Opinion
F069390
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. MARGARET ALVAREZ, Defendant and Appellant.
Cecelia J. Rodriguez, 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, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F13909751)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Cecelia J. Rodriguez, 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, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Margaret Alvarez was convicted of multiple felonies for committing a home-invasion robbery and residential burglary with two other suspects. She was sentenced to eight years eight months in state prison.
On appeal, defendant argues she was improperly convicted of both greater and lesser offenses, the court should have stayed certain terms pursuant to Penal Code section 654, and the matter should be remanded for resentencing pursuant to Proposition 47. We affirm.
FACTS
In October 2013, Donna Backhaus (Backhaus) lived in a small travel trailer with her 13-year-old son, S. The trailer was parked at a trailer "ranch" or "compound" in Caruthers, California. Several other trailers were also parked there.
Backhaus testified that about two weeks before the robbery/burglary, defendant began living at the trailer park and they became acquainted. They saw each other every day. They were together on October 6, 2013, when Backhaus gave defendant a vase. Backhaus's son, testified he saw defendant once or twice. The home-invasion robbery
In the early morning hours of October 7, 2013, Backhaus and her son were asleep in their trailer. Backhaus's friend, Dave, was asleep in the bedroom with her. S.'s cousin was also staying with them that night.
Around 4:30 a.m., Backhaus woke up because her neighbor, Mary Lou, was outside and yelling that she needed to use Backhaus's cellphone. Backhaus got up, went outside, and gave her cellphone to the neighbor.
When Backhaus returned to her trailer, she saw defendant with an unknown man and woman. They were walking into Backhaus's trailer. Backhaus cursed at them and told them to get out.
Backhaus testified defendant was wearing a black stocking over her face, but it "wasn't a very good disguise" and "you could 100 percent tell who it was. All it did was flatten her nose out a little bit, that's it." Backhaus testified she had "no doubt whatsoever" about defendant's identity because she could clearly see defendant's face and teeth under the stocking. She also recognized defendant's voice because they had just spent so much time together.
Backhaus testified defendant and the other two people turned around when she yelled at them. The man walked behind Backhaus and grabbed her neck. The man's hand moved to the front of her neck, and he forced Backhaus into the trailer. Backhaus stumbled, and the man pushed her down to the trailer's floor.
Backhaus testified that defendant used both of her hands, and she held Backhaus down on the trailer's floor. Backhaus testified defendant was "in her face," looked right at her, called her by name, and told her to be calm. The man put a gun at the back of Backhaus's head. Backhaus screamed, " 'Don't kill me. Don't kill me. Please don't kill me.' " Backhaus thought she was going to die. Backhaus's son tries to attack the gunman
S., Backhaus's son, testified he woke up from his mother's screams. He saw his mother crouched down on the floor. A man was facing her. S. did not know the man had a gun. A woman was standing behind Backhaus, holding her down by the shoulders. S. testified he realized this woman was defendant, because he had previously seen her in the trailer park. Another person was going through the trailer and taking their property.
At trial, S. testified he recognized the woman was defendant at the time of the robbery. The prosecutor asked S. if he saw that same woman in the courtroom. S. testified he was not completely certain, and he was unable to identify defendant at trial. When defendant testified at trial, she admitted that she had dyed her hair and "significantly" changed her appearance compared to the time of the robbery.
S. jumped on the man, punched him, and yelled, " 'Don't kill my mom, don't kill my mom.' " Backhaus screamed, " 'S[.], he has a gun. He has a gun.' " The man turned and pointed the gun at S., and S. saw the gun. Defendant grabbed S.'s arms. One of the perpetrators pushed S. down, and he fell on a nearby bed. Backhaus screamed, " 'Please don't kill my son. Don't kill my son.' "
Backhaus and S. testified defendant grabbed Backhaus, picked her up, and threw her on top of S. Backhaus testified defendant said, " 'Shut him up or I'll kill you myself.' " S. testified defendant said, " 'You need to shut your son up or I'm going to shoot you or he [the gunman] will shoot you.' " Backhaus and S. took the threats seriously. S. testified he was very afraid. Backhaus thought that she and her son were going to watch each other get killed. Backhaus told S. to be quiet and do what they wanted. Theft of property and the bank card
Backhaus testified the gunman stood in the doorway and kept the gun pointed at her. The other woman went through the trailer and took their laptop and cellphones. Defendant took Backhaus's designer sunglasses. Backhaus testified she had just received her Social Security check and used the money to buy these items.
