Filed 5/23/16 P. v. Contreras CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR RODRIGUEZ CONTRERAS,

Defendant and Appellant.

 H042360

 (Monterey County

 Super. Ct. No. SS131149B)

I. INTRODUCTION

Defendant Hector Rodriguez Contreras pleaded no contest to felony possession of 

a controlled substance (former Health & Saf. Code, § 11377, subd. (a)). The trial court 

suspended imposition of sentence and placed defendant on probation. While defendant 

was on probation, Penal Code section 1170.181 was enacted by the voters as part of 

Proposition 47, which reclassified certain offenses as misdemeanors. Defendant filed an 

application in the trial court under section 1170.18, subdivision (f) to have his felony 

conviction designated a misdemeanor. The court denied the petition without prejudice 

pursuant to section 1170.18, subdivision (a).

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

On appeal, defendant contends that the trial court erred by failing to automatically 

designate his felony conviction a misdemeanor. Defendant contends that the ameliorative 

provisions of Proposition 47 in reclassifying certain offenses as misdemeanors applied 

retroactively to him, and that he was not required to follow the procedures for recall and 

resentencing set forth in section 1170.18 in order to have his offense designated a 

misdemeanor.

For reasons that we will explain, we will affirm the order.

II. FACTUAL AND PROCEDURAL BACKGROUND

In June 2013, defendant was charged by complaint with two counts pertaining to a 

controlled substance and paraphernalia. In July 2013, the complaint was amended to add 

count 3, felony possession of a controlled substance (former Health & Saf. Code, 

§ 11377, subd. (a)), and defendant pleaded no contest to that count. The trial court 

suspended imposition of sentence and placed defendant on Proposition 36 probation for 

18 months (see § 1210.1). The remaining counts were dismissed.

In October 2013, defendant was found in violation of probation and probation was 

revoked. Thereafter, in November 2013, the trial court terminated defendant’s 

Proposition 36 probation and placed him on formal probation for three years.2

In April and in May 2014, defendant admitted violating probation. Probation was 

revoked and reinstated each time.

In March 2015, after Proposition 47 had passed, defendant filed an application 

requesting that his felony conviction for possession of a controlled substance be 

designated a misdemeanor pursuant to section 1170.18, subdivisions (f) and (g). In the 

 

2

The judgment (order of probation) was the subject of defendant’s prior appeal 

(People v. Contreras (Jun. 10, 2015, H040402) [nonpub. opn.]). This court ultimately 

affirmed the judgment. In the present appeal, defendant refers to portions of the record in 

case No. H040402. On our own motion, we take judicial notice of the record in that case. 

(Evid. Code, § 452, subd. (d)(1).)
3

application, which was on a preprinted form, defendant marked a box indicating that he 

had “completed” his “sentence.” He left unmarked a box indicating that he was currently 

serving a sentence.

In April 2015, the prosecution filed a response, contending that defendant was 

“not eligible for the requested relief” because he “ha[d] not been sentenced.”

A hearing was held on the matter on May 27, 2015. The trial court indicated that 

the “same issue” had been taken up in a “previous case” before the court. The court 

explained that, in felony probation cases, “[t]he way we’ve been handling these in this 

department is that, essentially, he can ask to be sentenced but that may trigger a prior 

prison term, or he can wait out the term of probation, or he can attempt a 17(b) motion.” 

Defense counsel indicated that he was submitting on an argument that had been made in 

the previous case before the court “in regards to the term ‘sentencing.’ ” The court stated 

that it “decline[d] to follow that position as to what a legal definition of ‘sentencing’ is” 

and denied defendant’s petition without prejudice pursuant to section 1170.18, 

subdivision (a). The record on appeal does not reflect the substance of the argument in 

the unspecified previous case to which defense counsel and the court were referring. By 

written order filed May 27, 2015, the court denied defendant’s application.

