People v. Bastidas

• Decision Date: 13 January 2017
• Docket Number: A146431
• Citation: 212 Cal.Rptr.3d 716,7 Cal.App.5th 591
• Parties: The PEOPLE, Plaintiff and Respondent, v. Franklin BASTIDAS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

7 Cal.App.5th 591

212 Cal.Rptr.3d 716

The PEOPLE, Plaintiff and Respondent,

v.Franklin BASTIDAS, Defendant and Appellant.

A146431

Court of Appeal, First District, Division 5, California.

Filed January 13, 2017

Brendon D. Woods, State Public Defender, and Michael S. McCormick, Assistant Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Michael P. Rhoads, and Amit Kurlekar, Deputy Attorneys General, for Plaintiff and Respondent.

SIMONS, J.

Proposition 47, the Safe Neighborhoods and Schools Act, enacted in 2014, reduced certain offenses that could be charged as either felonies or misdemeanors to misdemeanors. And, in newly enacted Penal Code section 1170.18, subdivision (a),¹ the Proposition authorized persons "currently serving a sentence" for a felony conviction for such crimes to petition for resentencing. However, those resentenced individuals are still subject to a ban on possessing a firearm. (§ 1170.18, subd. (k).)

Prior to the enactment of Proposition 47, appellant Franklin Bastidas had entered a plea of no contest to a felony charge of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (b) ), one of the offenses covered by Proposition 47. Imposition of sentence was suspended, and appellant was placed on felony probation for a period of five years. In 2015, the District Attorney petitioned for revocation of probation, and appellant requested that his conviction be reduced to a misdemeanor. To avoid the restriction on firearm possession, appellant argued he was not "currently serving a sentence" under section 1170.18, and he was entitled to the reduction of his conviction to a misdemeanor pursuant to In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada ). Estrada held that, in the absence of contrary legislative intent, statutory amendments mitigating criminal punishment are to be applied retroactively. The trial court rejected appellant's contention but granted appellant's subsequent petition under section 1170.18, subdivision (a). The court reduced appellant's conviction to a misdemeanor and terminated probation.

On appeal, appellant contends he was entitled to resentencing under Estrada and should, therefore, be free from the prohibition on firearms possession. We agree with our colleagues in Division One who rejected the same contention in People v. Davis (2016) 246 Cal.App.4th 127, 200 Cal.Rptr.3d 642, review granted July 13, 2016, S234324 (Davis ). (See Cal. Rules of Court, Rule 8.1105(e)(1)(B).)²

BACKGROUND

Appellant was charged by information with possession of cocaine base for sale (Health & Saf. Code, § 11351.5 ; count one) and possession of heroin for sale (Health & Saf. Code, § 11351 ; count two). In September 2013, pursuant to a plea bargain, appellant entered a plea of no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (b) ) as a lesser included offense to count two, and count one was dismissed. Imposition of sentence was suspended and appellant was placed on probation for five years.

In September 2015, the District Attorney filed a petition to revoke probation following appellant's arrest for possession of controlled substances and paraphernalia. Appellant requested that the trial court reduce the level of the underlying conviction from a felony to a misdemeanor pursuant to Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, arguing that the resentencing provisions in section 1170.18 did not apply because he had not been sentenced to prison. The trial court denied the request.

Subsequently, appellant petitioned for reduction of the felony conviction to a misdemeanor pursuant to section 1170.18. Above appellant's signature on the petition the following sentence appears: "By signing below, defendant acknowledges that s/he understands that s/he may not use, own or possess firearms, even if this Petition is granted." The trial court granted the petition and designated the conviction as a misdemeanor. Appellant admitted the probation violation and probation was terminated.

This appeal followed.

DISCUSSION

Appellant contends he was entitled to have his conviction reduced to a misdemeanor under Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, which "established an exception to the general rule that no part of the Penal Code is retroactive." (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195, 171 Cal.Rptr.3d 234, 324 P.3d 88, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216, 200 Cal.Rptr.3d 265, 367 P.3d 649.) Under Estrada , "where [an] amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Estrada , at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948.) Appellant argues he was entitled under Estrada to retroactive application of Proposition 47 and, therefore, should not be prohibited from possessing firearms under section 1170.18, subdivision (k).

Appellant's argument turns on his claim that, because he was on probation with imposition of sentence suspended, he was not "serving a sentence" for purposes of section 1170.18, subdivision (a). Because we conclude persons on probation are "serving a sentence" for purposes of the statute, we affirm the trial court's order.

I. Proposition 47

The voters enacted Proposition 47 on November 4, 2014.

(People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 183 Cal.Rptr.3d 362.) Proposition 47 made "certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (Id. at p. 1091, 183 Cal.Rptr.3d 362.) As relevant here, Proposition 47 amended Health and Safety Code section 11350 ; previously, possession of the controlled substances referenced in subdivision (a) was a felony and possession of the controlled substances referenced in subdivision (b) was a wobbler. (Health & Saf. Code, former § 11350, subds. (a), (b) ; see also Rivera , at p. 1092, 183 Cal.Rptr.3d 362.) As amended by Proposition 47, a violation of Health and Safety Code section 11350 is now a misdemeanor, "unless the defendant ‘has one or more prior convictions' for an offense specified in section 667, subdivision (e)(2)(C)(iv)—which lists serious and violent felonies that are sometimes referred to as ‘ "super strike" offenses'—or for an offense that requires the defendant to register as a sex offender under section 290, subdivision (c)." (Rivera , at p. 1092, 183 Cal.Rptr.3d 362.)

Proposition 47 also enacted a resentencing provision, codified at section 1170.18, which provides in subdivision (a): "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense 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 statutes amended or added by Proposition 47. If the petitioner meets the criteria in subdivision (a) of section 1170.18, the 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." (§ 1170.18, subd. (b).) A petitioner resentenced as a misdemeanant "shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole." (§ 1170.18, subd. (d).)

Section 1170.18, subdivision (f) extends the benefits of Proposition 47 to persons who have completed their sentences. Thus, the statute states, "A person who has completed his or her sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) Under section 1170.18, subdivision (g), upon receipt of a qualifying application, a court is required to "designate the felony offense or offenses as a misdemeanor."

Section 1170.18, subdivision (j), requires that any petition or application under section 1170.18 be filed within three years, absent a showing of good cause.

As relevant to appellant's claim on appeal, Proposition 47 provides that the prohibition on firearm possession by felons continues to apply to persons benefitting from the enactment's resentencing and re-designation procedures. Thus, section 1170.18, subdivision (k) provides, "[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."³

According to Proposition 47's "Findings and Declarations," the purpose of the enactment was "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 in K–12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of...