Backhaus testified the other woman asked her, " 'Where's the money, Donna?' " Backhaus asked, " 'What money?' " The woman said, " 'Where's your Social Security money?' " and " 'Where's the [$]33,000?' " S. testified the gunman also asked about the Social Security money. Backhaus testified that "[r]ight then I knew that this was planned ... and I knew where it was coming from."
According to the probation officer, Backhaus was disabled and received Social Security benefits, defendant and her accomplices knew this fact, and they were trying to get that money when they committed the crimes.
Backhaus told the suspects that she didn't have any money there, and all her money was in the bank. The gunman was still pointing his weapon at Backhaus and her son. Backhaus and S. testified the gunman only spoke in a whisper. The gunman asked, " 'Where's the bank? Where's the bank? Where's the bank card?' " The gunman also wanted her personal identification number (PIN) for her bank card. Backhaus turned over her bank card but gave a false four-digit code for the PIN.
The gunman whispered that there was a bank around the corner and said, " 'We're going to go there. And if that's not the right pin number, we're going to come back here, and we're going to kill you and your son.' " S. testified he was really scared for their lives. Backhaus was also frightened and believed it was a serious threat, but decided to stick to her story and did not give the valid PIN.
The three suspects left the trailer, and the gunman told them not to call the police. S. locked the door and they heard a vehicle start. Backhaus testified when she heard the vehicle, she "knew exactly what vehicle it was because that vehicle had been out there before." She believed the sound was from Margarita Rodriguez's (Rodriguez) minivan because Rodriguez frequently visited the trailer ranch and parked the van near her trailer. Backhaus also believed Rodriguez was the other woman with defendant and the gunman. Backhaus recognized the sound of the minivan's engine because "I listened to that van start up quite a few times."
After the vehicle left, Backhaus realized her friend Dave was hiding in the back bedroom during the entire incident. S.'s cousin slept through the robbery. Backhaus ran to a neighbor's trailer and called the police. Use of Backhaus's bank card
The video surveillance cameras at a Johnny Quick gas station in Easton showed that defendant and Rodriguez drove up in a maroon colored van on the morning of October 7, 2013. The store was about nine miles away from Backhaus's trailer. Rodriguez and defendant got out of the van and went into the store. They both stood in front of the store's ATM. A short time later, defendant and Rodriguez returned to the van and left the gas station.
The transaction history for Backhaus's bank card showed that two unauthorized transactions were attempted at that ATM at 5:28 a.m. and 5:29 a.m. The police determined the maroon van was registered to Rodriguez.
A few days later, law enforcement officers performed a traffic stop on Rodriguez's van. Rodriguez was the driver. The officers found two receipts in the van, which were from the ATM at the Johnny Quick store. The receipts were marked with time and date stamps that matched the two unauthorized transactions on Backhaus's bank card. The receipts were for unsuccessful attempts to withdraw money from the account.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified Backhaus's trailer was parked on her family's ranch, and defendant frequently visited the area. Defendant testified she had seen Backhaus six or seven times at the trailer ranch, but claimed she did not know her personally, they never spent any time together, and she had never met Backhaus's son.
Defendant testified Backhaus argued and fought with defendant's brother and his girlfriend, who also lived on the ranch. Defendant testified her brother had just been released after being in prison for 20 years. Defendant's brother asked her "to be there with him" that weekend, "to help him stay away from everybody" because he was "very temperamental."
Defendant testified Rodriguez was a friend of her niece. Defendant did not know her well.
Defendant testified she was on her family's property on the weekend that Backhaus was robbed, but spent the night at her daughter's house in Fresno. Around 5:00 a.m., Rodriguez called the house and said she needed gas money. Defendant asked her son-in-law to drive her to a gas station in Easton where Rodriguez was waiting. When they arrived at the gas station, Rodriguez went into the store and then told defendant that her card didn't work. Rodriguez asked defendant to go into the store with her. Defendant went inside with her, but defendant did not try to use her own card. Rodriguez said they should go to the next gas station. Defendant met her at a nearby Johnny Quick gas station, paid for the gas and bought a lottery ticket, then left with her son-in-law and returned to Fresno. Defendant testified she had a receipt, but she failed to produce it at trial.
