Filed 11/18/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID EARL WALKER,

Defendant and Appellant.

B268475

(Los Angeles County

Super. Ct. No. A645112)

APPEAL from an order of the Superior Court of Los 

Angeles County. Peter Espinoza, Judge. Affirmed.

APPEAL from an order of the Superior Court of Los 

Angeles County, Latonya Hadnot-Prioleau, Commissioner. 

Appeal dismissed.

Richard L. Fitzer, 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 Esther P. Kim, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

David Earl Walker appeals from the orders denying his 

petition for resentencing/application to redesignate his 1988 and 

1989 felony convictions for possession of a controlled substance as 

misdemeanors pursuant to Proposition 47, the Safe 

Neighborhoods and Schools Act (Proposition 47 or the Act). (Pen. 

Code,1 § 1170.18, subds. (a)–(i).) The trial court denied the 

petition on the basis of its finding that appellant is ineligible for 

Proposition 47 relief due to a disqualifying 1992 conviction for 

first degree murder.2 Appellant contends he was eligible for 

Proposition 47 relief because his murder conviction occurred after 

the drug possession convictions. He thus claims the trial court 

erroneously denied his petition to reclassify his felony convictions 

as misdemeanors. We find no merit to appellant’s contention, 

and affirm.

PROCEDURAL BACKGROUND

Appellant pleaded guilty to two counts of possession of a 

controlled substance in violation of Health and Safety Code 

section 11350, subdivision (a) in separate cases in 1988 (Super. 

Ct. L.A. County, No. A645112) and 1989 (Super. Ct. L.A. County, 

No. A480785). In 1992, a jury convicted appellant of first degree 

murder in violation of Penal Code section 187, subdivision (a)

(Super. Ct. Orange County, No. CR40606). The court imposed a 

sentence of 25 years to life for the murder conviction, and a 

1 Undesignated statutory references are to the Penal Code.

2 The trial court’s written order incorrectly states that 

appellant was convicted of burglary in violation of section 459. 

At the hearing on appellant’s application, however, the trial court 

denied relief because of appellant’s “super strike” conviction for 

first degree murder.
3

consecutive term of 2 years 8 months for the two drug possession 

convictions.

On October 19, 2015, appellant filed a petition requesting 

that his felony sentences in Nos. A480785 and A645112 be 

recalled, and that those convictions be resentenced as

misdemeanors pursuant to section 1170.18, subdivisions (a) 

through (e). The trial court (Judge Espinoza) denied the petition 

on the ground that appellant had a disqualifying prior conviction

under section 667, subdivision (e)(2)(C)(iv).

3

DISCUSSION

California voters approved Proposition 47 on November 4, 

2014. (People v. Stylz (2016) 2 Cal.App.5th 530, 533; People v. 

Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced the 

3 Appellant filed a notice of appeal from this order on 

November 19, 2015 (Appeal I). Thereafter, on December 1, 2015, 

appellant filed a second application to have his felony conviction 

in No. A645112 redesignated as a misdemeanor conviction 

pursuant to section 1170.18, subdivisions (f) through (i). The 

trial court (Commissioner Hadnot-Prioleau) also denied relief on 

the basis of appellant’s prior disqualifying conviction under 

section 667, subdivision (e)(2)(C)(iv). Appellant filed a second 

notice of appeal on December 8, 2015 (Appeal II).

Respondent contends both appeals must be dismissed 

because the trial court did not have jurisdiction to consider 

appellant’s second application while Appeal I was pending. 

(People v. Scarbrough (2015) 240 Cal.App.4th 916, 929.) While 

the order denying the second application was a legal nullity from 

which no appeal could be taken, it had no effect on Appeal I. 

(People v. Alanis (2008) 158 Cal.App.4th 1467, 1472–1473.) 

Accordingly, we will proceed on the merits of Appeal I and 

dismiss Appeal II.
4

penalties for certain drug- and theft-related offenses, and 

reclassified those felonies as misdemeanors. (People v. 

Zamarripa (2016) 247 Cal.App.4th 1179, 1182 (Zamarripa); 

Rivera, at p. 1091.) The Act also added section 1170.18 to the 

Penal Code to allow certain convicted felons to petition the court

to have their felony convictions designated as misdemeanors and 

their penalties reduced. But subdivision (i) specifies that “[t]he 

provisions of [section 1170.18] shall not apply to persons who 

have one or more prior convictions for an offense specified in 

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) 

of Section 667.” That is, if a person has a prior conviction for one 

of the so-called “super strikes,” which includes murder, he or she 

is expressly disqualified from Proposition 47 relief.

