Filed 7/23/15 P. v. Carver CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN RICHARD CARVER,

Defendant and Appellant.

 D067078

 (Super. Ct. No. SCD255241)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. 

Alksne, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. 

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Prior to passage of Proposition 47, appellant Benjamin Richard Carver, pled guilty 

to one count of possessing concentrated cannabis in violation of Health and Safety Code 
2

section 11357, subdivision (a). The trial court suspended imposition of sentence and 

placed appellant on three years formal probation. Appellant filed a notice of appeal and a 

later supplemental notice of appeal based, in part, on matters that occurred after his guilty 

plea.

At both the time of appellant's guilty plea and the trial court's order placing him on 

formal probation, violation of Health and Safety Code section 11357, subdivision (a),

could be treated as a misdemeanor or a felony. On November 4, 2014, the voters 

approved Proposition 47, the "Safe Neighborhoods and Schools Act." Among other 

matters, Proposition 47 makes violation of Health and Safety Code section 11357, 

subdivision (a), a misdemeanor, unless, because of the defendant's prior conviction of a 

so-called "super strike" offense (Pen. Code, § 667, subd. (e)(2)(C)(iv)), or an offense

which requires registration as a sex offender (Pen. Code, § 290), felony sentencing is 

required. Proposition 47 sets forth specific procedures by which those who are serving, 

or have completed, felony sentences for violation of enumerated drug and theft crimes, 

may have their convictions reduced to misdemeanors.

On appeal, appellant asks that we determine as a matter of law that his conviction 

is a misdemeanor and that we remand his case for resentencing. We decline to do so. 

Although, because the predicates to felony sentencing under Proposition 47 do not appear 

in the record and therefore it is quite likely that misdemeanor sentencing will be ordered 

by the trial court upon petition by appellant, the terms of Proposition 47 do not permit us 

to provide that relief on direct appeal.
3

FACTUAL AND PROCEDURAL BACKGROUND

On April 8, 2014, after appellant and an undercover police officer engaged in a 

conversation near the seawall at the end of 5000 Newport Avenue in Ocean Beach, 

appellant placed a small plastic bag of marijuana under a skateboard. The officer 

retrieved the plastic bag and left $40 in marked currency under the skateboard. 

Thereafter appellant was arrested and found in possession of the marked $40. Appellant

was charged in a felony complaint with one count of selling marijuana in violation of 

Health and Safety Code section 11360, subdivision (a).

At his jury trial, appellant contested the undercover officer's description of the 

circumstances surrounding their encounter and the jury was unable to reach a verdict. 

The trial court declared a mistrial.

On September 23, 2014, pursuant to an agreement between the parties: the district 

attorney added a second count to the complaint, which alleged appellant had possession 

of concentrated marijuana in violation of Health and Safety Code section 11357, 

subdivision (a); appellant pled guilty to the added count; in exchange for appellant's 

guilty plea, the district attorney agreed the sales count could be dismissed. In the course 

of taking appellant's plea, the trial court advised appellant he was pleading guilty to a 

felony, that if probation was revoked and appellant was sent to prison, the instant

conviction would be treated as a "prison prior." The trial court further advised appellant 

that as a consequence of his plea, appellant could not possess a firearm.

On October 21, 2014, the trial court suspended imposition of sentence on appellant 

and instead placed appellant on three years of formal probation.
4

On November 4, 2014, the voters adopted Proposition 47.

On November 26, 2014, appellant filed a notice of appeal with a request for a 

certificate of probable cause, which was denied. On December 12, 2014, appellant filed a 

supplemental notice of appeal based in part on matters occurring after his guilty plea.

DISCUSSION

As we indicated at the outset, on appeal appellant only seeks relief under 

Proposition 47. As we have indicated, such relief is not available on his appeal.

I

Although not addressed by the parties, we briefly take up the questions of whether 

appellant's case and conviction involve a felony or a misdemeanor. The answers to these 

questions in turn are dispositive with respect to our jurisdiction over his appeal and the 

availability, either here or in the trial court, of relief under Proposition 47.

