People v. Buycks

Attorneys

• Richard L. Fitzer, under appointment by the Supreme Court, for Defendant and Appellant Stevenson Buycks.
• Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Defendant and Appellant Stevenson Buycks.
• Steven J. Carroll and Helen Irza, under appointments by the Supreme Court, for Defendant and Appellant Laura Reynoso Valenzuela.
• William J. Arzbaecher III for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant Laura Reynoso Valenzuela.
• Jonathan Grossman, under appointment by the Supreme Court, for Petitioner John Manuel Guiomar.
• Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General, Janill L. Richards, Principal Deputy State Solicitor General, Joshua A. Klein, Deputy State Solicitor General, Samuel P. Siegel, Associate Deputy State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent in No. S231765.
• Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Charles C. Ragland, Scott C. Taylor, Meredith S. White and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent in No. S232900.
• Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share, Seth K. Schalit, Donna M. Provenzano and Amit Kurlekar, Deputy Attorneys General, for Petitioner in No. S238888.
• At the November 4, 2014 General Election, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reclassified as misdemeanors certain offenses that previously were felonies or "wobblers." It also added Penal Code section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors. Section 1170.18 allows those currently serving sentences for Proposition 47 eligible felony convictions to petition to have their sentences recalled and be "resentenced to a misdemeanor." ( § 1170.18, subd. (b).) It also allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions "designated as misdemeanors." ( § 1170.18, subd. (f).) Once an offense is resentenced or redesignated as a misdemeanor it "shall be considered a misdemeanor for all purposes." ( Pen. Code, § 1170.18, subd. (k).)
• We granted review in three cases to resolve similar issues concerning Proposition 47's effect on felony-based enhancements in resentencing proceedings under section 1170.18. In People v. Buycks (S231765), we address whether Proposition 47 requires the dismissal of a two-year sentencing enhancement for committing a felony offense while released on bail for an earlier felony offense (§ 12022.1, subd. (b) ) when that earlier felony offense is reduced to a misdemeanor under section 1170.18. In People v. Valenzuela (S232900), we address whether Proposition 47 requires the dismissal of a one-year sentencing enhancement for having served a prior prison term (§ 667.5, subd. (b) ) when the felony underlying that prior prison term has been reduced to a misdemeanor under section 1170.18. In the third matter, In re Guiomar (S238888), we consider whether Proposition 47 requires the dismissal of a failure to appear for a felony charge under section 1320.5 when the underlying felony has subsequently been reduced to a misdemeanor under the initiative.
• We conclude that Proposition 47's mandate that the resentenced or redesignated offense "be considered a misdemeanor for all purposes" ( § 1170.18, subd. (k) ) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors. As explained below, under some circumstances such challenges may be brought in a resentencing procedure under section 1170.18 ; they may also be brought on petition for writ of habeas corpus, in reliance on the retroactivity principle of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ). In the latter instance, relief is limited to judgments that were not final at the time the initiative took effect on November 5, 2014. We further conclude, however, that those convicted under section 1320.5 cannot obtain similar relief.
• However, in December 2013, Buycks was caught shoplifting at a Home Depot, resisted theft-prevention officers who tried to apprehend him, wielded a knife, escaped in a van, and then was chased by police until his van was rammed to a stop by a police car. Buycks had also abandoned his drug treatment program, and, in late December 2013, the trial court sentenced him to three years in state prison based on his earlier conviction for felony possession of narcotics in case No. BA418285.
• Because he had committed these new felonies while released on his own recognizance on the earlier felony for possession of narcotics, Buycks was also charged in this second case with an on-bail (or released on own recognizance) enhancement under section 12022.1, subdivision (b). That subdivision provides: "Any person arrested for a secondary [felony] offense that was alleged to have been committed while that person was released from custody on a primary [felony] offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court." (§ 12022.1, subd. (b).)