Defendant admitted the prosecution's evidence showed her on the surveillance videotape at the Johnny Quick gas station as Rodriguez used the ATM. Defendant testified she just stood next to Rodriguez at the ATM and did not ask any questions because it was "none of my business." Defendant testified she was confused because the videotape did not show her paying for the gasoline at the store's register.
On further cross-examination, defendant suddenly declared the videotape was from the wrong gas station, and that she paid for the gas and bought the lottery ticket at a different gas station. Defendant claimed the prosecution's videotape was from the first gas station when Rodriguez tried to use the ATM, but her card did not work. Defendant testified they went to the second gas station, where defendant paid for the gasoline at the counter and bought a lottery ticket. The charges and convictions
According to the preliminary hearing evidence, defendant was arrested on October 11, 2013, and found in possession of methamphetamine. She also had acetaminophen hydrocodone pills (Vicodin) and 13 Codeine tablets; she did not have prescriptions for the controlled substances.
Defendant and Rodriguez were jointly charged with multiple felonies in this case. According to the probation report, Rodriguez pleaded no contest to home invasion robbery (Pen. Code, § 213, subd. (a)(1)(A)); first degree burglary (§§ 459/460, subd. (a)); and commercial burglary (§§ 459/460, subd. (b)). Her plea had no conditions or promises. She was sentenced to nine years eight months in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
A second amended information was filed against defendant which charged her with count I, home-invasion robbery; count II, first degree burglary; counts III and IV, criminal threats to Backhaus and S. (§ 422); count V, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); counts VI and VII, possession of Vicodin and Codeine (Health & Saf. Code, § 11350, subd. (a)); and count VIII, second degree commercial burglary of the Johnny Quick store (§ 460, subd. (b)).
On March 17, 2013, defendant pleaded no contest to the drug possession charges in counts V, VI, and VII; the parties stipulated to the preliminary hearing evidence as the factual basis for the pleas. Based on the pleas, the jury did not hear any evidence about the drugs found on defendant when she was arrested.
After a jury trial, defendant was convicted of all remaining counts.
The record is silent as to the identity of the gunman or whether anyone else was charged in this case. Sentencing hearing
On April 22, 2014, the court conducted the sentencing hearing. The court stated defendant had written a letter and admitted that she was in Backhaus's trailer during the robbery, and that she went there to make sure no one got hurt. Defendant also addressed the court. She apologized, took responsibility for everything, and asked the court for mercy.
Defendant told the probation officer that she was in Backhaus's trailer that night. Defendant said that she had been partying for two days with her brother and his ex-girlfriend at the trailer ranch. The ex-girlfriend "pumped up the group to get money from the victim." Defendant said she did not know the "dude" with the gun, but "felt she had to go into the trailer to stop him from killing everyone." Defendant claimed she did not take anything and left as soon as possible. Defendant said she knew the name of the gunman but apparently declined to disclose it.
The court noted that that the probation report stated that Backhaus was disabled, but the court did not recall any evidence about a disability when Backhaus testified. The probation officer explained that Backhaus was not in a wheelchair, but she had a disability, she received Social Security benefits because of that disability, the suspects knew these facts, and they were trying to get that money when they committed the crimes. The court recalled that Backhaus testified she had just received a Social Security check in the mail at the time of the robbery.
Defense counsel requested probation because defendant did not have any felony convictions; she only had a misdemeanor conviction for receiving stolen property; there were mitigating circumstances; she had taken responsibility; and she should be placed in a drug treatment program.
The prosecutor asked for the aggravated term for robbery plus consecutive sentences for a total of 11 years because defendant acted in concert with an individual who was armed with a gun, and she acted against a vulnerable victim and a child. The prosecutor asserted it "strains credibility" for defendant to claim that she was just trying to make sure no one got hurt, based on the victims' testimonies that defendant personally used force to hold them down, and threatened them with death, while the man aimed the gun at them and the other suspect took their property. "[T]his was a planned, coordinated, violent crime against vulnerable individuals."
The prosecutor noted that Rodriguez had been sentenced to nine years eight months in prison, and she did not use force or threaten to kill the victims. In contrast, defendant was more culpable than Rodriguez and convicted of additional offenses, including criminal threats, because she personally held down the victims and made death threats against them.
The sentence
The court found defendant was ineligible for probation and there were no unusual circumstances. The court found defendant posed "a significant risk to the safety of the community" based on the serious nature of the offenses.