A. Jurisdiction

Generally we have jurisdiction over appeals from felony cases; we have no 

appellate jurisdiction over appeals in misdemeanor cases. (People v. Nickerson (2005) 

128 Cal.App.4th 33, 36.) Here, as we have noted, appellant was initially charged with a 

felony violation of section Health and Safety Code section 11360, and later charged with 

violation of Health and Safety Code section 11357, subdivision (a). For purposes of our 

appellate jurisdiction, where, as here, a case was initiated as a felony, it is considered a 

felony "case" and we have jurisdiction over any direct appeal. (See Cal. Rules of Court, 

rule 8.304(a); People v. Lynall (2015) 233 Cal.App.4th 1102, 1111.)
5

B. Availability of Relief Under Section 47

In its broadest terms, Proposition 47 reduced to misdemeanors enumerated drug 

and theft offenses, which had either been felonies or so-called wobblers, that is, offenses 

which may be treated as either a felony or a misdemeanor. As we have noted, at the time 

of appellant's offense and at the time he was placed on probation, violation of Health and

Safety Code section 11375, subdivision (a) was a wobbler. Only if appellant was 

convicted of a felony does Proposition 47 provide him with any relief; if he was 

convicted of a misdemeanor, appellant has been provided all the relief available under 

Proposition 47.

"When a defendant is convicted . . . of a wobbler . . . his or her offense is 'deemed

a felony' unless subsequently 'reduced to a misdemeanor by the sentencing court'

pursuant to [Penal Code] section 17, subdivision (b)."1 (People v. Feyrer (2010) 48 

Cal.4th 426, 438-439.)

 

1 Penal Code section 17, subdivision (b), states: "(b) When a crime is punishable, in 

the discretion of the court, either by imprisonment in the state prison or imprisonment in 

a county jail under the provisions of subdivision (h) of [Health and Safety Code] [s]ection 

1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes 

under the following circumstances:

"(1) After a judgment imposing a punishment other than imprisonment in the state 

prison or imprisonment in a county jail under the provisions of subdivision (h) of [Health 

and Safety Code] [s]ection 1170.

"(2) When the court, upon committing the defendant to the Division of Juvenile 

Justice, designates the offense to be a misdemeanor.

"(3) When the court grants probation to a defendant without imposition of 

sentence and at the time of granting probation, or on application of the defendant or 

probation officer thereafter, the court declares the offense to be a misdemeanor.

"(4) When the prosecuting attorney files in a court having jurisdiction over 

misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless 
6

Here, the trial court did not, under Penal Code section 17, subdivision (b), find that 

appellant's violation of Health and Safety Code section 11375, subdivision (b) was a 

misdemeanor. Indeed its remarks at the time of appellant's plea indicate quite clearly that 

it believed appellant was pleading to a felony. Accordingly, we must treat his conviction 

as a felony, for which relief under Proposition 47 is available.

II

This brings us to the parties' principal dispute: whether we have power to provide 

appellant relief under Proposition 47 on appeal or whether he must seek such relief in the 

trial court. This question was discussed by the court recently in People v. Shabazz (2015)

237 Cal.App.4th 303 (Shabazz). Like the court in Shabazz, we conclude that on this 

record we do not have the power to provide Proposition 47 relief on appeal.

A. Proposition 47

On November 4, 2014, after appellant was sentenced, the voters approved 

Proposition 47. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The 

initiative: added Gov. Code Chapter 33 (§ 7599 et seq., the "Safe Neighborhoods and 

Schools Fund"); added §§ 459.5, 490.2 and 1170.18; amended §§ 473, 476a, 496 and 

666; and amended Health and Safety Code sections 11350, 11357 and 11377. (Ballot 

Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) The stated 

 

the defendant at the time of his or her arraignment or plea objects to the offense being 

made a misdemeanor, in which event the complaint shall be amended to charge the 

felony and the case shall proceed on the felony complaint.

"(5) When, at or before the preliminary examination or prior to filing an order 

pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in 

which event the case shall proceed as if the defendant had been arraigned on a 

misdemeanor complaint."
7

purpose and intent of the proposition was to: "(1) Ensure that people convicted of 

murder, rape, and child molestation will not benefit from this act. [¶] (2) Create the Safe 

Neighborhoods and Schools Fund . . . for crime prevention and support programs in K-12 

schools . . . for trauma recovery services for crime victims, and . . . for mental health and 

substance abuse treatment programs to reduce recidivism of people in the justice system. 