• On August 28, 2014, Buycks entered a negotiated plea of no contest to a single count of petty theft with a prior, a felony, and evading a police officer, also a felony. He admitted he had committed those offenses while released on his own recognizance in the first felony case (§ 12022.1), and that he had served two prior prison terms (§ 667.5, subd. (b) ). He was sentenced that same day to seven years eight months, which included two years for the section 12022.1 enhancement. That judgment became final 60 days later.
• After the voters approved Proposition 47 in the November 4, 2014 General Election, Buycks successfully petitioned for resentencing in case No. BA418285, with the court granting his request to resentence his narcotics conviction to a misdemeanor in early January 2015. He also successfully petitioned under Proposition 47 for resentencing in his case No. NA097755, with the court granting his request to resentence his petty theft with a prior conviction to a misdemeanor in late January 2015. The resentencing court, however, rejected Buycks' argument that his section 12022.1 enhancement no longer applied because the narcotics offense for which he had been released on bail when he committed his Home Depot-related crimes was no longer a felony because of the passage of Proposition 47. The resentencing court reasoned that, at the time Buycks committed his Home Depot-related felonies, his earlier offense was still a felony and that Proposition 47 did not apply to his section 12022.1 enhancement. In resentencing defendant, the court restructured defendant's sentence to make his conviction for felony evading a police officer as the principal term and imposed a full base term of three years, the maximum possible sentence, plus the enhancements for an aggregate sentence of 7 years.
• Buycks appealed the resentencing in this second case, contending that his section 12022.1 enhancement should not have been reimposed by the resentencing court because the narcotics offense for which he had been released on his own recognizance had been resentenced as a misdemeanor. The Court of Appeal agreed, concluding that when Buycks' Proposition 47 petition was granted in his second case, he was "subject to a full resentencing" in that case, and the trial court "was required to reevaluate the applicability of section 12022.1 at that time ."
• In September 2014, a jury in case No. JCF32712 found Valenzuela guilty of carjacking in violation of section 215, subdivision (a), reckless evasion of a peace officer in violation of Vehicle Code section 2800.2, subdivision (a), and possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). Because all three offenses involved a "felony for which a prison sentence or a sentence of imprisonment in a county jail" (§ 667.5, subd. (b) ) could be imposed, these new crimes subjected Valenzuela to a prior felony prison term enhancement for her prior conviction in case No. JCF28616, requiring the court to "impose a one-year term for each prior separate prison term or county jail term imposed ... for any [prior] felony" (ibid .).
• Valenzuela waived her right to a jury trial on her prior felony prison term enhancement allegations under section 667.5, subdivision (b), and the trial court found true an enhancement based on her 2012 receipt of stolen property conviction in case No. JCF28616. As a result, at her sentencing in October 2014, Valenzuela received a one-year consecutive term for the section 667.5, subdivision (b) enhancement, with a total term of six years eight months in prison. She then filed a notice of appeal concerning this second matter.
• After the November 2014 general election, and while her appeal was still pending, Valenzuela successfully petitioned to have her conviction for receipt of stolen property in case No. JCF28616 redesignated as a misdemeanor.
• On appeal, Valenzuela contended that the appellate court should reduce her narcotics offense to a misdemeanor. She further asserted that Proposition 47 required the appellate court to strike her one-year section 667.5, subdivision (b) prior felony prison term enhancement because her 2012 receipt of stolen property conviction in case No. JCF28616 had been reduced to a misdemeanor. The Court of Appeal refused to reduce her narcotics offense to a misdemeanor, stating that she must renew her petition in the trial court, and rejected her argument to strike the enhancement. It noted that at the time Valenzuela was sentenced, her prior conviction was still a felony, and that the purpose of section 667.5 is to punish for recidivist conduct. The Court of Appeal also concluded that nothing in Proposition 47 indicated an intent to retroactively ameliorate the collateral consequences of felonies reduced to misdemeanors.
• We granted Valenzuela's petition for review.
