Opinion
A150879
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY STOKES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR266278)
Defendant Anthony Stokes contends the court erred when it denied his petition to reduce his 2009 felony conviction for transporting a controlled substance to a misdemeanor pursuant to Proposition 47. Because transporting a controlled substance was exclusively a felony at the time of Stokes's 2009 conviction, we affirm.
BACKGROUND
Stokes was wanted for a parole violation in 2009 when he was stopped while riding as a passenger in a vehicle in which drugs were found. He pleaded no contest to felony transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and, after failing on probation, served three years in state prison.
Hereinafter section 11352.
In December 2016 Stokes petitioned the superior court under Penal Code section 1170.18 to reduce his 2009 felony conviction to a misdemeanor or, alternatively, for a reversal and new trial. The court ruled section 1170.18 was inapplicable to the 2009 conviction because Proposition 47 did not amend section 11352. In addition, the court ruled that a 2014 amendment to section 11352 did not bring the conviction within the initiative's ambit because Stokes's conviction was final when section 11352 was amended. Stokes filed this timely appeal.
Unless otherwise noted, further statutory references are to the Penal Code.
DISCUSSION
The sole question on appeal concerns a question of law, so our review is de novo. (People v. Love (2005) 132 Cal.App.4th 276, 284.)
Stokes's position is premised on a 2014 amendment to section 11352, subdivision (a). When Stokes was convicted of transporting a controlled substance in 2009, section 11352, subdivision (a) did not distinguish between transportation for personal use and transportation for sale. Effective January 1, 2014, the Legislature amended section 11352 to provide, "For purposes of this section, 'transports' means to transport for sale." (§ 11352, subd. (c); Stats. 2013, c. 504, § 1.) The prosecutor here did not dispute Stokes's assertion that his 2009 conviction was premised on his personal use.
The Legislative modification to section 11352 was followed by more general modifications to the state's sentencing laws enacted by initiative in the fall of 2014. Specifically, "[o]n November 4, 2014, the voters enacted Proposition 47, . . . which went into effect the next day." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). Proposition 47: (1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (Id. at p. 1091.) But it did not amend section 11352, which, as we have noted, penalizes the transportation of controlled substances, and had already been narrowed by the Legislature in 2013 to apply only to transportation for sale.
Section 1170.18, added by Proposition 47, permits certain offenders to petition the superior court for resentencing or recall. "Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in Penal Code section 1170.18 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.' (§ 1170.18, subd. b).)" (People v. Rivera, supra, 233 Cal.App. 4th at p. 1092.)
Proposition 47 also created a mechanism whereby felons who have completed terms for offenses that would be misdemeanors under section 1170.18 may petition the trial court to have their felony convictions redesignated as misdemeanors. (§ 1170.18, subd. (f).) It provides: "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 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), italics added.)
But nothing in Proposition 47 reduced the offense of transporting controlled substances under section 11352 from a felony to a misdemeanor. Thus, Stokes would have been convicted of a felony, not a misdemeanor, even "had [Proposition 47] been in effect at the time of the offense" in 2009. (§ 1170.18, subd. (f).) The language of section 1170.18, subdivision (f) is clear and unambiguous. It precludes designating Stokes's 2009 felony conviction as a misdemeanor because in 2009 transporting a controlled substance was exclusively a felony. "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." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
Stokes seeks to make much of the Legislature's decision in 2013 to amend section 11352 to penalize only the transportation of controlled substances for sale effective January 1 2014. As we understand his argument, this amendment demonstrates the Legislature's view that transportation for personal use is a " 'nonserious, nonviolent crime.' " Relying on excerpts from the official legislative analysis and ballot proponents' arguments contained in the 2014 Voter Information Guide for Proposition 47 that describe an intention to reduce penalties for "certain nonserious and nonviolent property and drug offenses," such as "drug possession" and "simple drug possession," Stokes asserts the initiative in fact reduced any drug possession felony to a "triad of misdemeanor offenses" identified in section 1170.18, i.e., sections 11350, 11357 and 11377. In his view, it is therefore inconsequential that section 11352 was not one of the statutes expressly enacted or amended by Proposition 47. Since the conduct supporting his 2009 conviction would now "fall within the ambit of Health and Safety Code section 11350, subdivision (a)" following the 2013 amendment and would be for simple possession, he is entitled to redesignation.
