. At the June hearing the 

prosecutor informed the court that the Washington jury found 

Hatt guilty of murder. The court then denied Hatt’s application.

 

2 A murder conviction disqualifies an applicant from 

redesignation relief. (§ 1170.18, subd. (i); see §§ 667, subd. 

(e)(2)(C), 667.5, subd. (c)(1), 1192.7, subd. (c)(1).)
3

DISCUSSION

The August 2016 “ruling”

Hatt first contends the trial court erred when, in 

August 2016, it “denied” his application based on his pending 

murder case. We disagree.

A tentative ruling is, by definition, not final. (People 

v. Von Villas (1992) 11 Cal.App.4th 175, 241.) Whether a ruling 

is tentative “turns on whether the court has finished its 

consideration of [an] issue.” (People v. Ennis (2010) 190 

Cal.App.4th 721, 736, italics omitted.) Here, the trial court had 

not finished its consideration of Hatt’s application when it issued 

the tentative denial in August 2016: It did not enter a final order 

into the minutes, but rather solicited briefing and continued the 

case. Because the court’s August 2016 ruling was not final, the 

issue is not properly before us.3 (In re Anthony H. (1982) 138 

Cal.App.3d 159, 165-166 [where court issues ruling but invites 

briefing, states it will reserve final decision, and then issues 

subsequent order, original ruling is deemed tentative].)

The continuances

Hatt next contends the trial court abused its 

discretion when it continued the hearing on his application until 

after the conclusion of his murder case. We again disagree.4

 

3 Even if the trial court’s August 2016 ruling were final, we 

could not consider it because Hatt did not file a notice of appeal 

“within 60 days after . . . the making of the order being appealed.” 

(Cal. Rules of Court, rule 8.308(a); see In re Chavez (2003) 30 

Cal.4th 643, 650.)

4 The Attorney General claims the continuances were 

necessary for the trial court to determine whether Hatt “would 

pose an unreasonable risk of danger to public safety.” (§ 1170.18, 
4

“Continuances shall be granted only upon a showing 

of good cause.” (§ 1050, subd. (e).) To determine whether good 

cause for a continuance exists, a trial court “must consider ‘“‘not 

only the benefit which the moving party anticipates but also the 

likelihood that such benefit will result, the burden on other 

witnesses, jurors and the court and, above all, whether 

substantial justice will be accomplished or defeated by a granting 

of the motion.’”’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 

390, 450 (Doolin).) The court should also consider whether a

continuance would be “useful.” (People v. Beeler (1995) 9 Cal.4th 

953, 1003 (Beeler), abrogated on another ground as recognized in 

People v. Edwards (2013) 57 Cal.4th 658, 705.) “[T]o demonstrate 

the usefulness of a continuance a party must show both the 

materiality of the evidence necessitating the continuance and 

that such evidence could be obtained within a reasonable time.” 

(Ibid.) “Whether good cause exists is a question for the trial 

court’s discretion. [Citation.]” (Doolin, at p. 450.) The grant or 

denial of a continuance is “‘seldom successfully attacked.’ 

[Citation.]” (Beeler, at p. 1003.)

Good cause for the continuances was shown here. 

First, the trial court accomplished substantial justice by 

continuing the hearing. (Doolin, supra, 45 Cal.4th at p. 450.) To 

“‘[e]nsure that people convicted of murder, rape, and child 

molestation will not benefit from’” Proposition 47’s redesignation 

 

subd. (b).) But Hatt did not file a petition to have his sentence

recalled under subdivision (a) of section 1170.18; he filed an 

application to have his conviction redesignated pursuant to 

subdivision (f). The “risk of danger to public safety” consideration 

required by subdivision (b) is thus inapplicable. (People v. 

Shabazz (2015) 237 Cal.App.4th 303, 310-311 [describing the 

different methods for obtaining relief under section 1170.18].)
5

provisions, section 1170.18 includes “a general disqualification 

[that applies] regardless of when a defendant was convicted of 

the disqualifying offense.” (Zamarripa, supra, 247 Cal.App.4th 

at pp. 1182, 1184; see also People v. Walker (2016) 5 Cal.App.5th 

872, 876-877 (Walker) [discussing additional authority]; 

Montgomery, supra, 247 Cal.App.4th at pp. 1390-1391 [same].) 

