PEOPLE v. MARTINEZ

Appellant’s Petition for Review

Cal.January 15, 2016

§ 231826 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, VS. MARIO MARTINEZ, Defendant and Appellant. ) No. ) ) 4th Dist. No. E063 107 ) ) (Super. Ct. No. SWF136990) ' SUPREME COURT ) ) FILED JAN 15 2016 Frank A. McGu ire Clerk PETITION FOR REVIEW Deputy After a Decision by the Court of Appeal Fourth Appellate District, Division Two, Case No. E063 107 On Appealfrom the Superior Court of the County of Riverside The Honorable Becky L. Dugan, Case No. SWF 136990 Sylvia W. Beckham Lawyer (SBN 160568) 226 West Ojai Avenue Suite 101, PMB 529 Ojai, CA 93023-3278 telephone: (805) 646-6208 e-mail: s.beckham@att.net Representing Appellant by appointmentof the Court of Appeal under Appellate Defenders, Inc. independent case system TABLE OF CONTENTS page TABLE OF CONTENTS 2.0.0.0... cece teen eee n eee 2 TABLE OF AUTHORITIES ....... 0.0... c c cece tenes 3 PETITION FOR REVIEW ... 2.0... eeeee eens 5 ISSUES PRESENTED FOR REVIEW ..... 0.0.0.0 cece eee eee e ees 6 NECESSITY FOR REVIEW ... 2.0.0... ccccece eas 6 STATEMENT OF THE CASE ........ 00.00 cece cette eas 8 STATEMENT OF FACTS 2.0.0... ccc ccc eee eet n en ens 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF GRANTING REVIEW ...............205. 10 I AnyFelony is Eligible for Relief Under Section 1170.18 So Longas the Facts Underlying the Offense Satisfy the Elements of One of the _ Enumerated Misdemeanors ........... 0.0.0 cece cece eee eee 10 I] Allowing Resentencing/Reclassification for Felony Transportation of Methamphetamine For Personal Use is Consistent With the Intents And Purposes of Proposition 47 and Preceding Legislation Amending Section 11379... 0.2.0.0... 0.0... .0000 00 17 CONCLUSION 2.0... 0...eeeene t nen ees 22 CERTIFICATE OF LENGTH ....0.00... 23 PROOF OF SERVICE . 0.0... eeecee ence nee n ene 24 APPENDIX: Copy of Opinion filed December 15, 2015 Se TABLE OF AUTHORITIES CASES: page Caminetti v. United States (1917) 242 U.S. 470 [37 S.Ct. 192, 61 L.Ed. 442] oo...eee 15 Armstrong v. County ofSan Mateo (1983) 146 Cal.App.3d 597 ....... 15 Cooley v. Superior Court (2002) 29 Cal.4th 228 1.0.0... 0.0.0.0... e 20 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 0...eeee tenes 20 Inre JL. (2015) 242 Cal.App.4th 1108... 2.0.0... eee eee 7,11 In re Lance W. (1985) 37 Cal.3d 873 2.0...0ceee 20 Leroy T. v. Workmen's Comp. Appeals Board (1974) 12 Cal.3d 434 2...cecee 15 Palos Verdes Faculty Association v. Palos Verdes Peninsula Unified Sch. District (1978) 21 Cal.3d 650 ......... 0.000000. 20 People v. Acosta (2015) 242 Cal.App.4th 521 .............. 7, 13, 14, 15 People v. Benson (1998) 18 Cal.4th 24 2... 0.eee 15 People v. Caudillo (1978) 21 Cal.3d 562 1.00... cee cece 20 People v. Contreras (2015) 237 Cal.App.4th 868 ................ 6, 11 People v. Emmal (1998) 68 Cal.App.4th 1313... 0... eee eee eee 17 People v. Gomez (2015) — Cal.App.4th [2015 Cal.App. LEXIS 1152] 22.0... eee eee 7,12 People v. Gonzales (2015) 224 Cal.App.4th 35 [2015 Cal.App. LEXIS 1006] .............. 7, 12, 13, 14, 15, 16 People v. Haywood (2015) — Cal.App.4th [2015 Cal. App. LEXIS 1168] ..............0...05. 7, 13, 14, 15 People v. Hicks (2014) 231 CalApp.4th 275 2.0... ce eee eee 10 People v. King (2015) 242 Cal.App.4th 1312 .............. 7, 13, 14, 15 People v. Lacross (2001) 91 Cal.App.4th 182 2.0... . 0. cece eee eens 17 People v. Oehmigen (2014) 232 Cal.App.4th 1] ..... 0... cece eee eee 10 People v. Page (2015) 241 Cal.App.4th 714 ........... 7, 13, 14, 15, 16 TABLE OF AUTHORITIES, Cont. CASES, cont. page People v. Romanowski (2015) 242 Cal.App.4th 151 People v. Rivas-Colon (2015) 241 Cal.App.4th 444 .............. 6, 11 People v. Sherow (2015) 239 Cal.App.4th 875 «1... .. 02.0.0... 7, 11,12 People v. Thompson (2015) — Cal.App.4th —__ [2015 Cal.App. LEXIS 1160] ......... 0.02... eee eee eee 7,12 People v. Williams (1992) 10 Cal.App.4th 1389) ...... 0.0... .....0.. 20 Pham v. Workers' Comp. Appeals Board (2000) 78 Cal.App.4th 626 2.0... eee eee eee i4 T.W. v. Superior Court (2015) 236 Cal.App.4th 646 ................ 14 RULES: California Rules of Court, rule 8.500(b)(1) ...0.ee6 California Rules of Court, rule 8.512(d)(2) .. 0... 0.cee 16 STATUTES: Code of Civil Procedure section 1858 0.0.2... 2. eee eee ee 15 Health and Safety Code section 11377 ............ 6, 7, 8, 16, 18, 19, 20 Health and Safety Code section 11379 ......... 0.2... eee eee Passim Penal Code section 459 2...ccee ee eens 8, 11 Penal Code section 459.5 J...eee 11, 14, 15, 16, 19 Penal Code section 490.2 2.0... ccc cece eee 13, 14, 15, 16, 19 Penal Code section 1170.18 0.2... 2...eeeee passim Vehicle Code section 10851 oo...eee 7, 12, 13 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, ) No. Plaintiff and Respondent, 4th Dist. No. E063107 VS. (Super. Ct. No. SWF 136990) MARIO MARTINEZ, a e a a Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, THE CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Appellant, MARIO MARTINEZ,hereby petitions this Honorable Court for review in the above-entitled matter of the unpublished Opinion filed December 15, 2015, by the Court of Appeal of the State of California, Fourth Appellate District, Division Two. A copy of the Opinion is attached hereto as an appendix. ISSUES PRESENTED FOR REVIEW 1. Does Proposition 47 allow relief for any felony convictionthat, based on the facts underlying the offense, satisfies the elements of any of the misdemeanoroffenseslisted in section 1170.18? 