• In March 2014, petitioner John Manuel Guiomar pleaded guilty regarding separate incidents in separate case numbers to felony second degree robbery (§ 211), felony burglary (§ 459), and felony possession of a controlled substance ( Health & Saf. Code, § 11350 ) in case No. SS130616A. Guiomar also pleaded guilty to the crime of failure to appear ( Pen. Code, § 1320.5 ) while on bail for the felony possession of a controlled substance charge in case No. SS131650A. Under section 1320.5, "[e]very person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony." Guiomar's aggregate sentence for all four cases was six years, with the trial court imposing an eight-month term for his section 1320.5 failure to appear conviction, to run consecutive to the other offenses.
• After passage of Proposition 47, Guiomar successfully petitioned for resentencing to reduce both his prior burglary conviction and his prior possession of a controlled substance conviction in case No. SS130616A to misdemeanors. At his May 6, 2015 resentencing hearing, Guiomar was not present but was represented by counsel. Although the resentencing court granted Guiomar's request to reduce both felonies to misdemeanors, it restructured his sentence to again reflect an aggregate sentence of six years by imposing a six-year term for the robbery. The resentencing court did not dismiss the section 1320.5 count for the failure to appear while on a bail for a felony in case No. SS131650A, and it imposed the sentence for that offense as a four-year term concurrent to the term for the other offenses. The clerk's minutes indicate that the trial court resentenced Guiomar "pursuant to stipulation," although it was unclear whether that referred to his original March 2014 plea agreement or a new stipulation entered at the Proposition 47 resentencing. Guiomar unsuccessfully sought reconsideration of his sentence by filing a petition for writ of habeas corpus with the resentencing court.
• Guiomar then filed a petition for writ of habeas corpus with the Court of Appeal, raising sentencing issues and alleging ineffective assistance of counsel at his resentencing hearing. That petition was supplemented by his counsel, raising additional sentencing issues. The Court of Appeal issued orders to show cause on both petitions.
• We granted Guiomar's petition for review.
• First, we will consider the terms of and intent behind the pertinent provisions of Proposition 47, including the significance of Proposition 47's mandate that the felonies reduced under its provisions "shall be considered a misdemeanor for all purposes." ( Pen. Code, § 1170.18, subd. (k).) From this, we conclude that the "misdemeanor for all purposes" provision operates prospectively-by having ameliorative effect on any new collateral consequence imposed after a successful Proposition 47 resentencing. However, because Proposition 47 is a measure designed to ameliorate punishment, the "misdemeanor for all purposes" language also requires felony-based section 667.5 and 12022.1 enhancements to be retroactively stricken, but only with regard to judgments that were not final at the time the initiative took effect.
• Second, we will examine the Attorney General's various arguments contending that Proposition 47 cannot upset felony-based enhancements already imposed, notwithstanding the fact that the underlying felony offense had been reduced to a misdemeanor under the proposition. This review leads us to conclude that Buycks and Valenzuela are entitled to relief under the initiative, but that Guiomar is not, because a section 1320.5 offense is not premised on the conviction status of the felony for which the defendant failed to appear.
• As previously discussed, at the November 4, 2014 General Election, California voters approved Proposition 47. The measure amended portions of the Health and Safety Code and the Penal Code to reclassify certain drug possession and theft-related offenses from felonies or wobblers to misdemeanors, with limited exceptions for those offenders having certain prior convictions that are not relevant in the present matters. ( § 1170.18, subds. (a), (i).) The measure also added sections to the Government Code that assessed the annual savings generated from the act and invested those savings in various crime prevention and treatment programs. ( Gov. Code, §§ 7599 - 7599.2.)
• In addition to its reclassification of certain felonies to misdemeanors, Proposition 47 created procedures to ameliorate convictions for those currently serving a sentence for a qualifying felony, as well as those who have completed their sentences for a qualifying felony, regardless of whether those judgments are final. ( § 1170.18, subds. (a), (f).) These provisions are expressly retroactive in their effect by permitting persons "who would have been guilty of a misdemeanor under" the measure had it "been in effect at the time of the offense" to petition to seek relief. (Ibid .) For those currently serving a sentence for a qualifying felony, Proposition 47 contains a discretionary component under which the resentencing court must assess whether "resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) For those who have completed their sentences for a qualifying felony, the resentencing court, upon receiving an application from a person with a qualifying felony conviction, "shall designate the felony offense or offenses as a misdemeanor." (Id ., subd. (g).)