[¶] (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like 

petty theft and drug possession, unless the defendant has prior convictions for specified 

violent or serious crimes. [¶] (4) Authorize consideration of resentencing for anyone who 

is currently serving a sentence for any of the offenses listed herein that are now 

misdemeanors. [¶] (5) Require a thorough review of criminal history and risk assessment 

of any individuals before resentencing to ensure that they do not pose a risk to public 

safety. [¶] (6) [And to] save significant state corrections dollars on an annual

basis[ ] . . . [and] increase investments in programs that reduce crime and improve public 

safety, such as prevention programs in K-12 schools, victim services, and mental health 

and drug treatment, which will reduce future expenditures for corrections." (Ballot 

Pamp., supra, text of Prop. 47, § 3, p. 70.)

In particular Proposition 47 made certain drug and theft offenses misdemeanors 

instead of felonies or wobblers. (Ballot Pamp., supra, text of Prop. 47, §§ 5-13, pp. 71-

73.) Except under circumstances we will discuss, possession of concentrated marijuana 

is now a misdemeanor. (Health & Saf. Code, § 11357, subd. (a).) As we noted at the 

outset, under Proposition 47 two circumstances may prevent application of its new lesser 

misdemeanor sentences: first, misdemeanor sentencing is not available if the defendant 
8

has sustained a prior conviction for any of the violent or serious felonies listed in Penal 

Code section 667, subdivision (e)(2)(C)(iv); second, misdemeanor sentencing is 

foreclosed when a defendant has previously sustained a conviction for an offense 

requiring sex offender registration under Penal Code section 290, subdivision (c). (Ballot 

Pamp., supra, text of Prop. 47, §§ 9, 13, 14; § 1170.18, subd. (i).)

Where an accused is, or was, convicted of violating Health and Safety Code 

section 11357, subdivision (a), or any of the other offenses enumerated in Proposition 47 

after its effective date, unless the accused has a disqualifying prior conviction, he or she 

may only be convicted of a misdemeanor. Where an accused was convicted before

adoption of Proposition 47, the voters provided in Health and Safety Code section 

1170.18, specific processes for retroactive application of the initiative's mitigating 

sentencing provisions: When a defendant is currently serving a felony sentence for one 

of the offenses enumerated in Proposition 47, the defendant may "petition for a recall of 

sentence before the trial court that entered the judgment of conviction in his or her case to 

request resentencing in accordance" with the lesser sentence provided by the initiative.

(Health & Saf. Code, § 1170.18, subd. (a).)

On the other hand, if a defendant has completed his or her sentence for an eligible 

conviction, he or she must file an application in the trial court. (Health & Saf. Code,

§ 1170.18, subd. (a).) If the application satisfies the criteria for reduction, "the court shall 

designate the felony offense or offenses as a misdemeanor." (Id., subd. (g).) Unless the 

defendant requests otherwise, no hearing is necessary in order to rule upon the 

application filed under subdivision (f). (Id., subd. (h).)
9

B. Shabazz

In Shabazz, although the defendant's appeal from his felony theft and 

methamphetamine convictions was pending at the time Proposition 47 was adopted, he 

had completed his concurrent sentence on those convictions. He argued that on appeal 

the Court of Appeal was required to reduce his convictions to misdemeanors. In rejecting 

the defendant's argument, the court stated:

"The question arises, then, whether Proposition 47 applies retroactively so that we 

must reduce defendant's convictions from felonies to misdemeanors. Stated differently, 

the issue is whether the electorate intended the amendatory provisions of Proposition 

47—reducing defendant's crimes from felonies to misdemeanors—to be automatically 

applied on appeal. As our Supreme Court held in [In re] Estrada (1965) 63 Cal.2d [740] 

at page 744, [(Estrada)] whether the amendatory initiative lessening punishment applies 

retroactively is a question of legislative, or, in our case, voter intent. And our Supreme 

Court reaffirmed in In re Pedro T. [(1994)] 8 Cal.4th [1041] at page 1045, 'The basis of 

our decision in Estrada was our quest for legislative intent.' Further, in People v. 