III. DISCUSSION

A. Legal Background: Proposition 47

On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods 

and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), 

eff. Nov. 5, 2014.) Proposition 47 reclassified certain drug and theft related offenses as 

misdemeanors instead of felonies or alternative felony misdemeanors. (§ 1170.18, 

subd. (a); People v. Shabazz (2015) 237 Cal.App.4th 303, 308.) The statutes amended 

by Proposition 47 include Health and Safety Code section 11377, subdivision (a), the 

former version of which provided the basis for defendant’s felony conviction. Prior to 

Proposition 47, possession of a controlled substance in violation of Health and Safety 
4

Code section 11377, subdivision (a) was a wobbler. (People v. Lynall (2015) 233 

Cal.App.4th 1102, 1108.) As a result of Proposition 47, Health and Safety Code 

section 11377, subdivision (a) now provides that possession of specified controlled 

substances is punishable as a misdemeanor unless the defendant has certain disqualifying 

prior convictions.3

Proposition 47 also enacted a new statutory provision, section 1170.18, which sets 

forth two different procedures for defendants seeking to have a felony conviction 

resentenced as, or otherwise designated, a misdemeanor.

The first procedure under section 1170.18 applies to a defendant who is “currently 

serving a sentence” for a felony conviction and who would have been guilty of a 

misdemeanor under the Act if the Act had been in effect at the time of the offense. 

(§ 1170.18, subd. (a), italics added.) Such a defendant may petition for a recall of his or 

her sentence and request resentencing in accordance with the amended statute that 

reclassified the defendant’s offense as a misdemeanor. (Ibid.) If the petitioner meets the 

requisite statutory criteria, “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.” (Id., subd. (b); see id., subd. (c).) Section 1170.18 sets forth various factors that 

a court may consider in exercising its discretion. (Id., subd. (b)(1)-(3).) A defendant is 

not eligible for resentencing if he or she has suffered a specified prior conviction. (Id., 

 

3 Health and Safety Code section 11377, subdivision (a) provides for the following 

punishment: “imprisonment in a county jail for a period of not more than one year, 

except that such person may instead be punished pursuant to subdivision (h) of 

Section 1170 of the Penal Code if that person has one or more prior convictions for an 

offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) 

of Section 667 of the Penal Code or for an offense requiring registration pursuant to 

subdivision (c) of Section 290 of the Penal Code.” Section 667, subdivision (e)(2)(C)(iv) 

lists a number of serious or violent felonies, which have been referred to as “super strike” 

offenses. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.)
5

subd. (i).) Generally, a defendant who is resentenced pursuant to section 1170.18 is 

subject to a one-year period of parole and may not possess a firearm. (Id., subds. (d) & 

(k).)

The second procedure under section 1170.18 applies to a defendant who has 

“completed his or her sentence” for a felony conviction and who would have been guilty 

of a misdemeanor under the Act if the Act had been in effect at the time of the offense. 

(§ 1170.18, subd. (f), italics added.) Such a person may file an application to have the 

felony conviction designated a misdemeanor, and the trial court must make the 

misdemeanor designation if the defendant meets the requisite criteria and has not suffered 

a specified prior conviction. (Id., subds. (f), (g) & (i).) A trial court is not required to 

hold a hearing, unless requested by the applicant, before ruling on the application. (Id., 

subd. (h).)

Any petition or application must be filed within three years after the effective date 

of the Act unless good cause is shown for a later filing. (§ 1170.18, subd. (j).)

On appeal, defendant contends that the trial court was required to retroactively 

apply the Act’s reclassification of his felony offense as a misdemeanor and automatically 

designate his felony conviction a misdemeanor. Defendant argues that in seeking this 

relief in the trial court, he was not required to follow the procedure set forth in 

section 1170.18, subdivision (a) regarding a petition for a recall of sentence because, as a 

probationer whose imposition of sentence was suspended, he is not “currently serving a 

sentence” within the meaning of subdivision (a). He argues in the alternative that, if this 

court determines that section 1170.18 is “the sole means of relief for those previously 

convicted, this court must deem [him] to be ‘serving a sentence for a conviction’ so as to 

permit [him] to obtain relief through section 1170.18.”

