People v. Casillas, F071951

• Decision Date: 26 July 2017
• Docket Number: F071951
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Omar CASILLAS, Defendant and Appellant.

13 Cal.App.5th 745

221 Cal.Rptr.3d 181

The PEOPLE, Plaintiff and Respondent,

v.Omar CASILLAS, Defendant and Appellant.

F071951

Court of Appeal, Fifth District, California.

Filed July 26, 2017

Sylvia W. Beckham, Carpinteria, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini, and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P.J.Defendant Omar Casillas appeals from a postjudgment order denying his 2015 petition to reduce a 2006 felony conviction to a misdemeanor conviction pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47 or the Act). The trial court denied the petition on the grounds that he had been convicted of a "super strike" offense in 2013. Defendant contends the order must be reversed because the 2013 conviction does not constitute a "prior" conviction within the meaning of Proposition 47. We disagree and affirm the order.

BACKGROUND

In 2006, defendant pled nolo contendere to felony possession of a controlled substance ( Health & Saf. Code, § 11377, former subd. (a))¹ and admitted he served a prior prison term ( Pen. Code,² § 667.5, subd. (b) ). After being placed on probation, and then violating that probation, defendant received a sentence of three years. He purportedly completed that sentence.

On August 27, 2013, defendant was convicted of attempted murder (§§ 187, subd. (a), 664); false imprisonment (§ 236); assault with a semiautomatic firearm (§ 245, subd. (b)); unlawful possession of a firearm (§ 29800, subd. (a)(1)); and unlawful possession of ammunition (§ 30305, subd. (a)(1)). In connection with the attempted murder, the jury found true the allegation he personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).) On October 25, 2013, defendant received an aggregate sentence of 29 years.³

Proposition 47 was approved by the voters on November 4, 2014, and became effective the next day. ( People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256, 201 Cal.Rptr.3d 431 ; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108, 183 Cal.Rptr.3d 129 ; see Cal. Const., art. II, § 10, subd. (a).) The Act reduced certain drug- and theft-related offenses that had previously been designated as either felonies or wobblers to straight misdemeanors. It amended, inter alia, Health and Safety Code section 11377. ( People v. Lynall , supra , at pp. 1108-1109, 183 Cal.Rptr.3d 129.) Now, possession of a controlled substance "shall be punished by imprisonment in a county jail for a period of not more than one year" ( Health & Saf. Code, § 11377, subd. (a) ) "unless the perpetrator has one or more prior convictions for so-called super strike offenses (the offenses listed in § 667, subd. (e)(2)(C)(iv))^{[4 ]}" ( People v. Bradshaw , supra , at p. 1256, 201 Cal.Rptr.3d 431 ; accord, Health & Saf. Code, § 11377, subd. (a) ). The Act also added section 1170.18, which "allow[s] certain convicted felons to petition the court to have their felony convictions designated as misdemeanors and their penalties reduced." ( People v. Walker (2016) 5 Cal.App.5th 872, 875, 210 Cal.Rptr.3d 202 ( Walker ).) Section 1170.18 reads in pertinent part:

"(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this [A]ct had this [A]ct 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.

"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor. [¶] ... [¶]

"(i) The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in ... [s]ection 667 [, subd. (e)(2)(C)(iv) ]...."

On May 29, 2015, defendant filed a petition to reduce his 2006 felony drug conviction to a misdemeanor conviction pursuant to section 1170.18, subdivision (f). On June 15, 2015, the trial court denied his petition on the grounds that he had been convicted of a super strike offense, i.e., attempted murder, in 2013. (See ante , fn. 4.)

DISCUSSION

I. Standard of review.

"When we interpret an initiative, we apply 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 ambiguous, 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 that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)

Matters of statutory interpretation are questions of law subject to de novo review. ( Walker , supra , 5 Cal.App.5th at p. 876, 210 Cal.Rptr.3d 202 ; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1388, 203 Cal.Rptr.3d 228 ( Montgomery ); People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1183, 202 Cal.Rptr.3d 525 ( Zamarripa ).)