2. Had Proposition 47 been in effect when defendant committed the offense of transportation of methamphetamine (for personal use in violation of Health and Safety Code section 11379), would that offense qualify for resentencing pursuant to section 1170.18 as a misdemeanorviolation of Health and Safety Code section 11377, taking into consideration that prior to enactment of Proposition 47, the Legislature reduced the offense of transportation of methamphetamine for personal use to a misdemeanor? NECESSITY FOR REVIEW Review by the Supreme Court of a decision of the Court of Appeal should be granted “when necessary to secure uniformity of decision or to settle an important question of law.” (Cal. Rules of Court, rule 8.500(b)(1).) There is at present a split of authority in the Courts of Appeal on the first issue presented. Both issues are important questions of law. At present, there are estimated hundredsofpetitioning defendants seeking relief pursuant to Penal Code section 1170.18. Review is necessary because the issues presented are likely to arise in hundreds if not thousands of cases and therefore warrant review in this Court. Asto the first issue presented, some decisions have implicitly held that felony offenses notlisted in section 1170.18, i.e. second degree “commercial” burglary, are eligible for reduction to or reclassification as one ofthe listed misdemeanoroffenses, depending on the facts underlying the felony conviction meeting the elements ofthe listed misdemeanors. (Sixth Dist., People v. Contreras (2015) 237 Cal.App.4th 868, 892; First Dist. Div. Five, People v. Rivas-Colon (2015) 241 Cal.App.4th 444; Fourth Dist. Div. One People v. Sherow (2015) 239 Cal.App.4th 875; Second Dist. Div. 5, Dec. 4, In re JL. (2015) 242 Cal.App.4th 1108.) Morerecently, the Court of Appeal has continued to hold, at least implicitly if not expressly, that section 1170.18 is available to reduce any felony conviction if the facts of the offense match the elements of one of the misdemeanorslisted in section 1170.18, even if the felony conviction is not itself addressed in Proposition 47. (Second Dist. Div. 8, Nov. 13, People v. Romanowski (2015) 242 Cal.App.4th 151 [§ 484e, subd.(d)]; Fourth Dist. Div. Two, Dec. 23, People v. Gomez (2015) — Cal.App.4th ___ [2015 Cal-App. LEXIS 1152] [Veh. Code, § 10851]; Second Dist. Div. Four, Dec. 24, People v. Thompson (2015) — Cal.App.4th _ [2015 Cal.App. LEXIS 1160] [§ 484e, subd. (d)].) | However, other recent decisions have decidedthat the only felony offenses eligible for relief are those expressly listed in section 1170.18 (although this makes no sense as discussed, post). (See Fourth Dist, Div. Two, Oct 23, People v. Page (2015) 241 Cal.App.4th 714; Fourth Dist. Div. One, Nov. 12, People v. Gonzales (2015) 224 Cal.App.4th 35; Second Dist. Div. Five, Nov. 20, People v. Acosta (2015) 242 Cal.App.4th 521; Second Dist. Div. Two, Dec. 2, People v. King (2015) 242 Cal.App.4th 1312; Third Dist., Dec. 30, People v. Haywood (2015) —Cal.App.4th_ [2015 Cal. App. LEXIS 1168].) Review should be granted becausethere are certainly hundreds, and perhaps thousands of defendants like Martinez withfelony convictions for violating Health and Safety Code section 11379 for transporting a small amount of methamphetaminefor personal use. All of these defendants should have been convicted of only a misdemeanorviolation of Health and Safety Code section 11377, according to thelegislative intent behind the January 1, 2014 amendmentof section 11379. Thatlegislative intent, considered together with the intent and purpose of Proposition 47, favors allowing such defendantsto petition for resentencing or apply pursuantto section 1170.18 for reclassification of their felony conviction for transportation of a controlled substance for personal use, even though the conviction has long beenfinal. STATEMENT OF THE CASE On December4, 2007, a jury found Appellant and Petitioner, Mario Martinez, guilty of transportation of methamphetamine (Health & Saf. Code, § 11379), and simple possession of methamphetamine (§ 11377, subd. (a)). (LACT 1-2.)In a bifurcated benchtrial, the court found Martinez had suffered a prior conviction for first degree burglary (§ 459) on December30, 2002, and a prior conviction for attempted robbery (§§ 664/211) on October 14, 1988, as alleged under the Three Strikes law (§ 1170.12). The court also found that Martinez had served fourprior prison terms (§ 667.5, subd. (b)). (LCT 22, LACT 3-4.) . Judgment was pronounced on July 11, 2008. Probation wasdenied. (IRT 27-28.) The court exercised discretion to dismiss the alleged attempted robbery strike in furtherance ofjustice. (IRT 26.) Martinez was ordered to serve an aggregate term of 12 years in prison. (1CT 20-21, IRT 28-29.) On November13, 2014, Martinez filed a petition pursuant to section 1170, seeking modification of the sentence. Pursuant to section 1170.18, Martinez averred that he had no disqualifying prior convictions, and requested reduction of the current conviction on Count2, for simple possession of methamphetamine to a misdemeanor. (1CT 26-28.) Counsel 1. Throughout, “CT”refers to the Clerk’s Transcript and “RT”to the Reporter’s Transcript, while “ACT”refers to the Augmented Clerk’s Transcript in Case No. E063107. appointed to represent Martinezfiled a brief seeking resentencing also on Count1, transportation for personal use, with a memorandum of points and authorities. (LRT 33, LACT 25-31.) The prosecutor filed a response opposing Martinez’s petition, asserting that Martinez wasnoteligible for resentencing on Count |, and resentencing on Count 2 would not changethe aggregate sentence. (1CT 29.) On March 13, 2015, the Court granted Martinez’s petition in part. The conviction for Count 2, simple possession, was reduced to a