We disagree. Again, " ' "When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.' [Citation.]" (People v. Hendrix (1997) 16 Cal.4th 508, 512.) Stokes's 2009 conviction was for transportation of a controlled substance, a felony at that time whether the transportation was for sale or personal use, and it required an element not included in simple possession. (See, e.g., People v. Meza (1995) 38 Cal.App.4th 1741, 1746 [transportation is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character]; CALJIC No. 12.02.) Because Penal Code section 1170.18, by its terms, applies to offenses specifically reduced to misdemeanors by Proposition 47 or those that could have been misdemeanors when committed, and because Proposition 47 did not reduce the penalty for violations of section 11352, it follows that Stokes is not entitled under section 1170.18, subdivision (f) to have his 2009 conviction reduced.
People v. Page (2017) 3 Cal.5th 1175 (Page)), issued after briefing was completed in this case, does not persuade us otherwise. The Supreme Court clarified that section 1170.18, subdivision (a)'s list of statutory sections " 'amended or added by this act' . . . [¶] . . . does not say that only those defendants who were convicted under the listed sections are eligible for resentencing. The statute instead says that those who are eligible (i.e., defendants serving a felony sentence who would have only been guilty of a misdemeanor had Proposition 47 been in effect at the time of their offenses) may 'request resentencing in accordance with' the listed sections." (Id. at p. 1184.) The listed statutes, therefore, identify the sections under which defendants are to be resentenced if they qualify, i.e., if they "would have only been guilty of a misdemeanor had Proposition 47 been in effect at the time of their offenses." (Ibid.)
Under this approach, the Court determined that Mr. Page would be entitled to resentencing under Proposition 47 if he could prove the conduct underlying his conviction under Vehicle Code section 10851 amounted to theft of a car worth $950 or less. The critical fact was not whether Vehicle Code section 10851 is one of the offenses listed in section 1170.18; rather, what mattered was whether the defendant's criminal conduct fell within Proposition 47's new petty theft provision, section 490.2—one of the provisions added by the initiative, which by its terms requires that thefts involving value of $950 or less must be punished as a misdemeanor "notwithstanding . . . any other provision of law." (§ 490.2, italics added.) If Mr. Page's criminal conduct was in fact as described by section 490.2, then under the express terms of Proposition 47 he could only have been punished for a misdemeanor if the initiative had then been in effect.
This case is different. In contrast to Proposition 47's broad reclassification of petty theft crimes, nothing in the initiative demands, like section 490.2, that all crimes involving possession of controlled substances for personal use must be punished as misdemeanors "notwithstanding . . . any other provision of law." Nor does any provision require that possession crimes involving the transportation of contraband must be punished or redesignated as simple possession. Therefore, even if Proposition 47 had been in effect at the time of Stokes's 2009 offense, his conviction would have been for felony transportation of a controlled substance.
We acknowledge that Stokes would theoretically have been eligible for a Proposition 47 sentence redesignation had he been prosecuted for the same conduct after, rather than before, the transportation statute was amended to exclude transportation for personal use. Perhaps this result is anomalous, in that a person convicted for transporting controlled substances for personal use prior to 2014 is ineligible for redesignation under Proposition 47, while one who engages in essentially the same behavior after section 11352 was amended could have been prosecuted for a simple possession offense (see §§ 11350, 11377) and therefore fall within the initiative's ambit. But the language of section 1170.18, subdivision (f) is clear, and it is beyond this court's purview to rewrite it. The trial court properly denied Stokes's petition for redesignation to a misdemeanor.
We assume arguendo that, based on the prosecutor's current decision not to dispute Stokes's characterization of the incident as possession for personal use, the incident would not support a charge of transporting contraband for sale. However, no factual findings were made on this issue in the trial court and we express no opinion on it.
DISPOSITION
The order is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Pollak, J.