Nasalga, [(1996)] 12 Cal.4th [(784)] at page 792, our Supreme Court stated: 'To 

ascertain whether a statute should be applied retroactively, legislative intent is the 

"paramount" consideration[.]' If the Legislature has expressly stated its intent in a saving 

clause—for example, 'shall be applied prospectively'—that intent controls. [Citations.]

Absent an express saving clause, we must look for any other indications of the electors'

intent. As our Supreme Court noted in Estrada, supra, 63 Cal.2d at page 744: 'The 

problem, of course, is one of trying to ascertain the legislative intent—did the Legislature 
10

intend the old or new statute to apply? Had the Legislature expressly stated which statute 

should apply, its determination, either way, would have been legal and constitutional. It 

has not done so. We must, therefore, attempt to determine the legislative intent from 

other factors.' [Citation.]

"To resolve this very specific retroactivity question, we apply the well-settled 

rules governing interpretation of voter intent: ' "In interpreting a voter initiative . . . , we 

apply the same principles that govern statutory construction. [Citation.] Thus, . . . 'we 

turn first to the language of the statute, giving the words their ordinary meaning.'

[Citation.] . . . The statutory language must also be construed in the context of the statute 

as a whole and the overall statutory scheme [in light of the electorate's intent].

[Citation.] . . . 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.]' [Citations.]

"Proposition 47 does not contain an express saving clause. It does not refer to a 

person, like defendant, who has been convicted and sentenced but whose appeal is 

pending. But it does expressly, specifically and clearly address the application of the 

reduced punishment provisions to convicted felons who were sentenced or placed on 

probation prior to Proposition 47's effective date. And it does so without regard to the 

finality of the judgment. Defendant, of course, falls under [Health and Safety Code] 

section 1170.18, subdivision (f). Defendant has completed his sentence. And he 

potentially would have been guilty of misdemeanors had Proposition 47 been in effect at 
11

the time he committed his offenses (assuming he does not have a disqualifying prior 

conviction.) The plain meaning of the language in [Health and Safety Code] section 

1170.18 is this—the voters never intended that Proposition 47 would automatically apply 

to allow us to reduce defendant's two felonies to misdemeanors. Rather, the voters set 

forth specific procedures for securing the lesser punishment to eligible persons such as 

defendant. These are the sole remedies available under Proposition 47 for an accused 

sentenced prior to its effective date. For a convicted felon who has served his or her 

sentence, the electors specified an application must be filed pursuant to [Health and 

Safety Code] section 1170.18, subdivision (f). [Health and Safety Code] [s]ection 

1170.18, subdivision (f), requires that an application be filed and resolved in the trial 

court. In other words, Proposition 47 does not apply retroactively so as to permit us to 

modify the judgment and then direct that, upon remittitur issuance, defendants'

convictions be designated misdemeanors. Defendant is limited to the statutory remedy set 

forth in [Health and Safety Code] section 1170.18, subdivision (f). He must file an 

application in the trial court to have his felony convictions designated misdemeanors."

C. Analysis

We agree with the court in Shabazz. In light of the fact that provisions of 

Proposition 47 set forth specific trial court procedures available to defendants seeking the 

reduction of sentences imposed before the initiative was approved, it is clear voters did 

not intend that we order such reduction on appeal. In this regard we note that the 

reduction in sentencing provided by Proposition 47 is not unconditional, and that the trial 

court is in a much better position to resolve any disputes with respect to whether a 
12

particular defendant is entitled to a sentence reduction. The relief provided by 

Proposition 47 is clearly distinguishable from the unconditional sentence reduction 

considered in Estrada.

Although it appears from the record here that appellant does not have any prior 

conviction that would disqualify him from relief under Proposition 47, he must seek relief 

from his felony conviction in the trial court.2

DISPOSITION

The judgment of conviction is affirmed.

BENKE, Acting P. J.

I CONCUR:

HUFFMAN, J.

I CONCUR IN THE RESULT:

HALLER, J.

 

2 Our judgment is of course without prejudice to relief available to appellant in the 

trial court under Health and Safety Code section 1170.18.