misdemeanor. The court resentenced Martinez to 365 days in jail to be served concurrent with the prison term. The court rejected Martinez’s argumentin favor of reducing the Count 1 transportation conviction to a misdemeanor. (1CT 31, IRT 35.) Martinez timely filed notice of appeal on March 16, 2015. (1CT 32.) On appeal, Martinez argued that Penal Code section 1170.18, enacted as part of Proposition 47, should be liberally construed to provide post- conviction relief for those convicted of any felony which, if committed after passageof section 1170.18, would be punishable as a misdemeanor. Martinez also argued that the court’s order resentencing Martinez must be modified to stay punishment for count 2. In an unpublished Opinion filed on December 15, 2015, the Court of Appealrejected the primary argumentfor two reasons. First, the Opinion reasonedthat the only felony offenses eligible for relief under section 1170.18, are those convictions for violating the finite set of statutes listed therein. (Opinion, pp. 5-6.) Second, the Opinion concluded that even applying Proposition 47 to the offense committed in 2007, the offense of transportation of methamphetaminefor personal use wouldstill be a felony because the amendment of Health and Safety Code section 11379, making transportation for person use a misdemeanor, did not go into effect until January 1, 2014. (Opinion, pp. 6-7.) The Court of Appeal directed modification of the judgment to stay the misdemeanorsentence on count 2. (Opinion,p. 7.) STATEMENT OF FACTS For purposes ofthis Petition, Martinez adopts the statement of the facts in the Opinion, page 2, setting forth the facts underlying his conviction for possession and transportation of a small amount of methamphetamine. MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF GRANTING REVIEW I Any Felony is Eligible for Relief Under Section 1170.18 So Long as the Facts Underlying the Offense Satisfy the Elements of One of the Enumerated Misdemeanors Requestingrelief under sections 1170.18, subdivision(a), is quite similar to the statutory procedureset forth in section 1170.126. These sections are close statutory cousins. Both specify that they constitute a “post-conviction release proceeding.” (Cf. § 1170.126, subd. (m), § 1170.18, subd. (0).) Therefore, the court must look to the record of conviction, including the appellate opinion, in deciding whetheroffenseis eligible for resentencing. (People v. Hicks (2014) 231 Cal.App.4th 275, 286.) “Whatthe trial court decides is a question of law,i.e., whether the facts in the record of conviction are the proper subject of consideration, and whether they establish eligibility.” (People v. Oehmigen (2014) 232 Cal.App.4th 1, 7.) For these reasons, the facts underlying Martinez’s conviction for transportation of methamphetamineare reviewed to determine whetherthe offense is one of the enumerated misdemeanorsin section 1170.18. 10 A split of authority has developed in the Courts of Appeal on the application of section 1170.18, when the defendant seeksrelief for a felony conviction undera statute that is not expressly listed therein. For instance, Penal Codesection 459 second degree commercial burglary is not listed in section 1170.18. Nevertheless, it has been accepted that as a matter of law a commercial burglary conviction might be eligible for resentencing to shoplifting under section 459.5, enacted as part of Proposition 47, and one of the statutes listed in 1170.18. At least four cases have held that whethera particular felony commercial burglary conviction is eligible to be reduced to misdemeanor shoplift/attempted shoplifting depends on the facts. [T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered “a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours,” and whether “the value of the property that [was] taken or intended to be taken” exceeded $950. (§ 459.5.) (People v. Contreras, supra, 237 Cal.App.4th at p. 892, as quoted in People v. Rivas-Colon, supra, 241 Cal.App.4th 444 [on petition for resentencing, defendant had burdento prove, andfailed to prove the value of hats he took from NFL store on Pier 39 did not exceed $950; the record indicated the value was $1,437.74, rendering him ineligible for resentencing for shoplifting]; see also People v. Sherow, supra, 239 Cal.App.4th 875 [defendant with commercial burglary conviction might be resentenced to misdemeanor shoplifting but only if he satisfy’s a burden to prove the elements of shoplifting in the commission of the offense]; Jn re J.L., supra, 242 Cal.App.4th 1108 [theft of another student’s cell phone from school locker not eligible because schoolis not a commercial establishment].) 11 Onthis side ofthe split of authority this interpretation has been applied to offenses other than commercial burglary. As Martinez maintains, these cases hold that section 1170.18 is available to reduce any felony conviction if the facts of the offense match the elements of one of the misdemeanorslisted in section 1170.18, even if the felony conviction is not itself addressed in Proposition 47. (People v. Gomez, supra, 2015 Cal.App. LEXIS 1152 [Veh. Code, § 10851 may be reducedto a petty theft conviction depending on underlying facts]; People v. Thompson, supra, 2015 Cal.App. LEXIS 1160 [§ 1170.18 eligible for violation of § 484e, subd.(d), grand theft acquisition and retention of access card account information is eligible because it is a form of grand theft with minimal value unless card is used]; People v. Romanowski, supra, 242 Cal.App.4th 151 [accord asto potential eligibility for conviction under § 484e, subd.