“Matters of statutory interpretation are questions of law 

subject to de novo review. [Citation.] ‘ “ ‘In construing a statute, 

our task is to determine the Legislature’s intent and purpose for 

the enactment. [Citation.] We look first to the plain meaning of 

the statutory language, giving the words their usual and ordinary 

meaning. [Citation.] If there is no ambiguity in the statutory 

language, its plain meaning controls; we presume the Legislature 

meant what it said. [Citation.] . . .’ [Citations.] We examine the 

statutory language in the context in which it appears, and adopt 

the construction that best harmonizes the statute internally and 

with related statutes. [Citations.]” [Citation.] In addition, we 

may examine the statute’s legislative history. [Citation.]’ 

[Citation.] We apply the same basic principles of statutory 

construction when interpreting a voter initiative.” (Zamarripa,

supra, 247 Cal.App.4th at p. 1183.)

The term “prior conviction” in section 1170.18, subdivision 

(i) is somewhat ambiguous in this context, raising the question of
5

whether an applicant is disqualified from Proposition 47 relief for 

a super strike conviction suffered any time before the application 

is made, or if only a prior super strike conviction that occurred 

before the felony conviction that is the subject of the Proposition 

47 petition will disqualify an applicant from relief. To resolve 

this ambiguity, we turn to the indicia of the voters’ intent found 

in the text, analysis and arguments presented in the official 

election materials. (Robert L. v. Superior Court (2003) 30 Cal.4th 

894, 901.)

Our examination of the voters’ intent expressed in the

Official Voter Information Guide for the November 4, 2014 

general election concerning Proposition 47 compels the conclusion 

that “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 reclassified as a 

misdemeanor.

As the Legislative Analyst explained in the comments on 

Proposition 47: “This measure allows offenders currently serving

felony sentences for the above crimes to apply to have their felony 

sentences reduced to misdemeanor sentences. In addition, 

certain offenders who have already completed a sentence for a 

felony that the measure changes could apply to the court to have 

their felony conviction changed to a misdemeanor. However, no 

offender who has committed a specified severe crime[, including 

murder,] could be resentenced or have their conviction changed.” 

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by

the Legis. Analyst of Prop. 47, p. 36, italics added.) The 

Legislative Analyst’s comments are not necessarily conclusive on 

the meaning of the language of a voter initiative when other 

statements in the ballot pamphlet contradict those comments. 
6

(San Francisco Taxpayers Assn. v. Board of Supervisors (1992)

2 Cal.4th 571, 580.) However, where, as here, the election 

materials contain no such contradictions, the Legislative 

Analyst’s comment all but “eliminates doubt” as to the correct 

interpretation of a ballot initiative. (See People v. Superior Court 

(Henkel) (2002) 98 Cal.App.4th 78, 82.)

In addition to the Legislative Analyst’s comments, the 

rebuttal to the argument against Proposition 47 also makes clear 

that a person who has suffered a murder conviction cannot seek 

relief under section 1170.18 regardless of when that conviction 

occurred: “Proposition 47 does not require automatic release of 

anyone. There is no automatic release. It includes strict 

protections to protect public safety and make sure rapists, 

murderers, molesters and the most dangerous criminals cannot 

benefit.” (Voter Information Guide, supra, rebuttal to argument 

against Prop. 47, p. 39.)

Finally, the voters’ intent to exclude convicted murderers 

from the benefits of Proposition 47 is expressed in the Act itself. 

Section 2 provides in pertinent part: “This act ensures that 

sentences for people convicted of dangerous crimes like rape, 

murder, and child molestation are not changed.” (Voter 

Information Guide, supra, text of Prop. 47, § 2, p. 70.) Section 3 

similarly states: “In enacting this act, it is the purpose and 

intent of the people of the State of California to: [¶] (1) Ensure 

that people convicted of murder, rape, and child molestation will 

not benefit from this act.” (Id., § 3, subd. (1), p. 70.)

While the Act mandates a liberal construction “to effectuate 

its purposes” (Voter Information Guide, supra, text of Prop. 47, 

§ 18, p. 74), in our view that requires “a reading of its ambiguities 

to assure that only persons whose criminal record indicates a 
7

reasonable balance between the seriousness of their crimes and 

the relief provided by the section should fall within its terms. 

And we cannot see that timing plays any role in striking that 

balance.” (People v. Montgomery (2016) 247 Cal.App.4th 1385, 

1391–1392 (Montgomery).) Indeed, “[n]othing in section 1170.18, 

subdivision (i) limits its application to time periods prior to the 

commission of the offense for which reclassification is sought. 

