People v. DeHoyos
People v. DeHoyos
Opinion
*688 *597 Approved by voters in 2014, Proposition 47 ("The Safe Neighborhoods and Schools Act" (Proposition 47) ) reduces many common theft-and drug-related offenses from felonies to misdemeanors for offenders who do not have prior convictions for specified violent or serious offenses. The measure also permits eligible defendants who were serving felony sentences as of Proposition 47's effective date to obtain the benefit of these changes by petitioning for resentencing. ( Pen. Code, § 1170.18, subd. (a), as amended by Stats. 2016, ch. 767, § 1, p. 5313.) A court must grant a resentencing petition unless the court determines that resentencing the defendant "would pose an unreasonable risk of danger to public safety." ( Pen. Code, § 1170.18, subd. (b).)
The question before us concerns the application of these provisions to defendants who were serving felony sentences on the measure's effective date but whose judgments were on appeal and thus not yet final. Are such defendants entitled to automatic resentencing under Proposition 47, or must they instead seek resentencing through the statutory resentencing procedure, including the risk assessment prescribed by Penal Code section 1170.18, subdivision (b) ? We conclude that resentencing is available to such defendants only in accordance with the statutory resentencing procedure in Penal Code section 1170.18 ( section 1170.18 ).
I.
A.
Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure's stated purpose 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," while also ensuring "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 Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender's criminal history. The redefined offenses include: shoplifting of property worth $950 or less ( Pen. Code, § 459.5, subd. (a) ); forgery of instruments worth $950 or less ( Pen. Code, § 473, subd. (b) ); fraud involving financial instruments worth $950 or less ( Pen. Code, § 476a, subd. (b) ); theft of, or receiving, property worth $950 or less ( Pen. Code, §§ 490.2, subd. (a),
*598
496, subd. (a) ); petty
*689
theft with a prior theft-related conviction ( Pen. Code, § 666, subd. (a) ); and possession of a controlled substance ( Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a) ). While these offenses are now misdemeanors by default, they remain felonies for offenders who have previously been convicted of certain serious or violent crimes colloquially known as "super strikes" (see Pen. Code, § 667, subd. (e)(2)(C)(iv)(I)-(VIII) ; see also
People v. Valencia
(2017)
Proposition 47 also includes two sets of detailed provisions setting out the terms under which retrospective relief is available to persons who were serving, or who had already completed, felony sentences for offenses now redefined as misdemeanors. This case concerns the first of these retrospective provisions, which provides: "A person who, on November 5, 2014, was serving a sentence for a conviction ... of a felony ... who would have been guilty of a misdemeanor under the act that added this section ... 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 new misdemeanor penalty provisions. ( § 1170.18, subd. (a), as amended by Stats. 2016, ch. 767, § 1, p. 5313, eff. Jan. 1, 2017.) Petitions for recall were initially to be filed within a three-year window, absent a showing of good cause; the Legislature has since extended that window to November 4, 2022. ( § 1170.18, subd. (j), as amended by Stats. 2016, ch. 767, § 1, p. 5314, eff. Jan. 1, 2017.) 2
Only defendants who do not have disqualifying prior convictions may file petitions for recall of sentence. ( § 1170.18, subds. (a), (i).) If the statutory requirements are satisfied, "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).) For these purposes, " 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a" super strike or crime requiring sex offender *599 registration. ( Id. , subd. (c).) In making this determination, "the court may consider" the petitioner's "criminal conviction history," "disciplinary record and record of rehabilitation while incarcerated," and "[a]ny other evidence" the court "determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." ( Id. , subd. (b), (b)(1)-(3).)
Proposition 47 also provides a path to relief for persons who have already completed *690 a sentence for a covered offense: Such a person "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).) Like recall petitions, such applications must be filed by November 4, 2022, absent good cause to file at a later date. ( Id. , subd. (j), as amended by Stats. 2016, ch. 767, § 1, p. 5314, eff. Jan. 1, 2017.) As is true of Proposition 47's other provisions for reducing a felony to a misdemeanor, no relief is available to a person who has previously been convicted of a super strike or an offense requiring registration as a sex offender. ( § 1170.18, subd. (i).) If such an applicant satisfies the statutory requirements, the court must designate the felony offense as a misdemeanor. ( Id. , subd. (g).) No hearing is required unless the applicant asks for one. ( Id. , subd. (h).)