(d), and remanded for determination of value of property].) However, the same Division from which Sherow originated filed a conflicting decision in People v. Gonzales, supra, 224 Cal.App.4th 35.% The Gonzales decision upheld the denial of the defendant’s petition for resentencing on his commercial burglary conviction on two grounds. First, the court determined that the entry into a bank to commit theft by fraudulently inducing the bank to consensually hand over cash did not amountto larceny, in particular “caption” or taking without consent. Second, the Gonzales decision concluded that there was no authority to resentence persons convicted of crimes other than those expressly enumerated in section 1170.18. Therefore, according to the limited reasoningin that case, all commercial burglary defendantsare ineligible for resentencing to misdemeanorshoplifting punishment. 2. A Petition for Review wasfiled in Gonzales on December 15, 2015, in Case No. 8231171. 12 The latter holding in Gonzales echoed the reasoning from another case addressing in an analogoussituation, where the defendant sought resentencing for a felony conviction for unlawfully taking or driving a vehicle (Veh. Code, § 10851), to petty theft under Penal Code section 490.2, a statute enacted with Proposition 47 andlisted in section 1170.18. (People v. Page, supra, 241 Cal.App.4th 714.)” Page held that a defendant is not entitled to resentencing to petty theft for an offense that satisfies the elements petty theft under newly enacted section 490.2, based on the circumstancesthat (1) Proposition 47 did not amend section 10851, leaving its wobbler status intact and (2) section 10851 is not included among the enumerated sections amended or added by Proposition 47. The Page decision recognized that a violation of section 10851 is a lesser included offense of grand theft auto, which is an offense redefined by Proposition 47 by way of enactment of section 490.2, but disagreed with the defendant’s argumentthat by applying 490.2 to reduce the greater offense, it logically also must apply to reduce the lesser included offense. (Page, supra, at pp. 717-719; see also People v. Acosta, supra, 242 Cal.App.4th 521 [attempted vehicle burglary not eligible for relief under § 1170.18 regardless of underlying facts becauseit is not a “listed” felony]; People v. King, supra, 242 Cal.App.4th 1312 [§ 1170.18 does not apply to violation of § 484e, subd. (d), grand theft acquisition and retention of access card account information becausethat crimeis grand theft regardless of the value of targeted merchandise when card was used]; People v. Haywood, supra, 2015 Cal.App. LEXIS 1168 [Veh. Code, § 10851 may not be reducedto a petty theft conviction regardless of underlying facts].) 3. A Petition for Review wasfiled in Page on November24, 2015, in Case No. 8230793. 13 The Gonzales-Page interpretation, adopted in some form by these morerecent decisions, misapplies the rule of statutory interpretation that inclusion of one indicates an intention to exclude others (expressio unius est exclusio alterius) because limiting resentencingor reclassification of convictions predating section 1170.18 to only those offenses listed therein goes against the express provisions ofsection 1170.18. Section 1170.18 is unambiguous and without need of interpretation. These interpretations also violate the “cardinalrule of statutory construction”to give effect to all words and provisions of a statute and leave no part superfluousor inoperative (see Pham v. Workers’ Comp. Appeals Bd. (2000) 78 Cal.App.4th 626, 634-635), becauseit rendersthe inclusion in section 1170.18, of the new misdemeanoroffenses codified as Penal Code sections 459.5 and 490.2, superfluous, as discussed, post. Review is necessary because, as expressed in section 1170.18, a defendant is eligible to have any “felony” reducedif it would have been one ofthe listed misdemeanors in section 1170.18 had Proposition 47 been in effect whenthe offense was committed. The intent of section 1170.18/Proposition 47 wasto “‘reduce penalties “for certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”’” (7. W. v. Superior Court (2015) 236 Cal.App.4th 646, 652, emphasis added.) Wobblerstatus is therefore irrelevant. Moreover, respectfully, this reasoning in Page also does not appreciate that if reconsidered under Proposition 47, there are two pivotal circumstances which were notexplicitly relevant to the misdemeanorsentencing option (§ 17, subd. (b)) prior to enactmentofthe act, ie., whether the conduct wastheft versus driving, and the value of the value of the vehicle. 14 More problematic, Gonzales, Page, Acosta, King, and Haywoodare wrongin holdingthatthe only felony convictions eligible for relief under section 1170.18, are those that are expressly listed therein. In the case presented for review, consistent with that erroneous interpretation of section 1170.18, the Court of Appeal, Fourth District, Division Two,has again misapplied the rule of statutory construction that inclusion ofoneindicates an intention to exclude others (expressio unius est exclusio alterius). (Opinion, pp. 5-6.) This rule of statutory construction does not apply for two reasons. First, limiting resentencingor reclassification of convictions predating section 1170.18 to only those offenses listed therein goes against the express provisions of section 1170.18, which applies to any “felony,” that would have been a misdemeanor had Proposition 47 been in effectat the time the offense was committed. The only limitations on application of section 1170.18,is that the felony mustsatisfy the elements of one of the listed misdemeanoroffenses. To ascertain the meaningofa statute, a court begins with the express languageofthe statute itself. (Leroy T. v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438.) If the statute is clear and unambiguousonits face, then there is no need for construction and the court should not indulge in it. (People v. Benson (1998) 18 Cal.4th 24, 80.) A court must simply ascertain and declare what the substanceofthestatute is and not “insert whathas been omitted or. . . omit what has been inserted.” (Code Civ. Proc., § 1858.) Where the languageis plain and admits of no morethan one meaning the statute is not ambiguous and the rules which are to aid doubtful meanings need no discussion. (Caminetti v. United States (1917) 242 U.S. 470, 485 [37 S.Ct. 192, 61 L.Ed. 442]; Armstrong v. County ofSan Mateo (1983) 146 Cal.App.3d 597, 610.) 