The plain language of the statute suggests a general 

disqualification regardless of when a defendant was convicted of 

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

at p. 1184.)

Relying on People v. Spiller (2016) 2 Cal.App.5th 1014, 

1022 (Spiller), appellant contends that “prior conviction” must be 

interpreted to mean that only a super strike conviction suffered 

before the conviction for which redesignation is sought 

disqualifies an applicant from relief under Proposition 47. We 

disagree. Spiller considered the meaning of “prior conviction” in 

the context of Proposition 36.4 The question was whether a 

conviction for a super strike suffered after the conviction 

resulting in the inmate’s third strike sentence, but before the 

trial court’s ruling on the petition for resentencing, constituted a 

“prior conviction” within the meaning of Proposition 36. The 

court held that because defendant’s conviction for attempted 

murder (a super strike) had occurred after the conviction 

4 Proposition 36, known as the Three Strikes Reform Act of 

2012, allows an inmate currently serving an indeterminate term 

of life under the Three Strikes law for a nonserious, nonviolent 

conviction to petition the court to be resentenced as a second 

strike offender. (§ 1170.126, subd. (e).)
8

resulting in his indeterminate life sentence under the Three 

Strikes law, it was not a disqualifying prior conviction under 

Proposition 36. In so holding, the court noted, “section 1170.126 

is written so that statutory eligibility determinations are made as 

of the date the defendant was sentenced to his or her 

indeterminate third strike life sentence. The current conviction 

is the conviction the inmate is currently serving a third strike 

indeterminate life sentence for, and prior convictions are those 

which occurred prior to the inmate’s current conviction.” (Spiller, 

at p. 1022.)

Although Propositions 36 and 47 share some similar 

language, the two ballot initiatives reflect profound differences in 

purpose and intent. The voters enacted Proposition 47 “to ensure 

that prison spending is focused on violent and serious offenses, to 

maximize alternatives for nonserious, nonviolent crime, and to 

invest the savings generated from this act into prevention and 

support programs.” (Voter Information Guide, supra, text of

Prop. 47, § 2, p. 70.) The Act achieves these goals by classifying 

specific nonserious, nonviolent crimes as misdemeanors rather 

than felonies, while expressly disqualifying offenders with super 

strike convictions from benefiting from its provisions.

Proposition 36, on the other hand, was aimed at “restor[ing] 

the original intent of California’s Three Strikes law.” (Voter 

Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 1, 

p. 105.) And as stated in section 667, subdivision (b), the Three 

Strikes law itself is fundamentally a sentencing scheme intended 

to impose progressively harsher sentences on recidivist offenders 

who have previously committed serious or violent felonies: “It is 

the intent of the Legislature in enacting subdivisions (b) to (i), 

inclusive, to ensure longer prison sentences and greater 
9

punishment for those who commit a felony and have been 

previously convicted of one or more serious and/or violent felony 

offenses.” (§ 667, subd. (b).)

Noting that “[t]here is a presumption that terms must be 

interpreted to be consistent with the statutory scheme of which 

they are a part,” Spiller kept its analysis within the context of 

Proposition 36 and consistent with the provisions of the Three 

Strikes scheme as a whole. (Spiller, supra, 2 Cal.App.5th at 

p. 1023.) We must likewise confine our interpretation of “prior 

conviction” to the context of Proposition 47 and the voters’ intent 

in enacting it. That means we must adopt the interpretation 

most consistent with the intent of the voters, and refrain from 

falling back on understandings of the term from other contexts

which conflict with the voters’ intent in enacting this law. As the 

Montgomery court observed: “We are so used to regarding ‘prior 

convictions’ as those that preceded a current case or conviction 

that our instinctive reaction is to read this section in the same 

way. But when analyzed in terms of accomplishing what the 

framers and voters intended, a distinction between convictions 

suffered before the conviction being considered for redesignation 

and those suffered contemporaneously or afterward makes no 

sense.” (Montgomery, supra, 247 Cal.App.4th at pp. 1391–1392.)

We therefore conclude that within the context of 

Proposition 47, a prior disqualifying conviction is a super strike 

conviction suffered any time before the court’s ruling on an 

application to have a felony conviction reclassified as a 

misdemeanor.
10

DISPOSITION

The appeal filed December 8, 2015 is dismissed. In the 

appeal filed November 19, 2015, the order denying the petition 

under Penal Code section 1170.18 is affirmed.

LUI, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.