The Attorney General responds that defendant was not entitled to an automatic 

reduction of his felony to a misdemeanor, and that he was required to follow the 

recall/resentencing procedure set forth in section 1170.18. The Attorney General 
6

contends that the matter should be remanded to the trial court to consider defendant’s 

eligibility for resentencing to a misdemeanor.

We will first consider the issue of retroactivity before turning to the question of 

whether defendant was required to follow the petition procedure set forth in 

section 1170.18, subdivision (a) in order to be resentenced to a misdemeanor.

B. Retroactivity

1. Legal background

Section 3 specifies that no part of the Penal Code is retroactive, “unless expressly 

so declared.” Section 3 “provides the default rule” regarding retroactivity, “codifying 

‘the time-honored principle . . . that in the absence of an express retroactivity provision, a 

statute will not be applied retroactively unless it is very clear from extrinsic sources that 

the Legislature [or electorate] . . . must have intended a retroactive application.’ 

[Citations.]” (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).)

A “qualification” to the prospective-only presumption regarding statutory 

amendments was set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). (Brown, 

supra, 54 Cal.4th at p. 323.) That qualification is: “When the Legislature [or electorate] 

has amended a statute to reduce the punishment for a particular criminal offense, we will 

assume, absent evidence to the contrary, that the Legislature [or electorate] intended the 

amended statute to apply to all defendants whose judgments are not yet final on the 

statute’s operative date. [Citation.]” (Ibid., fn. omitted.) As the Estrada court explained: 

“When the Legislature amends a statute so as to lessen the punishment[,] it has obviously 

expressly determined that its former penalty was too severe and that a lighter punishment 

is proper as punishment for the commission of the prohibited act. It is an inevitable 

inference that the Legislature must have intended that the new statute imposing the new 

lighter penalty now deemed to be sufficient should apply to every case to which it 

constitutionally could apply. The amendatory act imposing the lighter punishment can be 
7

applied constitutionally to acts committed before its passage provided the judgment 

convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.)

In In re May (1976) 62 Cal.App.3d 165 (May), the appellate court addressed the 

application of Estrada and the issue of when a judgment is final for a defendant placed 

on probation. In May, the “proceedings in the case were suspended and [the defendant]

was placed on probation” for a drug offense. (Id. at p. 167.) A statutory amendment 

subsequently reduced the offense from a felony to a misdemeanor. (Ibid.) In the 

defendant’s case, however, the trial court continued to treat the offense as a felony when 

the defendant was later found in violation of probation. (Id. at pp. 167-168.) The 

appellate court determined that, “[s]ince the proceedings were suspended, no final 

judgment was entered for the purposes of this case. [Citations.] Thus, the rationale of 

Estrada applies to this case because the amendatory statute became effective after the 

commission of the act but before the judgment of conviction was final.” (Id. at p. 169.) 

The appellate court therefore concluded that the defendant’s offense should be designated 

and treated as a misdemeanor. (Ibid.)

“The rule in Estrada, of course, is not implicated where the Legislature clearly 

signals its intent to make the amendment prospective, by the inclusion of either an 

express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793, 

fn. omitted (Nasalga) (plur. opn. of Werdegar, J.); see Estrada, supra, 63 Cal.2d at p. 747 

[“where there is an express or implied saving clause,” the prior statute “should continue 

to operate as to past acts”].) If there is no express saving clause, one will be implied if 

the Legislature or electorate has “demonstrate[d] its intention with sufficient clarity that a 

reviewing court can discern and effectuate it.” (In re Pedro T. (1994) 8 Cal.4th 1041, 

1049 (Pedro T.).)

For example, the “functional equivalent of a saving clause” was included in 

Proposition 36, the Three Strikes Reform Act of 2012 (the Reform Act). (People v. 

Yearwood (2013) 213 Cal.App.4th 161, 172 (Yearwood).) The Reform Act “change[d] 
8

the requirements for sentencing a third strike offender” by authorizing life sentences only 

in certain cases. (Yearwood, supra, at p. 167.) The Reform Act also enacted a new 

statute, section 1170.126, which “created a postconviction release proceeding whereby 

[an eligible] prisoner . . . may have his or her sentence recalled and be sentenced as a 

second strike offender unless the court determines that resentencing would pose an 

unreasonable risk of danger to public safety. [Citation.]” (Yearwood, supra, at p. 168.)