15 Second, the Courts of Appeal in Gonzales, Page, Acosta, King, and Haywoodhaveinterpreted section 1170.18 in a manner whichrenders the act’s inclusion in section 1170.18, of the new Penal Code sections 459.5 and 490.2, entirely superfluous. Proposition 47 enacted these new sections to the Penal Code (459.5 and 490.2) and, from the effective date forward, there would be prosecution and punishmentfor those new offenses. If there wasno intent by the Electorate to allow for retroactive resentencing or reclassification of any other offenses other than those listed in section 1170.18, then section 1170.18 would not have listed sections 459.5 and 490.2. There is no reason to mention those sections unless the retroactive application for relief under section 1170.18 was meant to apply to prior felony offenses that factually amount to these newly created misdemeanor crimes, regardless of the code section of the prior felony conviction. Because the disposition in this case was based in part upon the holding that even though Martinez established the facts underlying his felony conviction for transportation of methamphetaminesatisfied the elements of a misdemeanorlisted in section 1170.18, i.e., Health and Safety Codesection 11377, he would still not be eligible for resentencing on his felony conviction because section 11379 is not listed in section 1170.18, should review be granted in either Page or Gonzales, this Court should also grant review in this case as well. Briefing in this case may be deferred pending resolution of this important question of law. (Rule 8.512(d)(2).) 16 I Allowing Resentencing/Reclassification for Felony Transportation of Methamphetamine for Personal Useis Consistent With the Intents and Purposes of Proposition 47 and Preceding Legislation Amending Section 11379 The Court of Appeal concluded that even applying Proposition 47 to the transportation offense committed in 2007, the offense of transportation of methamphetamine for personal use wouldstill be a felony because the amendment of Health and Safety Code section 11379, making transportation for person use a misdemeanor, did not go into effect until January 1, 2014. (Opinion, pp. 6-7.) Martinez presented a novel argument to the Superior Court, which was rejected, but which is nevertheless meritorious and worthy of review. At the time of Martinez’s 2008 conviction, Health and Safety Code section 11379 prescribed a prison term of two, three, or four years for “every person whotransports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import intothis state, sell, furnish, administer, or give away, or attempts to import into this state or transport,” any controlled substance specified in the statute, including methamphetamine. As a result, prosecutors used that wide range of conduct listed in the former version of the statute to prosecute individuals who were in possession of drugs for only personal use, and whoare not in any way involved in a drug trafficking enterprise. (See, e.g., People v. Emmal (1998) 68 Cal.App.4th 1313, 1316-1317 [transportation of methamphetamineis punishable regardless of quantity or distance traveled, and regardless of whether driver was impaired or possessed the substance for sale]; People v. Lacross (2001) 91 Cal.App.4th 182, 187 [illegal transportation may be effected by bicycle].) 17 Assembly Bill No. 721, passed in 2013, became effective January 1, 2014. (Stats 2013, ch. 504 § 2.) AB 721 amendedthe elementsof section 11379 subdivision (a), felony sales or transportation of a controlled substance, to require proof that defendants like Martinez transportedthe illegal substance have donesofor the purpose ofsales. (§ 11379, subd.(c).) AB 721 explains that 11379 was being modified because the ambiguities in the law “allowed for prosecutors to charge drug users—whoare not in any way involvedin drug trafficking—with TWO crimes for simply beingin possession of drugs.” (2013 California AssemblyBill No. 721, California 2013-2014 Regular Session, Committee Report April 15, 2013 [emphasis in the original].) This ambiguous law applied to Martinez, and he was convicted of both possession and transportation despite a lack of evidence that he was involved in a drugtrafficking enterprise. There is no evidencethatthe small amount of methamphetaminetransported wasfor the purposeofsales. He was charged and convicted of two crimes for simply being in possession of drugs in a moving vehicle. This is demonstrated by the court’s decision pursuantto section 654”at the time judgment was imposedto stay punishmentfor the conviction under 11377. The conduct underlying Martinez’s transportation conviction today would amount to a mere violation of section 11377 which is expressly covered by the Act, and designated as a misdemeanor. Subsequently, Proposition 47 was enacted “‘to ensure that prison spending is focused on violent and serious offenses” andto retain harsher 4. Section 654, subdivision (a), provides in relevant part, that “An act or omissionthat is punishable in different ways by different provisions of law shall be punished underthe 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.” 