The court found the aggravating circumstances outweighed the mitigating circumstances for purposes of imposing concurrent or consecutive sentences, and that "except for Count Two [first degree burglary] and Count One [home invasion robbery], all other crimes were independent of each other and involved separate acts of violence and/or threats of violence."
The court imposed an aggregate term of eight years eight months in prison. It selected count I, first degree home invasion robbery, as the principal term, and imposed the midterm of six years. The court imposed consecutive terms of eight months (one-third the midterms) for count III, criminal threats against Backhaus; count IV, criminal threats against S.; count V, possession of methamphetamine; and count VIII, commercial burglary of the Johnny Quick store.
The court explained that consecutive terms were appropriate for these counts because "of the separate acts of violence, separate from and independent of Count One [home invasion robbery] and Count Two [first degree burglary]." The court noted that two convictions for criminal threats involved different victims, Backhaus and her son, and consecutive terms were appropriate. The court also found a consecutive sentence was appropriate for count V, possession of methamphetamine, because it occurred on a different date and it was independent of the other charges. The court found a consecutive term was similarly appropriate for count VIII, commercial burglary at the gas station, because "the crime and its objective [were] independent of the other crimes and offenses that the defendant committed."
The court imposed concurrent terms of eight months (one-third the midterms) for counts VI and VII, possession of Vicodin and Codeine; and the midterm of four years for count II, first degree residential burglary, and stayed that term pursuant to section 654.
DISCUSSION
I. Defendant was Properly Convicted of Both Home Invasion Robbery and Burglary
Defendant argues she was improperly convicted of both count I, home invasion robbery, and count II, first degree residential burglary, because residential burglary is a lesser included offense of home invasion robbery. The People assert that both convictions were appropriate because burglary is not a lesser included offense of robbery. After reviewing the People's arguments, defendant filed a reply brief and conceded she was properly convicted of both counts I and II.
We briefly review the applicable law. "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed), italics in original; § 954.) "A judicially created exception to the general rule permitting multiple convictions 'prohibits multiple convictions based on necessarily included offenses.' [Citation.]" (Reed, supra, 38 Cal.4th at p. 1227.)
The statutory elements test is used to determine whether the defendant has been convicted of both greater and lesser offenses, such that "if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Reed, supra, 38 Cal.4th at pp. 1227, 1229.)
In count II, defendant was charged and convicted of first degree residential burglary in violation of sections 459 and 460. "Every person who enters any house ... with intent to commit grand or petit larceny or any felony is guilty of burglary...." (§ 459.) Burglary of an "inhabited dwelling house" is burglary of the first degree. (§ 460, subd. (a).) "The gravamen of a charge of burglary is the act of entry which must be accompanied by a felonious intent." (People v. Walters (1967) 249 Cal.App.2d 547, 550; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1377.) "The crime of burglary is complete when an entry with the essential intent is made, regardless whether the felony planned is committed or not. [Citation.]" (People v. Walters, supra, 249 Cal.App.2d at p. 550.)
Defendant was charged and convicted in count I of first degree home-invasion robbery in violation of section 213, subdivision (a)(1)(A). "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The defendant must have the specific intent to permanently deprive the victim of his or her property. (People v. Clark (2011) 52 Cal.4th 856, 943.)
"Every robbery ... which is perpetrated in an inhabited dwelling house ... is robbery of the first degree." (§ 212.5, subd. (a).) Section 213, subdivision (a)(1)(A) states that first degree robbery is punishable in state prison for three, six or nine years "[i]f the defendant, voluntarily acting in concert with two or more persons, commits the robbery within an inhabited dwelling house ...."
As the People contend, and defendant concedes, a necessary element of burglary is the defendant's "entry" into a residence "with the essential intent" to commit a felony therein. In contrast, robbery - and first degree home-invasion robbery - does not require an "entry" with any type of intent. Instead, the defendant must commit a felonious taking by force or fear, and have the specific intent to permanently deprive the victim of his or her property. Thus, first degree residential burglary is not a lesser included offense of first degree home-invasion robbery under the statutory elements test and, as defendant concedes, she was properly convicted of counts I and II.
II. Section 654
The court imposed consecutive sentences for count I, home invasion robbery, and counts III and IV, criminal threats committed against Backhaus and her son, because it found the crimes involved separate acts of violence and different victims. Defendant argues the sentences for counts III and IV, criminal threats, should have been stayed pursuant to section 654 because defendant planned the home invasion robbery with her two accomplices to steal Backhaus's Social Security money, and the criminal threats were used to accomplish the robbery.