The Yearwood defendant was sentenced as a third strike offender prior to the 

Reform Act. (Yearwood, supra, 213 Cal.App.4th at p. 167.) Had he been sentenced after 

the Reform Act, he would not have been sentenced to an indeterminate life term. 

(Yearwood, supra, at p. 168.) The appellate court considered whether it could issue an 

order that he be resentenced, or whether his remedy was “limited to filing a petition for a 

recall of his sentence in compliance with section 1170.126.” (Ibid.)

The Yearwood defendant argued that the Reform Act should apply retroactively, 

based on Estrada, because the Reform Act reduced the punishment for his offense. The 

Yearwood court disagreed, finding that “[t]he Estrada rule does not apply to the [Reform] 

Act because section 1170.126 operates as the functional equivalent of a saving clause.” 

(Yearwood, supra, 213 Cal.App.4th at p. 172.) The court examined the language of 

section 1170.126, subdivision (b), which provides, “Any person serving an indeterminate 

term of life imprisonment” imposed for a third strike conviction “may file a petition for a 

recall of sentence.” The court found this phrase was “not ambiguous” and that 

section 1170.126 “is correctly interpreted to apply to all prisoners serving an 

indeterminate life sentence imposed under the former three strikes law.” (Yearwood, 

supra, at p. 175.)4

 

4

The California Supreme Court is currently considering whether the Reform Act’s 

resentencing provisions apply retroactively to a defendant who was sentenced before the 

act’s effective date, but whose judgment was not final until after that date. (See, e.g., 

People v. Conley (2013) 215 Cal.App.4th 1482, review granted Aug. 14, 2013, S211275.)
9

2. Analysis

Defendant contends that, as a probationer whose imposition of sentence has been 

suspended, he is entitled to “receiv[e] the benefit of ameliorative legislation passed after 

the grant of probation.” Specifically, he argues that he is entitled to the benefit of 

Proposition 47 and the resulting statutory amendment that changed his drug offense from 

a felony to a misdemeanor, “in the same manner as those persons coming before the court 

for the first time” after the amendment.

The question of whether retroactive application of Proposition 47’s reduced 

penalty provisions is required under Estrada requires a determination of the intent of the 

electorate (Estrada, supra, 63 Cal.2d at p. 744), which may be signaled by the inclusion 

of “either an express saving clause or its equivalent” (Nasalga, supra, 12 Cal.4th at 

p. 793; see Estrada, supra, at p. 747).

We determine that although Proposition 47 does not have an express saving 

clause, it did create section 1170.18, which is functionally equivalent to a saving clause. 

(See Nasalga, supra, 12 Cal.4th at p. 793; Pedro T., supra, 8 Cal.4th at p. 1049; Estrada, 

supra, 63 Cal.2d at p. 747.) In enacting Proposition 47, the electorate drew distinctions 

between three categories of defendants—those who had not yet been sentenced, those 

who were “currently serving” sentences (§ 1170.18, subd. (a)), and those who had 

completed their sentences (id., subd. (f))—and it provided procedures for those latter two 

categories of defendants who sought to benefit from the ameliorative provisions provided 

by Proposition 47. In particular, under section 1170.18, subdivision (a), a defendant who 

is “currently serving a sentence for a conviction” may petition for a recall of sentence and 

resentencing. Like the resentencing petition process created by the Reform Act, the 

resentencing petition process contained in section 1170.18, subdivision (a) expressly 

applies to defendants who are “currently serving a sentence” for a crime that would have 

been a misdemeanor after the passage of Proposition 47. (Cf. § 1170.126, subd. (b); see 

Yearwood, supra, 213 Cal.App.4th at p. 173.) By setting forth a specific procedure for 
10

those defendants who were “currently serving a sentence” at the time the initiative took 

effect (§ 1170.18, subd. (a)), the electorate effectively and clearly “demonstrate[d] its 

intention” that such defendants follow those procedures set forth in section 1170.18 

before being resentenced (Pedro T., supra, at p. 1049).