18 sentences and the cost of implementing those punishments,“for people convicted of dangerous crimes like murder, rape, and child molestation.” (Prop. 47, § 2.) The ballot arguments similarly state its remedial purpose of reducing the population of “California’s overcrowded prisons” and “focus[ing] law enforcement dollars on violent and serious crime while providing new funding for education and crime prevention programsthat will makeusall safer.” (Official Voter Information Guide, Gen. Elec. (Nov. 4, 2014) argument in favor of Prop. 47, p. 38.) The Act should beliberally construed to effectuate its purposes. Section 1170.18 provides: A person currently serving a sentence for a conviction, whetherbytrial or plea, of a felony or felonies who would havebeen guilty of a misdemeanor under the act that addedthis section ("this act") had this act been in effect at the time of the offense maypetition for a recall of sentence before the trial court that entered the judgmentof conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added bythis act. (Ibid., emphasis added.) Underthe current law, transportation for personal use is punishable only as misdemeanorpossession in violation of Health and Safety Code section 11377, which is a misdemeanor underthe Act that added section 1170.18. The Act should be liberally construed to effect its purpose and allow Martinez to proceed on a petition for resentencing of his conviction for violating former section 11379, because the underlying conduct of possession for personal use, is expressly designated to be a misdemeanor under the Act, and because transportation under those circumstances was 19 earlier reduced to a misdemeanorbyvirtue of the additional element of intentto sell being added to section 11379. Therefore, Martinez is a person currently serving a sentence for a conviction that would have been a misdemeanorunder Prop. 47 had the act been in effect at the time ofhis offense. Prop. 47 is presumed to have incorporated AB 721 when it was enacted. Both the Legislature and the electorate are “presumed to be aware of existing laws and judicial construction thereof.” (Un re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) This Court must determine its meaning by construing section 1170.18 in harmony with the nature and obvious purpose ofthe statute. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659; People v. Williams (1992) 10 Cal.App.4th 1389, 1393.) A broad and liberal interpretation is to be applied to effectuate the purposes of the law. (Prop. 47 at §§ 15 [“broadly construed to accomplish its purposes”] & 18 [“‘liberally construed to effectuate its purposes”’].) AB 721 and the Act have the same purpose and intent with regard to reserving felony punishmentto those offenders who possess drugs for purpose ofdrug trafficking, and saving tax dollars previously spent on the prosecution and punishment of those who possession andtransport for personaluse, to be used to deal with more serious offenders. Therefore, this Court is obliged to harmonize these statutes, both internally and with each other. (Dyna-Med, Inc. v. Fair Employment & Housing Com.(1987) 43 Cal.3d 1379, 1387; People v. Caudillo (1978) 21 Cal.3d 562, 585 [statutes relating to the same subject matter should be construed together and harmonizedifpossible]; Cooley v. Superior Court (2002) 29 Cal.4th 228, 248 [same].) The drafters did not have to specify 11379 as an eligible crime because transportation for personal use is now only a violation of 11377. 20 The drafters did not limit resentencing provisions solely to listed crimes but instead limited resentencing provisions to persons currently serving a sentence who would have been guilty of a misdemeanorhadit been in effect at the time of the offense. The question is whether the conduct and facts underlying the offense amount to a misdemeanor underthe Act, rather than the statutory designation of the formerly felony conviction. Because Martinez would only have been guilty of a misdemeanor had AB 721 been in effect when he committed the offense, and the conduct underlyinghis offense is that which is expressly designated as a misdemeanor under the Act, section 1170.18 should be liberally construed to apply to render Martinez eligible for resentencingrelief. 21 CONCLUSION Appellant and Petitioner Mario Martinez respectfully requests this Court exercise its discretion to grant review of the important issues of law to settle a split of authority, and to address a novel issue that is likely to arise in countless other cases. Respectfully submitted, Preeche Sylvia W. Beckham Dated: January 12, 2016 Representing Appellant by appointment of the Court of Appeal under the Appellate Defenders, Inc. independent case system 22 CERTIFICATE OF LENGTH I, Sylvia W. Beckham, counsel for Mario Martinez,certify that the Petition for Review, was produced using 13-point Times New Romantype including footnotes, and the word processing program, WordPerfect, used to generate this brief indicates that the word count for this documentis 4,568 words. Dated: January 12, 2016 Sylvia W. Beckham 23 NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1118(a), prohibits courts and Parties from citingor relying on opinions not certified forpublication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 