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citation.] 'If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] If, on the other hand, 'the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, [s]he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Martin (2005) 133 Cal.App.4th 776, 780-781.)
"Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the 'intent and objective' of the actor. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) "As a general rule, the sentencing court determines the defendant's 'intent and objective' under section 654. [Citation.]" (Id. at p. 268.) "We review such a finding under the substantial evidence test [citation] ...." (People v. Martin, supra, 133 Cal.App.4th at p. 781.)
There is substantial evidence to support the trial court's finding that these offenses involved separate acts of violence and different victims. Defendant and the gunman forced Backhaus into her trailer and onto the floor. Defendant held Backhaus down by her shoulders while the gunman aimed his weapon at her. Backhaus screamed, " 'Don't kill me. Don't kill me. Please don't kill me.' " S. woke up when he heard his mother's screams, and saw defendant holding down his mother, but didn't realize the man had a gun. S. testified that at this time, someone else (Rodriguez) was going through the trailer and taking their property. S. jumped on the man and shouted not to kill his mother. The gunman turned his weapon toward S. Defendant grabbed S.'s arms, and one of the perpetrators pushed S. down.
At that point, Backhaus screamed, " 'Please don't kill my son. Don't kill my son.' " Backhaus and S. testified defendant grabbed Backhaus, picked her up, and threw her on top of S. Backhaus testified defendant said, " 'Shut him up or I'll kill you myself.' " S. testified defendant said, " 'You need to shut your son up or I'm going to shoot you or he [the gunman] will shoot you.' "
Defendant's threats to kill Backhaus and S. were the basis for counts III and IV, criminal threats. These threats were not made to accomplish the robbery because the victims were under the control of the gunman and defendant, and Rodriguez was already stealing their property. Instead, defendant made the threat to expressly stop the victims from screaming so their neighbors would not hear their cries for help. Backhaus testified she had earlier heard her neighbor calling out to use her cellphone, and defendant admitted her familiarity with the trailer ranch. Defendant was obviously concerned that the occupants of the other trailers were close enough to hear the victims' screams, and might intervene or call the police. Her threats were made to intimidate Backhaus and her son, and prevent them from making additional cries for help.
Defendant argues the threats to Backhaus and her son were part of her commission of the robbery because the crime was still in progress since the three suspects had not yet reached a place of temporary safety. " 'Under the escape rule,... "robbery is said to continue through the escape to a place of temporary safety, whether or not the asportation of the loot coincides with the escape." ' [Citation.] The purpose of the escape rule is to measure the duration of a robbery, in order to determine whether a killing or some other act has occurred in the perpetration or commission of the robbery. [Citation.]" (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007, italics in original.)
While a robbery is not complete until the robber " 'has won his way to a place of temporary safety,' [citation]" that does not mean that "every act a robber commits before making his [or her] getaway is incidental to the robbery." (In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) The escape rule is not used to conduct a section 654 analysis because "determining whether section 654 applies does not turn on whether 'an act occurred in the commission of a crime ...' [citation], but rather, on whether a defendant entertained ' "multiple criminal objectives" ' [citation] ...." (People v. Rodriguez, supra, 235 Cal.App.4th at p. 1007.) "[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate." (People v. Nguyen (1988) 204 Cal.App.3d 181, 193, disapproved on other grounds in Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, fn. 6.)
Finally, even in the absence of evidence of multiple and independent criminal objectives, consecutive sentences were appropriate based on the multiple victim exception to section 654, which provides that " 'even though a defendant entertains but a single principal objective during an indivisible course of conduct, [s]he may be convicted and punished for each crime of violence committed against a different victim.' [Citations.] The reason for the multiple victim exception is that 'when a defendant " 'commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,' [her] greater culpability precludes application of section 654." ' [Citations.]" (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) Both robbery and criminal threats are violent crimes for purposes of the multiple victim exception to section 654. (People v. Champion (1995) 9 Cal.4th 879, 935, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Solis (2001) 90 Cal.App.4th 1002, 1025.)
We thus conclude defendant was properly sentenced to multiple consecutive terms in this case.
III. Proposition 47
Defendant asserts she is entitled to the "automatic reduction" of her felony drug convictions by this court, based on the following scenario in light of the enactment of Proposition 47.