B.
In December 2013, police officers arrested defendant Veronica Lorraine DeHoyos for possessing methamphetamine, a controlled substance. At that time, the offense was punishable as a felony by former section 11377 of the Health and Safety Code (Stats. 2011, ch. 15, § 171, p. 325, and subsequently amended).
**371 In April 2014, a jury found defendant guilty of violating former section 11377, subdivision (a), and the San Diego Superior Court suspended imposition of sentence and granted formal probation for three years. 3
*600 Defendant appealed. On appeal, defendant invoked the then-newly enacted provisions of Proposition 47. As noted, the measure redefined possession of a controlled substance as a misdemeanor except for offenders who have disqualifying prior convictions. ( Health & Saf. Code, § 11377, subd. (a), as amended by Prop. 47, § 13.) Noting that the record established no disqualifying prior convictions, defendant argued that the Court of Appeal should reduce her conviction to a misdemeanor and remand for resentencing without following the procedures set out in section 1170.18. The Court of Appeal rejected her argument and affirmed the judgment. "[T]o be considered for resentencing," the court held, defendant "must utilize the [statutory] procedure...."
II.
The question before us is how Proposition 47 applies to those who, like defendant, had been sentenced for a covered offense before November 5, 2014, but whose judgments were not yet final on that date, and whose sentences have not yet been completed. The Attorney General contends that resentencing is available exclusively *691 under section 1170.18, which conditions relief on the court's assessment of "whether a new sentence would result in an unreasonable risk of danger to public safety." ( Id. , subd. (b)(3).) Defendant, on the other hand, argues that the reviewing court should reduce her offense to a misdemeanor and remand the case for resentencing without the statutory risk assessment.
Defendant's argument relies on the principle articulated in
In re Estrada
(1965)
*601
In the decades since
Estrada
was decided, we have clarified that the absence of an express savings clause does not necessarily
**372
resolve the question whether a lawmaking body intended a statute reducing punishment to apply retrospectively. "[W]hile such express statements unquestionably suffice to override the
Estrada
presumption," we have explained, "the 'absence of an express saving clause ... does not end "our quest for legislative intent." ' " (
People v. Conley
(2016)
Proposition 47 contains no express savings clause. It does, however, address the question of retrospective application in conspicuous detail. Separate provisions articulate the conditions under which the new misdemeanor penalty provisions apply to completed sentences ( § 1170.18, subds. (f) - (j) ), sentences still being served ( id. , subds. (a)-(e) ), and sentences yet to be imposed ( Pen. Code, §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (a) ; Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a) ). The question is whether these provisions *692 sufficiently demonstrate the electorate's intent concerning whether defendants who were sentenced before Proposition 47's effective date, but whose judgments were not yet final, are entitled to automatic resentencing, or must instead petition for resentencing under section 1170.18.
We considered a similar question in
Conley
,
supra
,
The issue in
Conley
,
supra
,
First, we explained, "unlike the statute at issue in
Estrada
,
supra
,
Similar considerations lead us to a similar conclusion in this case. Like the Reform Act, Proposition 47 is an ameliorative criminal law measure that is "not silent on the question of retroactivity," but instead contains a detailed set of provisions designed to extend the statute's benefits retroactively. (
Conley
,
supra
, 63 Cal.4th at p. 657,
Proposition 47, unlike the Reform Act, does not create new sentencing factors that the prosecution must "plead[ ] and prove[ ]" ( Pen. Code, § 1170.12, subd. (c)(2)(C) ) to preclude a grant of leniency. We can therefore draw no inferences from the omission of any provision addressing the application of such a pleading-and-proof requirement to individuals who have already been sentenced, as we did in
Conley
. But our conclusion is strongly reinforced by other indicia of legislative intent. In enacting Proposition 47, voters declared their purpose to "[r]equire 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." (Voter Information Guide,
supra
, text of Prop. 47, § 3(5), p. 70, italics added.) The breadth of this statement of purpose indicates an intent to apply the provisions of section 1170.18, including its risk assessment provision, to all previously sentenced defendants who had not yet completed their sentences, and not just to those whose judgments had become final on direct
**374
review. (See
People v. Canty
(2004)
Defendant raises several objections to this conclusion, but none has merit. First, she argues that section 1170.18, unlike the resentencing provision of the Reform Act, is ambiguous about whether it applies to defendants who were serving nonfinal sentences as of Proposition 47's effective date. She contends *604 that this ambiguity should be resolved in favor of concluding that such defendants are not entitled to file petitions for resentencing under section 1170.18. And if defendants are not entitled to resentencing under section 1170.18, she reasons, they must be entitled to automatic resentencing in accordance with the Estrada presumption.
