Opinion
F072198
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLOTTE ANN O'NEIL, Defendant and Appellant.
Sandra Gillies, 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, Kathleen A. McKenna and Nicholas M. Fogg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR026438)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Sandra Gillies, 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, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
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Charlotte Ann O'Neil was convicted of transportation and possession of methamphetamine in 2008. She was released after sentencing but failed, in violation of the court's order, to surrender to state prison authorities on the appointed date. She reappeared in court in April 2015. At that time, pursuant to Proposition 47, the court converted her methamphetamine possession convictions to misdemeanors and resentenced her accordingly. She appeals from the Proposition 47 resentencing proceeding.
O'Neil argues the court erred in failing to convert her methamphetamine transportation convictions to possession convictions pursuant to a 2013 amendment to the applicable Health and Safety Code statute, narrowing the scope of transportation offenses to offenses specifically involving the transportation of controlled substances for sale. She further argues the court was required to redesignate as misdemeanors her prior convictions underlying prison prior enhancements imposed in the instant case.
We reject O'Neil's contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Since this appeal is from a Proposition 47 resentencing proceeding, the record in the matter is limited and the facts of the underlying case are not readily ascertainable. We have outlined pertinent details as gleaned from the probation report in the underlying case.
Events of 2006
O'Neil's convictions arose from two incidents that occurred in September 2006. In the first incident, which took place on September 1, 2006, police officers found about half an ounce of methamphetamine in O'Neil's car during a traffic stop. In the second incident, which took place on September 28, 2006, officers conducted a traffic stop on O'Neil's car and searched her house. Officers found methamphetamine both on O'Neil's person and in her house. The September 28, 2006 incident occurred while O'Neil was on bail, in connection with the September 1, 2006 incident.
Events of 2008
Based on the two incidents described above, on June 19, 2008, O'Neil was convicted of two counts of transportation of methamphetamine (counts 1 and 3) and two counts of possession of methamphetamine (counts 2 and 4). (Health & Saf. Code, §§ 11379, subd. (a), 11377, subd. (a).) O'Neil was sentenced on October 1, 2008, to five years eight months on her convictions: the upper term of four years for one of the transportation counts; a consecutive one-year term for the other transportation count; and a consecutive eight-month term for one of the possession counts (the term on the other possession count was stayed pursuant to Pen. Code, § 654). She was sentenced to an additional 10 years based on sentence enhancements: three years for a recidivist enhancement based on a prior conviction of transporting or possessing a controlled substance for sale; two years for an on-bail enhancement because two of the offenses were committed while she was out on bail; and five years for five prison priors. (Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, §§ 12022.1, 667.5, subd. (a).) O'Neil's aggregate sentence was 15 years eight months. The court set O'Neil's surrender date for November 10, 2008, but O'Neil failed to report to state prison as directed.
Events of 2015
O'Neil next appeared in the Madera County Superior Court on April 29, 2015. The court noted that O'Neil was sentenced for her convictions in 2008, and that shortly thereafter judgment in that case became final. Accordingly, the court set a rehearing proceeding pursuant to Penal Code section 1170.18, subdivision (a), as O'Neil's methamphetamine possession offenses had been reclassified as misdemeanors by Proposition 47 (approved by voters in 2014). The court reduced both of O'Neil's possession convictions to misdemeanors and resentenced her to the same aggregate term as before. O'Neil then filed the instant appeal.
DISCUSSION
I. Retroactivity of 2013 Amendment to Health and Safety Code Section 11379
In 2013, well after O'Neil's convictions were final, the Legislature amended Health and Safety Code section 11379, which criminalizes the transportation of various controlled substances. The 2013 amendment narrowed the scope of Health and Safety Code section 11379, by adding an element—i.e., transportation for sale—to the crime of transportation of a controlled substance. (See Stats. 2013, ch. 504, § 2.) While Health and Safety Code section 11379 previously prohibited any transportation of a controlled substance, under the 2013 amendment, it prohibits only transportation for sale. (See Health & Saf. Code, § 11379, subd. (c).) O'Neil acknowledges that judgment in the instant case was final well before the amendment was enacted in 2013.
With regard to her convictions, O'Neil had filed a notice of appeal in this court on October 14, 2008, in case No. F056261. When she failed to submit an opening brief, this court issued a notice of default and ultimately dismissed the appeal. The remittitur was issued on March 4, 2009. (See People v. Smith (2015) 234 Cal.App.4th 1460, 1465 ["A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari [with the United States Supreme Court] have expired."].)
Despite the fact that judgment in O'Neil's instant case was final before enactment of the amendment, O'Neil argues she is entitled, retroactively, to the benefit of the amendment. Specifically, she contends the trial court should have retroactively applied the amendment to her methamphetamine transportation convictions so as to convert them to possession convictions, whereby she would be able to petition the court for resentencing under Penal Code section 1170.18 (because possession offenses were reclassified as misdemeanors by Proposition 47). O'Neil provides no authority, or even any argument, regarding the propriety of raising her retroactivity claim for the first time in a resentencing hearing pursuant to Penal Code section 1170.18, subdivision (a), which occurs after judgment in the underlying case has become final and has a limited scope (as set forth in the statute itself). (See Pen. Code, § 1170.18, subds. (a) & (f); see also People v. Scarbrough (2015) 240 Cal.App.4th 916, 925, 929-930 [defendant seeking resentencing under Proposition 47 must file petition for recall of sentence in trial court once underlying judgment is final].)