On March 17, 2013, prior to her jury trial, defendant pleaded no contest to the felony offenses of count V, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and counts VI and VII, possession of Vicodin and Codeine (Health & Saf. Code, § 11350, subd. (a)).
On April 22, 2014, the court held the sentencing hearing and, in addition to the sentences imposed for the home invasion robbery and burglary, imposed a consecutive term of eight months for count V, and concurrent terms of eight months each for counts VI and VII.
On November 4, 2014, voters enacted Proposition 47. It went into effect the next day. (People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256 (Bradshaw); Cal. Const., art. II, § 10, subd. (a).) As relevant to this case, Proposition 47 renders certain drug-related offenses as misdemeanor that were previously felonies or "wobblers," unless they were committed by certain ineligible defendants. Proposition 47 also created a new resentencing provision - section 1170.18 - by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a); Bradshaw, supra, 246 Cal.App.4th at p. 1256.) "Upon receiving such a petition, the trial court must determine whether the petitioner satisfies the criteria in subdivision (a) of section 1170.18. [Citation.] A person who satisfies the statutory criteria shall have his or her sentence recalled and be '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.' [Citation.]" (Bradshaw, supra, 246 Cal.App.4th at p. 1257.)
Defendant asserts that her felony drug convictions have been rendered misdemeanors pursuant to Proposition 47. Defendant further asserts that she is not required to file a petition for recall of her sentence in the superior court, under section 1170.18, where the court would have discretion to resentence her depending upon whether she would pose an unreasonable risk of danger to public safety. Instead, defendant argues that she is entitled to "automatic, nondiscretionary resentencing" because Proposition 47 was enacted before the judgment in her case was final, based on In re Estrada (1965) 63 Cal.2d 740.
As this court has previously explained, however, "[s]everal cases have held Proposition 47 does not provide for automatic resentencing of a defendant currently serving a felony sentence and is not automatically applicable to those whose judgments are not yet final. [Citations.] We agree with the reasoning and conclusion of these opinions, which limit defendants to the statutory remedy, set forth in section 1170.18, of petitioning for recall of sentence [citation] ..., in the trial court once the judgment is final [citations]." (Bradshaw, supra, 246 Cal.App.4th at p. 1257.)
In the alternative, defendant asserts this court must stay the instant appeal and remand the matter so she can file the appropriate petition for the superior court to automatically resentence her. Again, as we have previously explained, "[w]e fail to see how this makes a meaningful difference" since " 'the voters set forth specific procedures for securing the lesser punishment to eligible persons....' [citation]," and similarly reject this argument." (Bradshaw, supra, 246 Cal.App.4th at pp. 1257-1258.)
Defendant further contends that this court should order a "brief stay in this appeal and a limited remand to the trial court to rule on a petition for resentencing," as was done in People v. Awad (2015) 238 Cal.App.4th 215 (Awad). Awad involved a different procedural background. In that case, Proposition 47 was enacted after the defendant was convicted, sentenced, and had filed an appeal of his convictions. While his appeal was pending, however, the defendant filed a petition for recall and resentencing with the superior court pursuant to section 1170.18. The superior court declined to consider his petition on the ground it lacked jurisdiction to recall the sentence while the defendant's appeal was pending. After the superior court denied the petition, the defendant requested the appellate court to order a limited remand. (Id. at p. 218.) Awad granted the defendant's request and held the "way out of this jurisdictional conundrum" was "a discretionary remand ... to the trial court for the sole and express purpose of determining, within a specified time frame, a Proposition 47 petition to recall a sentence," and ordered a limited stay of the appeal. (Ibid.; cf. People v. Scarbrough (2015) 240 Cal.App.4th 916, 920-930.)
Assuming without deciding the correctness of Awad, there is no evidence defendant filed a petition for recall with the superior court while this appeal was pending, so the unique procedural circumstances of that case are not present. In addition, we have already determined the merits of defendant's pending appeal.
Defendant is thus limited to the statutory remedy of petitioning for recall of her sentence in the trial court once the judgment is final pursuant to section 1170.18.
We note that the issue of whether Proposition 47 applies retroactively to a defendant who was sentenced before its effective date but whose judgment was not final until after that date is pending before the California Supreme Court in People v. DeHoyos (2015) 238 Cal.App.4th 363, review granted September 30, 2015, S228230. --------
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.