Had the court denied the continuances here, it would have 

thwarted this purpose because it could not have denied Hatt’s 

application despite the pending murder charge. By granting the 

continuances, the court acceded to voters’ wishes to make certain 

that a convicted murderer could not take advantage of section 

1170.18. (Cf. In re Cook (1944) 67 Cal.App.2d 20, 24-25 

[substantial justice to carry out the intent of the Legislature].)

Second, the continuances were useful. (Beeler, supra, 

9 Cal.4th at p. 1003.) The evidence necessitating the 

continuances—whether Hatt had committed a disqualifying act—

was material to his redesignation application. And the 

prosecution provided the trial court with a reasonable timeline of 

when the evidence could be obtained: The prosecutor informed 

the court when Hatt’s trial was scheduled to start, and kept it 

apprised of the trial’s progress. The hearing on Hatt’s application 

took place one week after the jury returned its guilty verdict. 

(Arnold v. Superior Court (1971) 16 Cal.App.3d 984, 987

[continuance upheld when trial delayed due to pendency of 

related proceeding].)

Hatt’s claim that the trial court abused its discretion

because it misunderstood the law is not persuasive. When the 

court continued the hearing on Hatt’s application, two published 

opinions—Montgomery and Zamarripa—had interpreted the 

phrase “prior conviction” for purposes of section 1170.18, 
6

subdivision (i). Both cases define “prior conviction” as one that 

occurred before the filing of the redesignation application. 

(Montgomery, supra, 247 Cal.App.4th at p. 1391; Zamarripa, 

supra, 247 Cal.App.4th at p. 1184.) Under this definition, Hatt 

claims he was eligible for relief since he had not been convicted at 

the time of his application. 

But both the Montgomery and Zamarripa defendants 

filed their redesignation applications after they suffered 

disqualifying convictions. (Montgomery, supra, 247 Cal.App.4th 

at p. 1388; Zamarripa, supra, 247 Cal.App.4th at p. 1182.) 

Neither case considered the issue presented here: whether a 

defendant who has a disqualifying case pending at the time of 

filing an application, which becomes a disqualifying conviction 

before the trial court rules on the application, is barred from 

relief. A case is not authority for a proposition not considered.

(People v. Casper (2004) 33 Cal.4th 38, 43.) There was no abuse 

of discretion in continuing the hearing on Hatt’s application.

The June 2017 ruling

Hatt contends that, even if the trial court did not 

abuse its discretion by continuing the hearing, it erred when it 

denied his application because it misinterpreted the phrase “prior 

conviction” in section 1170.18, subdivision (i). We disagree.

“When we interpret an initiative, we apply the same 

principles governing statutory construction. We first consider the 

initiative’s language, giving the words their ordinary meaning 

and construing this language in the context of the statute and 

initiative as a whole. If the language is not ambiguous, we 

presume the voters intended the meaning apparent from that 

language, and we may not add to the statute or rewrite it to 

conform to some assumed intent not apparent from that 
7

language. If the language is ambiguous, courts may consider 

ballot summaries and arguments in determining the voters’ 

intent and understanding of a ballot measure.” (People v. 

Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) We 

independently review matters of statutory construction. (People 

v. Tran (2015) 61 Cal.4th 1160, 1166.)

Like the courts considering the issue before us, we 

deem the phrase “prior conviction” ambiguous, and turn to 

indicia of the voters’ intent to decipher the phrase’s meaning. 

(See People v. Casillas (2017) 13 Cal.App.5th 745, 751 (Casillas); 

Walker, supra, 5 Cal.App.5th at p. 876; Montgomery, supra, 247 

Cal.App.4th at p. 1389; Zamarripa, supra, 247 Cal.App.4th at p. 

1183.) The Voter Information Guide stated that one of 

Proposition 47’s purposes is to “[e]nsure that people convicted of 

murder, rape, and child molestation will not benefit from this 

act.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of 

Prop. 47, § 3, p. 70.) The Legislative Analyst stated that “no 

offender who has committed a specified severe crime [can] be 

resentenced or have their conviction changed.” (Id., analysis of 

Prop. 47 by Legis. Analyst, p. 36.) And proponents of Proposition 

47 stated that the proposition “includes strict protections to 

protect public safety and make sure rapists, murderers, 

molesters, and the most dangerous criminals cannot benefit.” 