We therefore turn to the question of whether defendant is “currently serving a 

sentence,” such that the recall and resentencing procedure set forth in section 1170.18 

applies to him.

C. “Currently Serving a Sentence”

As we set forth above, section 1170.18 sets forth the procedure by which a 

defendant “currently serving a sentence” (id., subd. (a)) for a felony conviction may 

petition for a recall of his or her sentence and potentially be resentenced to a 

misdemeanor (see, e.g., id., subds. (a) - (d)). Defendant contends that, because the 

imposition of his sentence was suspended and he was placed on probation (see §§ 1203, 

subd. (a), 1203.1, subd. (a), 1203.2, subd. (c)), he is not “currently serving a sentence” 

within the meaning of section 1170.18, subdivision (a), and therefore the petition 

procedure provided by section 1170.18 does not apply to him. Defendant argues in the 

alternative that, if this court determines that section 1170.18 is “the sole means of relief 

for those previously convicted, this court must deem [him] to be ‘serving a sentence for a 

conviction’ so as to permit [him] to obtain relief through section 1170.18.”

The Attorney General contends that “a probationer whose imposition of sentence 

was suspended, is serving a sentence within the meaning of Proposition 47,” and that 

defendant must therefore follow the procedures for recall or resentencing that are set 

forth in section 1170.18.

“ ‘In interpreting a voter initiative . . . , we apply the same principles that govern 

statutory construction. [Citation.] Thus, [1] “we turn first to the language of the statute, 

giving the words their ordinary meaning.” [Citation.] [2] The statutory language must 

also be construed in the context of the statute as a whole and the overall statutory scheme 
11

[in light of the electorate’s intent]. [Citation.] [3] When the language is ambiguous, 

“we refer to other indicia of the voters’ intent, particularly the analyses and arguments 

contained in the official ballot pamphlet.” [Citation.]’ [Citation.] [¶] In other words, 

our ‘task is simply to interpret and apply the initiative’s language so as to effectuate the 

electorate’s intent.’ [Citation.]” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 

900-901.)

In People v. Garcia (2016) 245 Cal.App.4th 555 (Garcia), we determined that the 

phrase “currently serving a sentence for a conviction” in section 1170.18, subdivision (a), 

“appl[ies] to all those with felony dispositions, including those placed on probation who 

otherwise meet the conditions specified in the statutory scheme.” (Garcia, supra, at 

p. 559.) In that case, as in the instant case, the trial court suspended imposition of 

sentence and placed the defendant on probation for felony possession of a controlled 

substance (former Health & Saf. Code, § 11377, subd. (a)). (Garcia, supra, at p. 557.)

We agreed with the parties in Garcia that interpreting the statutory language to 

not include probationers would lead to absurd consequences. We observed that “there is 

nothing in either the ballot materials or the statutory language that appears to limit the 

phrase ‘currently serving a sentence for a conviction’ to those serving a term of 

imprisonment.” (Garcia, supra, 245 Cal.App.4th at p. 558.) Moreover, “granting 

probation is in some contexts a ‘sentencing choice’ (see, e.g., Cal. Rules of Court, 

rule 4.405(6) [‘ “Sentence choice” means the selection of any disposition of the case 

that does not amount to a dismissal, acquittal, or grant of a new trial.’]). (Cf. People v. 

Howard (1997) 16 Cal.4th 1081, 1084 [referring to court’s authority ‘at time of 

sentencing’ either to suspend imposition of sentence or impose sentence and suspend its 

execution]; In re DeLong (2001) 93 Cal.App.4th 562, 571 [‘an order granting probation 

and suspending imposition of sentence is a form of sentencing’].)” (Ibid.) Indeed, “the 

language of another voter initiative, Proposition 36, the Substance Abuse and Crime 

Prevention Act of 2000, used the language ‘sentenced to probation.’ (See People v. 
12

Mendoza (2003) 106 Cal.App.4th 1030, 1034 [quoting ballot pamphlet to distinguish 

conviction from sentence and referring to ‘sentence of probation’].)” (Ibid.)

