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 (Su per. Ct. No. 2003030277) (Ventura County)

In November 2014, voters enacted Proposi tion 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 rede signated a misdemeanor

. ( Ibid. ;

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

1 All f urther 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 pr esented by this case is, ‘Prior to what?’” ( People v. Montgomery (2016) 247 Cal.App.4th 1385, 1387 ( Montgomery ).) We hold that a person who suffer s a disqualifying conviction after filing a redesignation application but prior to the trial court’s ruling on th at application is barred
from relief under section 1170.18

.

FACTUAL AND PROCEDURAL HISTORY In October 2003, George Don ald Hatt pled guilty to possession of methamphetamine, then a felony

. (Health & Saf. Code, § 11377, subd. (a)

. ) The trial court se ntenced him to three years in state prison.

In May 2016, while a murder charg e was pending against him in Washington, Hatt filed an application to have his methamphetamine possession conviction re designated a
misdemeanor. ( § 1170.18 , subd. (f).) The pr osecution opposed the application because of Hatt’s pending murder charge

. 2 T he 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 cas e, 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 t he June hearing the prosecutor informe d the court that the Washington jury found
Hatt guilty of murder

. The court then denied Hatt’s application.

2 A m urder 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 r uling 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 br iefing 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 ord er, original ruling is deemed tentative].)
The continuances
Hatt next contends the trial court abused its
discretion when it continue d the hearing on his application until
after the conclusion of his murder case

. We again disagree. 4

3 E ven if the trial court’s August 2016 ruling were final , we could not conside r 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 benefi t 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 cour t 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 conti nuance 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 tria l court accomplished substantial justice by continuing the hearing . ( Doolin

, supra , 45 Cal.4th at p. 450.) T o “‘[e]nsure that people convicted of murd er , 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 subdivi sion (b) is thus inapplicable. ( People v. Shabazz (2015) 237 Cal.App.4th 303, 310

- 311 [ describing the different metho ds for obtainin g relief under section 1170.18] .)5

provisions

, section 1170.18 includes “ a general disqualification [that a pplies] regardless of when a defendant was convicted of the disqualifying offense. ” ( Zamarripa

, supra , 247 Cal.App.4th at p p . 1182 , 1184 ; see also People v. Walker (2016) 5 Cal.App.5th 872, 876

- 877 ( Walker ) [discussing additional authority]; Montgomery

, s upra , 247 Cal.App.4th at pp. 1390

- 1391 [same].)
Had the court denied the continuance s here , it would have
thwarted this purpose because it could not have denied Hatt’s application des pite the pending murder charge. B y granting the
continuance s , the court acceded to voters’ wishes to make certain
that a convicted murderer could not tak e 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 L egislature].)

Second, the continuance s w ere useful. ( Beeler

, supra , 9 Cal.4th at p. 1003.) The evidence necessitating the
continuance s

— whether Hatt had committed a disqualifying act

—

was ma terial to his redesignation application. And the prosecution provided the trial court with a reasonable t imeline of when the evidence could be obtained: The prosecutor informed
the court when Hatt’s trial was scheduled t o start, and kept it appris ed of the trial’s progress. The hearing on Hatt’s application took place one week after the jury returned its gu ilty 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 persuasi ve. When the

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

—

Montgomery and Zamarripa

— had interpreted the phrase “prio r conviction” for purposes of section 1170.18
,6

subdivision (i). Both cases define “prior conviction” as one th at 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 th is definition, Hatt
claims he was eligible for relief since he had not been convicted a t 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 . 118 2 .)
N either case considered the issue presented here: w hether a defendant who has a disqualifying case pending at the time of filing a n 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 t rial court did not abuse its discretion by continuing the hearing, it erred when it denied his application because it misinterpr eted the phrase “prior
conviction ” in section 1170.18, subdivision (i). We disagree.

“When we interpret an initiative, we appl y 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 ambi guous, 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 that7

language. If the language is ambiguous, courts may consider
ballot summ aries and arguments in determining the vote rs’ intent and understanding of a ballot measure.” ( People v. Superior Court ( Pearson ) (2010) 48 Cal.4th 564, 571 .) We independently review m a tters of statutory construction . ( People
v. Tran (2015) 61 Cal.4th 1 160, 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. 5 th 745, 751 ( Casillas ) ; W alker

, 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 i s to “ [e]nsure that people convicted of murder, rape, and child molestation wi ll 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

resentenc ed or have their con viction 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, an d the most dang erous 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 convi ction for which redesignation i s sought

.

Courts that previously examined these materials
reached the same result

. The Casillas

, Walker , and Zamarripa8

defendants all suffered convi ctions that disqualified them f r om relief after they were convicted f or 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. 118 2.) 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

occu r prior to the c onviction s for which they sought

re designation. ( Casillas

, at pp. 747

- 748 ; Walker

, at pp. 874

- 875 ; Montgomery

, at p p. 1388

- 1389 ; Zamarripa , at p p. 1181

- 118 2.)

All four c ourt s re ject ed the defendant s ’ 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. 87 6 ) , while t he 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 )

. T hough they couch ed 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. 75 2 ; Walker

, at p. 879 ; Montgomery

, at p. 1392 ; Zamarripa , at p. 1184.) And a close reading of the cases reveal s

no actual conflict between Montgomery and Zamarripa on the one hand and Casillas and Walker on the other: Because all four9

defendants’ disquali fying convictions occurred before they filed their redesignation applications, substituting “ruling on the application” into the holdings of Montgomery and Zamarripa and
“fi ling the application” into the holdings of Casillas and Walker would have no practi cal effect.

Hatt nevertheless urg es 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 applica nt has a case pending that in volves a disqualifying felony.
T o extend their holdings to th is factual scenario would encourage an accused murderer to take advantage of subdivision (f)’s redesignation provisions prior to suffering a conviction

. That

outcom e directly contradict s 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, i f, at the time of filing an application for redesignation under section 1170.18 , subdivision (f), an applicant has a case pend ing that may result in a disqualifying conviction
under subdivision (i), the court may continue the hearing on the application u ntil 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 narro w class of10

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, Attorn ey 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.