This argument fails at the first step. Section 1170.18 authorizes a defendant who was "serving a sentence" for a covered offense as of November 5, 2014, to file a petition for recall of sentence. (
Id
., subd. (a).) As a matter of ordinary usage, we say that a defendant begins to serve a sentence after the sentence is imposed; the terminology does not vary depending on whether the sentence the defendant is serving has become final on direct review. (See
Conley
,
supra
, 63 Cal.4th at p. 655,
It certainly is true, as defendant says, that section 1170.18, subdivision (a)'s reference to those defendants "serving a sentence" for a covered offense operates to distinguish them from other defendants who have already completed their sentences and are therefore entitled to relief under a separate provision. ( § 1170.18, subd. (f).) But it does not follow that we can read "serving a sentence" as though it instead read "serving a
final
sentence," as defendant argues-a conclusion that would require us to insert language that Proposition 47's drafters did not see fit to include. (See
Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC
(2011)
Defendant next contends our interpretation of the Reform Act in
Conley
,
supra
,
Defendant also briefly suggests that the voters who passed the Reform Act were more concerned with public safety than the voters who passed Proposition 47; the latter group, defendant argues, placed a greater emphasis on cost savings and on the reduction of punishment for individuals with low-level felony convictions. As support for this conclusion, defendant points to cases that have observed that Proposition 47 prescribes
**375
less demanding substantive requirements for eligibility for relief than does the Reform Act. (See, e.g.,
People v. Buford
(2016)
Finally, defendant calls our attention to language in Proposition 47 intended to guide the measure's judicial interpretation. Section 1170.18 provides that "[t]his section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant." (
Id.
, subd. (m); see former § 1170.18, subd. (m), as added by Prop. 47 [similar].) Defendant asserts that one of the "rights or remedies" (
ibid.
) available to her is automatic resentencing under
Estrada
and
Kirk
. But these cases describe a presumption about legislative intent to guide our understanding of the retroactive reach of the statute; they do not establish substantive rights. (See
Conley
,
supra
, 63 Cal.4th at pp. 661-662,
III.
The judgment of the Court of Appeal is affirmed.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
NEEDHAM, J. *
Proposition 47 also redefined possession of cannabis or concentrated cannabis as a misdemeanor or felony, depending on the offender's criminal history. (See Health & Saf. Code, former § 11357, subd. (a), as amended by Prop. 47, § 12, and subsequently amended.) Subsequent amendments, however, have partly decriminalized possession of cannabis and redefined the conduct still prohibited as either an infraction or a misdemeanor. (See Health & Saf. Code, § 11357, as amended by Stats. 2017, ch. 253, § 15, pp. 2351-2352, eff. Sept. 16, 2017.)
Section 1170.18, as adopted by the voters, permitted "[a] person currently serving a sentence " to petition for recall of sentence, and required that recall petitions be filed " within three years after the effective date" of Proposition 47. (Former § 1170.18, subds. (a), (j), as added by Prop. 47, § 14, and subsequently amended (italics added).) Both provisions were later amended by the Legislature. (Stats. 2016, ch. 767, § 1, pp. 5313-5314, eff. Jan. 1, 2017.)
Neither party suggests defendant's status as a probationer, rather than a prisoner, affects the proper resolution of the question before us. Courts of Appeal to consider the issue have held, based on Proposition 47's structure, purpose, and history, that a probationer is "serving a sentence" for purposes of section 1170.18, subdivision (a). (See
People v. Bastidas
(2017)
In
People v. Valencia
,
supra
, 3 Cal.5th at page 375,
Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Reference
- Full Case Name
- The PEOPLE, Plaintiff and Respondent, v. Veronica Lorraine DEHOYOS Et Al., Defendants and Appellants.
- Cited By
- 99 cases
- Status
- Published