(Id., rebuttal to argument against Prop. 47, p. 39.) These 

materials indicate that voters deemed immaterial whether an 

applicant’s disqualifying conviction occurred before, 

simultaneously with, or after the conviction for which 

redesignation is sought.

Courts that previously examined these materials 

reached the same result. The Casillas, Walker, and Zamarripa
8

defendants all suffered convictions that disqualified them from

relief after they were convicted for felonies eligible for 

redesignation. (Casillas, supra, 13 Cal.App.5th at p. 748; Walker, 

supra, 5 Cal.App.5th at p. 875; Zamarripa, supra, 247 

Cal.App.4th at p. 1182.) The Montgomery defendant’s 

disqualifying conviction occurred contemporaneously with the 

conviction eligible for redesignation. (Montgomery, supra, 247 

Cal.App.4th at p. 1388.) All four defendants argued that section 

1170.18, subdivision (i), did not disqualify them from 

redesignation because their disqualifying convictions did not 

occur prior to the convictions for which they sought 

redesignation. (Casillas, at pp. 747-748; Walker, at pp. 874-875; 

Montgomery, at pp. 1388-1389; Zamarripa, at pp. 1181-1182.) 

All four courts rejected the defendants’ arguments. 

The Casillas and Walker courts held that the provisions of section 

1170.18, subdivision (i), apply so long as the disqualifying 

conviction occurs before the trial court rules on the application

(Casillas, supra, 13 Cal.App.5th at pp. 751-752; Walker, supra, 5 

Cal.App.5th at p. 876), while the Montgomery and Zamarripa

courts held that subdivision (i)’s provisions apply so long as the 

disqualifying conviction occurs before the filing of the application

(Montgomery, supra, 247 Cal.App.4th at p. 1391; Zamarripa, 

supra, 247 Cal.App.4th at p. 1184). Though they couched their 

holdings in different language, the courts recognized that voters 

deemed irrelevant the sequence of the disqualifying conviction in 

relation to the conviction for which redesignation was sought. 

(Casillas, at p. 752; Walker, at p. 879; Montgomery, at p. 1392; 

Zamarripa, at p. 1184.) And a close reading of the cases reveals 

no actual conflict between Montgomery and Zamarripa on the one 

hand and Casillas and Walker on the other: Because all four 
9

defendants’ disqualifying convictions occurred before they filed 

their redesignation applications, substituting “ruling on the 

application” into the holdings of Montgomery and Zamarripa and 

“filing the application” into the holdings of Casillas and Walker

would have no practical effect.

Hatt nevertheless urges us to follow Montgomery and 

Zamarripa and to reject Casillas and Walker. But neither 

Montgomery nor Zamarripa considered whether the provisions of 

section 1170.18, subdivision (i), are triggered if, as here, an 

applicant has a case pending that involves a disqualifying felony. 

To extend their holdings to this factual scenario would encourage 

an accused murderer to take advantage of subdivision (f)’s 

redesignation provisions prior to suffering a conviction. That 

outcome directly contradicts the voters’ intent.

We conclude that Casillas and Walker state the rule 

applicable here: A “‘prior conviction[],’ as used in section 1170.18, 

subdivision (i), refers to a conviction suffered any time before the 

court’s ruling on an application to have a felony conviction 

[redesignated] a misdemeanor.” (Walker, supra, 5 Cal.App.5th at 

p. 876.) Accordingly, if, at the time of filing an application for 

redesignation under section 1170.18, subdivision (f), an applicant 

has a case pending that may result in a disqualifying conviction 

under subdivision (i), the court may continue the hearing on the 

application until resolution of the pending case.

Our holding will not permit a prosecutor to continue 

a matter indefinitely, as Hatt avers. Nothing in our opinion 

changes the law on when good cause for a continuance exists 

under section 1050. Nor are we ruling on a case in which a 

redesignation applicant has no case pending when the application 

is filed. Our holding simply prevents a narrow class of 
10

defendants from attempting to reap a benefit the voters did not 

intend to sow.

DISPOSITION

The trial court’s June 6, 2017, order denying Hatt’s 

application for redesignation is affirmed.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Michael Lief, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Public Defender, William Quest, 

Senior Deputy Public Defender, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Senior 

Assistant Attorney General, Susan Sullivan Pithey, Supervising 

Deputy Attorney General, Michael J. Wise, Deputy Attorney 

General, for Plaintiff and Respondent.