II. Section 1170.18, subdivision (i) disqualifies a person who has suffered a super strike conviction any time before the trial court rules on his or her reclassification petition.

There is no dispute that (1) a jury convicted defendant of attempted murder, inter alia, in 2013; (2) attempted murder is a disqualifying super strike offense; and (3) defendant sought reclassification of his 2006 felony drug conviction in 2015. The question is what "prior" in section 1170.18, subdivision (i)'s "prior conviction" means: in other words, " '[p]rior to what?' " ( Montgomery , supra , 247 Cal.App.4th at p. 1387, 203 Cal.Rptr.3d 228.) Whereas defendant urges us to adopt an interpretation that only "exclude [s] those defendants who have any super strike conviction which predates the ... offense for which relief is sought," the Attorney General maintains a " 'prior' conviction is any conviction occurring before the trial court rules on a petition for re[lief]."

In common parlance, "prior" means "[p]receding in time or order." (American Heritage Dict. (3d college ed. 2000) p. 1088; accord, Black's Law. Dict. (9th ed. 2009) p. 1313.) Exactly what is being preceded in time or order depends on context. For example, it is clear that the phrase "prior conviction" in Health and Safety Code section 11377, subdivision (a), refers to a super strike conviction that precedes a violation under the subdivision:

"[E]very person who possesses any controlled substance ... shall be punished by 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 [s]ection 1170 ... if that person has one or more prior convictions for an offense specified in ... [s]ection 667[, subdivision (e)(2)(C)(iv) ]...."

By contrast, section 1170.18, subdivision (i) positions "prior conviction" relative to the nonspecific datum "[t]he provisions of this section." (See ante , at p. 184; see also Zamarripa , supra , 247 Cal.App.4th at p. 1184, 202 Cal.Rptr.3d 525 ["Nothing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought."].) Thus, we examine these provisions for guidance.

Section 1170.18 sets forth two relief procedures: (1) for persons currently serving a felony sentence for an offense that is now a misdemeanor under Proposition 47, a petition for recall and resentencing (§ 1170.18, subds. (a)-(b)); and (2) for persons who have completed a felony sentence for an offense that is now a misdemeanor under Proposition 47, a petition for reclassification (§ 1170.18, subds. (f)-(h)). Those with "prior" super strike convictions are disqualified from applying. (Id. , subd. (i).) Because "[t]he provisions of this section" are predominantly concerned with these relief procedures, one could rationally argue a "prior conviction" under section 1170.18, subdivision (i) refers to a super strike conviction that occurs before one avails himself or herself of these procedures. (See Zamarripa , supra , 247 Cal.App.4th at p. 1184, 202 Cal.Rptr.3d 525 ["The plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense."]; see also People v. Youngblood (2001) 91 Cal.App.4th 66, 71, 109 Cal.Rptr.2d 776 ["We must interpret a statute consistently with the meaning derived from its grammatical structure."].) At the same time, another could rationally argue Health and Safety Code section 11377, subdivision (a)'s definition should control, given Proposition 47 amended that statute. (See ante , at p. 184; see also People v. Woodhead (1987) 43 Cal.3d 1002, 1009, 239 Cal.Rptr. 656, 741 P.2d 154 ["A statute must be construed 'in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.' "].)

Because section 1170.18, subdivision (i)'s "prior conviction" is "capable of two constructions, both of which are reasonable" ( Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776, 72 Cal.Rptr.2d 624, 952 P.2d 641 ), the phrase is ambiguous ( ibid. ). (See Montgomery , supra , 247 Cal.App.4th at p. 1389, 203 Cal.Rptr.3d 228 ["In light of the about-face on this issue in the Proposition 47 materials prepared for judges and practitioners, we think it reasonable to conclude that the term 'prior conviction' is ambiguous."].) "To...