Here, O'Neil's direct appeal was dismissed for failure to submit an opening brief and the remittitur was issued on March 4, 2009. Since judgment in O'Neil's case was final long before the instant resentencing hearing, she is restricted to a writ petition for purposes of raising any claim as to retroactive application of Health and Safety Code section 11379. In any event, we are not persuaded by O'Neil's argument that the legislative history of the 2013 amendment to Health and Safety Code section 11379 indicates that the Legislature intended the amendment to apply to convictions that had become final prior to the amendment's enactment. (Cf. People v. Ramos (2016) 244 Cal.App.4th 99 [finding that 2013 amendment to Health & Saf. Code, § 11352—which is directly analogous to the 2013 amendment to Health & Saf. Code, § 11379—applies retroactively to cases that were pending final judgment at the time of enactment of the amendment].)
Health and Safety Code sections 11352 and 11379 encompass varying types of controlled substances.
The trial court granted O'Neil relief under section Penal Code section 1170.18 as to her two Health and Safety Code section 11377 possession convictions, because a possession offense under the latter statute was reclassified as a misdemeanor by Proposition 47. O'Neil's two remaining convictions are for transportation of methamphetamine under Health and Safety Code section 11379, and a Health and Safety Code section 11379 offense does not come within the purview of Proposition 47. Therefore, O'Neil failed to make a prima facie claim for relief under Penal Code section 1170.18 as to her Health and Safety Code section 11379 convictions. We see no error in the trial court's determinations as to O'Neil's convictions under Health and Safety Code section 11379. II. Redesignation, as Misdemeanors, of O'Neil's Prior Felony Convictions Underlying the Prison Prior Enhancements Imposed in the Instant Case
At the resentencing hearing held by the trial court pursuant to Penal Code section 1170.18, subdivision (a), O'Neil's counsel pointed out that three of O'Neil's prior convictions relating to the prison prior enhancements imposed in the instant case appeared to be eligible for redesignation as misdemeanors under Penal Code section 1170.18, subdivision (f). Counsel stated: "She has [a Health and Safety Code section] 11377 out of Madera County in 2003, another one in 1998, and a [Penal Code section] 496 in 2001. I don't know if you're able to do that now, Judge, or ... if I need to do a written request for that, but I'd like to have those reduced as well." The prosecutor responded: "She may very well be entitled to relief on those, but we'd have to have those cases before us, and I don't believe we have those cases before us. [¶] ... [¶] She can file her petitions from State Prison." The court ruled: "There's nothing before the Court. At this point it's an oral motion, and Ms. O'Neil can file a written motion and we can address them."
Penal Code section 1170.18, subdivision (f), 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." (Italics added.)
Here the matter before the court was a resentencing proceeding pursuant to Penal Code section 1170.18, subdivision (a), at which the court reduced two of O'Neil's instant convictions to misdemeanors and resentenced her with those two convictions as misdemeanors. At the end of the proceeding, defense counsel sought to redesignate O'Neil's prior convictions as misdemeanors pursuant to Penal Code section 1170.18, subdivision (f). However, as the court noted, the records of the prior cases were not before the court and, therefore, O'Neil had not made a prima facie claim for relief under Penal Code section 1170.18, subdivision (f). (See Evid. Code, § 500; People v. Perkins (2016) 244 Cal.App.4th 129, 136 [a party seeking relief under Pen. Code, § 1170.18 has the burden of establishing his eligibility for the relief sought].) Accordingly, the trial court properly required O'Neil to avail the statutory remedy of "fil[ing] an application before the trial court that entered the judgment of conviction," as to each felony conviction that she sought to have redesignated as a misdemeanor. (Pen. Code, § 1170.18, subd. (f); see People v. Shabazz (2015) 237 Cal.App.4th 303, 314 ["Defendant is limited to the statutory remedy set forth in [Penal Code] section 1170.18, subdivision (f). He must file an application in the [appropriate] trial court to have his felony convictions designated misdemeanors."].)
Although Perkins construed Penal Code section 1170.18, subdivision (a), its rationale is equally applicable to Penal Code section 1170.18, subdivision (f).
Furthermore, redesignation of O'Neil's prior convictions as misdemeanors would have no impact on her sentence in the instance case, because the judgment in the instant case became final well before enactment of Penal Code section 1170.18. (See People v. Evans (2016) 6 Cal.App.5th 894, 902-903, review granted Feb. 22, 2017 [to the extent the benefits of [Penal Code] section 1170.18—as to prior prison enhancements—apply retroactively to persons sentenced before enactment of the statute, such retroactive application is limited to cases that, at the time of enactment of the statute, were pending final judgment]; People v. Jones (2016) 1 Cal.App.5th 221, 229, review granted Sept. 14, 2016 [once judgment and sentence, including prison prior enhancements, have become final (prior to enactment of Pen. Code, § 1170.18), subsequent redesignation as misdemeanors of the convictions underlying the prison priors does not affect the sentence previously imposed].)
On the instant record, we conclude the court did not err in finding that O'Neil was required to file a written application in the appropriate trial court, in order to redesignate her prior felony convictions as misdemeanors under Penal Code section 1170.18, subdivision (f).
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
POOCHIGIAN, A.P.J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------