8.1115. IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT Court of Appeal DIVISION TWO . Fourth Appellate District Division Two ELECTRONICALLYFILED 11:16 am, Dec 15, 2015 THE PEOPLE,. - . By: B. Gonzalez Plaintiff and Respondent, E063 107 V. . (Super.Ct.No. RIF 136990) MARIO MARTINEZ, OPINION Defendant andAppellant. APPEAL from the Superior Court ofRiverside County. Becky Dugan, Judge. Affirmed with directions. Sylvia W. Beckham,under appointmentby the Court of Appeal, for Defendant and Appellant. — Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, MeaganJ. Beale and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION Defendant Mario Martinez appeals from an order denyingin part his petition for resentencing under the Safe Neighborhoods and Schools Act of 2014 (Proposition 47) and Penal Code section 1170.18. He contendsthat Proposition 47 should be construed to provide postconviction relief for those convicted of any felony that would be punishable as a misdemeanorif committed after the passage of Proposition 47 and Penal Code section 1170.18. He further contends that his sentence for possession of methamphetamine shouldbe stayed under Penal Code section 654. The People concede, and we agree, that the sentence for possession of methamphetamine should be stayed. FACTS AND PROCEDURAL BACKGROUND On May19, 2015, we took judicial notice of our unpublished opinion in People v. Martinez (June 22, 2010, E046651). The underlying facts are taken from that opinion. In May 2007, deputies stopped a vehicle in which defendant was a passenger because the monthsticker was not identifiable on the license plate. While the vehicle was being pulled over, defendant leaned forward three or four times. The driver was subsequently arrested on a felony warrant and gave consentto search the vehicle. On the floor mat near defendant’s feet, the deputies found a baggie containing 0.38 grams of methamphetamine. In December 2007, a jury found defendantguilty of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)—count 1) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 2). Thetrial court foundtrue the allegations of four prior prison termsandtwostrike priors. Thetrial court sentenced defendant to an aggregate term of 12 years in state prison, which included staying the sentence for count 2 under Penal Code section 654. Thetrial court thereafter struck a priorstrike after finding, among otherthings, that the quantity of the controlled substance involved was quite small and that defendant’s role in the offense was “rather minor.” In November 2014, defendantfiled a petition under Penal Codesection 1170.18 seeking modification of his sentence. The People conceded that defendant wasentitled to resentencing on count 2 but contended he wasnoteligible as to count 1. Thetrial court reduced defendant’s conviction for simple possession to a misdemeanorbut denied his request to reducehis transportation conviction to a misdemeanor. DISCUSSION Standard of Review When interpreting a voter initiative, “we apply the sameprinciples that govern statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) Wefirst look “to the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We construe the statutory language “in the context of the statute as a whole and the overall statutory scheme.” (/bid.) If the language is ambiguous, welookto “‘other indicia ofthe voters’ intent, particularly the analyses and arguments containedin theofficial ballot pamphlet.’” (/bid.) Proposition 47 and Statutory Amendments On November4, 2014, voters approved Proposition 47, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, amongother statutory provisions, Penal Code section 1170.18. Penal Code section 1170.18 creates a process through which qualified persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically, Penal Code section 1170.18, subdivision (a), provides: “A person currently serving a sentence for a conviction, whetherbytrial or plea, of a felony or felonies who would have been guilty of a misdemeanor under[Proposition 47] that added this section . . . had [Proposition 47] been in effect at the time of the offense maypetition for a recall of sentence before the trial court that entered the judgmentof conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 ofthe Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code,as those sections have been amendedor added by [Proposition 47].” Defendant’s Conviction of Transportation of Methamphetamine A conviction of transportation of a controlled substance under Health and Safety Codesection 11379, subdivision (a), is not an offense specifically addressed in Penal Code section 1170.18, subdivision (a). At the time of defendant’s conviction, courts interpreted Health and Safety Code section 11379 as applying to transportation even for personal use. (E.g., People v. Emmal (1998) 68 Cal.App.4th 1313, 13 16-1317.) However, effective January 1, 2014, the statute was amendedto add the requirement that the transportation be for sale: “For purposesofthis section, ‘transports’. meansto transport for sale.” (Health & Saf. Code, § 11379, subd. (c).) Defendant argues that the conduct underlying his transportation conviction would today amountto a mereviolation of Health and Safety Codesection 11377, which is expressly covered by Proposition 47 and is designated as a misdemeanor. | Under longestablished principles, a statute lessening punishmentis presumedto applyto all cases not yet reducedto final judgment whenthe statute becomeseffective. (In re Estrada (1965) 63 Cal.2d 740, 744-748 (Estrada).) Defendant’s conviction for transportation of methamphetamine under Health and Safety Code section 