We explained in Garcia that “[t]he ballot materials for Proposition 47 likewise 

indicate that the voters regarded probation as one of the options within a sentencing 

procedure; the legislative analysis refers to offenders who are ‘sentenced’ to supervision 

by a county probation officer while indicating that both jail time for eligible offenders 

and the caseloads of probation officers would be reduced by including felony probation 

as a disposition eligible for resentencing under section 1170.18. (See People v. Shabazz

(2015) 237 Cal.App.4th 303, 310 [discussing Prop. 47 mechanism for resentencing after 

being ‘sentenced or placed on probation’].) The Legislative Analyst discussed these 

options under the heading of ‘Misdemeanor Sentencing’ and generally noted the fiscal

consequences of ‘the resentencing of individuals currently serving sentences for felonies 

that are changed to misdemeanors.’ (Italics added.) Nothing in the text of the initiative, 

the legislative analysis, or the arguments for and against it indicate an intent to 

distinguish between a prison sentence and felony probation, or between a grant of 

probation after suspending imposition of sentence and an order imposing sentence but 

suspending its execution. The statute itself allows the recall of a ‘felony sentence’ and 

allows the petitioner to request ‘resentencing’ in Health and Safety Code section 11377 

cases, without segregating those serving prison sentences from those serving probation 

terms. (§ 1170.18, subds. (a), (b).) . . . Proposition 47 was intended to reach those with 

‘nonserious, nonviolent crimes like . . . drug possession,’ which would encompass many 

who were granted probation. (Voter Information Guide, [Gen. Elec. (Nov. 4, 2014)]

text of Prop. 47, § 3, p. 70.) To deprive those defendants of the benefit of the reduced 

penalty for their offenses would create an incongruity the voters would not have either 

anticipated or approved.” (Garcia, supra, 245 Cal.App.4th at pp. 558-559, fns. omitted.)

In this case, defendant argues that the California Supreme Court in People v. 

Scott (2014) 58 Cal.4th 1415 (Scott), recognized a distinction between probationers 
13

whose imposition of sentence has been suspended and probationers whose execution of 

sentence has been suspended in the context of the Criminal Justice Realignment Act of 

2011 (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1) 

(Realignment Act). The Realignment Act, which changed the punishment for some 

felony convictions from prison to county jail (Scott, supra, at p. 1418-1419), “applied 

prospectively to any person sentenced on or after October 1, 2011” (§ 1170, subd. (h)(6), 

italics added). In Scott, the California Supreme Court concluded that a defendant placed 

on probation “is ‘sentenced’ when a judgment imposing punishment is pronounced 

[although] execution of the sentence is then suspended.” (Scott, supra, at p. 1423.) The 

court reached this conclusion based on “the statutory provisions and case law existing at 

the time of the Legislature’s enactment of section 1170[, subdivision] (h)(6) in 2011.” 

(Ibid.) The court explained that “[t]here is no definition of ‘sentenced’ in the 

Realignment Act itself and nothing in the legislative history of the [Realignment] Act 

indicates how the Legislature intended the [Realignment] Act to be applied in this 

situation.” (Id. at p. 1421.)

In contrast, as we have explained, “[t]he ballot materials for Proposition 47 . . . 

indicate that the voters regarded probation as one of the options within a sentencing 

procedure.” (Garcia, supra, 245 Cal.App.4th at p. 558, fn. omitted.) Moreover, to give 

defendants sentenced to prison but not those granted probation “the benefit of the reduced 

penalty for their offenses would create an incongruity the voters would not have either 

anticipated or approved.” (Id. at p. 559.)