11379, subdivision (a), was final in 2010; the amendmentto that statute changing the elements of the offense becameeffective on January 1, 2014. Defendant's argument amounts to an attempt to interpret Proposition 47 in such a way as to provide retroactive relief not available under Estrada. However, as noted, Proposition 47 and Penal Codesection 1170.18, subdivision (a), do not specifically list Health and Safety Code section 11379 as a crime to which misdemeanor sentencing now applies. The Legislature’s inclusionof specific statutory sections, but not Health and Safety Code section 11379, showsthe Legislature intended to exclude section 11379. Underthe statutory interpretation canon expressio unius est exclusio alterius, the inclusion ofonething in a statute indicates exclusion of another thing not expressed in the statute. (People v. Whitmer (2014) 230 Cal.App.4th 906, 917-918.) Thus, when the items expressed in a statute are membersof an associated group orseries, a co nclusionis justified that items not mentioned were excluded by deliberate choice, not inad vertence. (The Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1463.) For example, in People v. Gray (1979) 91 Cal.App.3d 545, 551, the court concluded that the legislative inclusion of only four crimesas exceptions to the sen tence enhancement for great bodily injury in the commission of a felony (Pen. Cod e, § 12022.7) demonstrated the legislative intentto exclude other crimes, like atte mpted murder, from the list. When a statutelists specific exemptions, courts may noti nfer additional exemptions in the absenceofa clear legislative intent that such exempt ions are intended. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, superseded byst atute on another groundasstated in Berkeley Hillside Preservationv. City ofBerkele y (2015) 60 Cal.4th 1086, 1107.) We therefore reject defendant’s contention that his co nviction of a violation of Health and Safety Code section 11379, subdivision (a), was eli gible for resentencing. Defendant further arguesthat just as in a proceeding under Penal Codesection 1170.126, the underlying conduct should be examined to determineeligibilit y for resentencing under Penal Codesection 1170.18. The required showing under Penal Code section 1170.18 is whetherthe petitioner “would have beenguilty of a misde meanor under[Proposition 47] had [it] been in effect at the time ofthe offense.” (Pe n. Code, § 1170.18, subd. (a).) If Proposition 47 had been in effect when defendant committed his offense in 2007, he wouldstill be guilty of a felony not covered by Propo sition 47 because the amendmentto Health and Safety Code section 11379 did not go into effect until 2014. Stay of Sentence for Possession of Methamphetamine In resentencing defendantfor his conviction ofpossession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), now designated a misdemeanor,thetrial court imposed a concurrent term. Defendant’s original felony sentence for that offense was stayed under Penal Code section 654. The People concede, and we agree, that the sentence for misdemeanor possession of methamphetamine should likewise be stayed. DISPOSITION Thetrial court is directed to issue an amended abstract ofjudgment and minute order reflecting that defendant’s punishment for misdemeanorpossession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count2)is stayed pursuant to Penal Code section 654, and to forward copies of the amended documentsto the appropriate authorities. In all other respects, the order appealed from is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER J. | Weconcur: i“ HOLLENHORST Acting P.J. | MILLER J, PROOF OF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21 & 8.50.) People v. Mario Martinez, Case No. E063107 I, Sylvia W. Beckham,declare: I am over the age of 18 years and not a party to the case; I am employed in the County of Ventura, California, where the mailing occurs; and my business address is 226 West Ojai Avenue, Suite 101 PMB 529, Ojai, California, 93023-3278. I further declare that I am readily familiar with the businesspractice for collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondenceshall be deposited with the United States Postal Service this same day in the ordinary course of business. On January 12, 2016, I causedto be served the Petition for Review by placing a copythereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Hon. Becky L. Dugan Office of the District Attorney C/O Clerk of the Superior Court County of Riverside Halil of Justice, 4100 Main Street 3960 Orange Street Riverside, CA 92501-3626 Riverside, CA 92501 Mario Martinez. Joshua Knight, Esq. 2847 Donner Way Office of the Public Defender Riverside, CA 93509 4200 Orange Street Riverside, CA 92501 I then sealed each envelope and, with the postage thereon fully prepaid, I placed each for deposit in the United States Postal Service, this same day, at my business address shownabove, following ordinary business practices. PROOF OF SERVICE BY ELECTRONIC SERVICE (Cal. Rules of Court, rules 2.251(i)(1)(A)-(D) &8.71(f(1)(A)-(D).) Furthermore, I, Sylvia W. Beckham,declare I electronically served from my electronic service address of s.beckham@att.net the above-referenced document on January 12, 2016, before 5:00 PM,to the following entities: APPELLATE DEFENDERS, INC., eservice-criminal@adi-sandiego.com CALIFORNIA ATTORNEY GENERAL, ADIEService@doj.ca.gov COURTOF APPEAL, FOURTH APPELLATEDISTRICT, DIVISION TWOvia e-submission I declare under the penalty of perjury under the laws fo the State of California the foregoingis true and correct. Executed on January 12, 2016 YY ul .P>¢0¢ Wr nM