Defendant argues that section 1170.18 places “limitations” on a recall petition or 

on resentencing, and that these limitations only apply or only “make sense” in the context 

of a defendant who has been sentenced to prison rather than a defendant who has been 

placed on probation. The “limitations” identified by defendant include: (1) a defendant 

who has suffered a specified prior conviction, such as rape, murder, or child molestation 

may not petition for a recall of sentence (§ 1170.18, subd. (i)), (2) the court must make a 
14

determination that resentencing the defendant will not pose an unreasonable risk of 

danger to public safety, meaning an unreasonable risk that the defendant will commit a 

new violent felony, and this determination may include consideration of the defendant’s 

disciplinary and rehabilitation records while incarcerated (id., subds. (b) & (c)), (3) a 

defendant who is resentenced is subject to a one-year period of parole unless the court 

orders a release from parole (id., subd. (d)), and (4) a court resentencing a defendant may 

not impose a term longer than the original sentence. Regarding the first limitation, 

defendant argues that it is unlikely that a probationer has suffered one of the specified 

prior convictions. Regarding the second limitation, defendant contends that it is unlikely 

a defendant would have received probation if the court believed the defendant posed an 

unreasonable risk of committing a new violent felony. Regarding the third limitation, 

defendant contends that it “makes no sense” that a person placed on probation would 

“also receive consecutive parole supervision of one year.” Regarding the fourth 

limitation, defendant argues that a court could never impose a longer sentence on a 

person whose imposition of sentence was suspended because such a person never had a 

sentence imposed in the first place.

We are not persuaded by defendant’s arguments. Some of the “limitations” may 

be more appropriately applied to one defendant over another defendant, whether those 

two defendants are both in prison, both on probation, or one in prison and one on 

probation. The existence of the “limitations,” however, are not inconsistent with an 

intent by the electorate to include probationers within the recall/resentencing procedures. 

For example, that a court may be more likely to have public safety concerns when a recall 

petition is brought by a defendant in prison as compared to a petition brought by a 

probationer, does not suggest that the electorate intended to allow a recall petition by a 

prisoner only and not by a probationer.

Defendant also briefly refers to section 1170.18, subdivision (n), which states that 

“[n]othing in this and related sections is intended to diminish or abrogate the finality of 
15

judgments in any case not falling within the purview of this act.” Defendant argues that 

this subdivision “make[s] sense only in the context” of defendants sentenced to prison, 

because probationers whose imposition of sentence have been suspended “do not have 

final judgments of conviction.” We are not persuaded by defendant’s argument. For 

purposes of finality, a defendant may appeal from “a final judgment of conviction,” 

which includes “an order granting probation.” (§ 1237, subd. (a).) The existence of 

subdivision (n) thus does not persuade us that section 1170.18 applies only to defendants 

in prison and not on probation.

D. Summary

Defendant, who was on probation, sought to have his felony drug conviction 

automatically designated a misdemeanor. He filed an application under section 1170.18, 

subdivision (f), which applies to a defendant who has “completed” his or her sentence. 

(Ibid.) The trial court determined that defendant had not yet been sentenced, and it also 

apparently determined that none of the procedures provided by section 1170.18 were 

available to defendant. As we have explained, however, defendant is “currently serving 

a sentence” within the meaning of section 1170.18, subdivision (a).5 Therefore, the trial 

court could properly consider a petition by defendant for recall and resentencing under 

subdivision (a).

Although the trial court believed that defendant could not petition for recall and 

resentencing under section 1170.18, subdivision (a) while on probation, and we have

concluded otherwise, we find no basis for reversing the court’s order in this case. 

Defendant in this case filed an application under subdivision (f) for automatic designation 

of his felony conviction as a misdemeanor, rather than a petition for recall and 

resentencing under subdivision (a). Because defendant was still on probation and serving 

 

5

In People v. Davis (2016) 246 Cal.App.4th 127, petition for review pending, 

petition filed May 6, 2016, S234324, the appellate court similarly concluded that 

probationers fall within the meaning of section 1170.18, subdivision (a).
16

a sentence, he was not entitled to an automatic designation of his felony conviction as a 

misdemeanor under subdivision (f). Accordingly, the court’s denial of defendant’s 

petition without prejudice was proper.6

IV. DISPOSITION

The May 27, 2015 order is affirmed.

 

6

 Defendant is not precluded from seeking relief from the trial court under 

section 1170.18, subdivision (a). 
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.