• Although no provision enacted by Proposition 47 expressly addresses whether the measure has any mitigating effect on felony-based enhancements or a felony failure to appear in which the underlying felony is reduced to a misdemeanor, section 1170.18, subdivision (k), which was enacted by that initiative, is relevant to the issue. That subdivision states, in relevant part, that a "felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes ...." ( § 1170.18, subd. (k).)
• B. Proposition 47 Mitigates the Collateral Consequences of Felony Convictions Reduced to a Misdemeanor for All Purposes
• At issue, in all three of these cases, are the collateral consequences of the reduction received under Proposition 47 on each subsequent offense at issue. Our courts have characterized "the possibility of increased punishment in the event of a subsequent conviction" as "a collateral consequence." ( People v. Crosby (1992) 3 Cal.App.4th 1352, 1355, 5 Cal.Rptr.2d 159, citing Carter v. Municipal Court (1983) 149 Cal.App.3d 184, 190, 196 Cal.Rptr. 751 ; Hartman v. Municipal Court (1973) 35 Cal.App.3d 891, 893, 111 Cal.Rptr. 126.) In all three cases before us now, each criminal litigant received additional punishment based on the circumstance that he or she was originally charged with a felony crime and sentenced as a convicted felon. Even though the resentencing courts had converted each underlying felony conviction to a misdemeanor under Proposition 47, in each matter, the trial court declined to give retroactive relief for any collateral consequence attached to that underlying felony conviction for purposes of the criminal litigant's new sentence.
• But in addition to affording persons the ability to retroactively have their felony convictions be reduced to misdemeanors, Proposition 47, through section 1170.18, subdivision (k), mandates that the reduced conviction "shall be considered a misdemeanor for all purposes ." (Italics added.) Subdivision (k) of section 1170.18, therefore, plainly extends the retroactive ameliorative effects of Proposition 47 to mitigate any future collateral consequence of a felony conviction that is reduced under the measure. And yet, subdivision (k) is silent concerning whether it also retroactively mitigates the already-imposed collateral consequence of a felony conviction that is subsequently reduced under the measure.
• The Attorney General agrees that the phrase "misdemeanor for all purposes" in section 1170.18, subdivision (k) means that those who successfully obtain resentencing of their felony convictions to misdemeanors under Proposition 47 may not be subsequently subject to a felony-based enhancement for that reduced conviction. Instead, the Attorney General argues that voters did not intend for Proposition 47 to retroactively reach back to unravel a felony-based conviction or a felony-based enhancement that had already been imposed before any successful petition for resentencing under section 1170.18, even if that judgment was not final. He contends a resentencing under section 1170.18 has only a forward ameliorative effect on any new collateral consequence that is imposed after a successful Proposition 47 resentencing.
• We disagree. As we will explain, based on established presumptions we apply to measures designed to ameliorate punishment, a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect. In addition, finality aside, a defendant who successfully petitions for resentencing on a current Proposition 47 eligible conviction may, at the time of resentencing, challenge a felony-based enhancement contained in the same judgment because the prior felony conviction on which it was based has since been reduced to a misdemeanor.
• C. The Meaning of the Phrase "Misdemeanor for All Purposes" in Proposition 47
• As discussed above, subdivision (k) of section 1170.18 is silent concerning whether reduced convictions under Proposition 47 must be "considered a misdemeanor for all purposes" retroactively so as to undo the collateral consequences of those convictions that were imposed before the measure took effect. Nevertheless, the fact that the authors of Proposition 47 twice expressly made references to the retroactive effect of the measure in some of its provisions but did not explicitly do so for subdivision (k) of section 1170.18 is significant. "When the Legislature 'has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.' " ( Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576, 273 Cal.Rptr. 584, 797 P.2d 608.) Therefore, if subdivision (k) of section 1170.18 was intended to have the identical broad retroactive effects as the provisions permitting both incarcerated and released persons to petition to have their qualifying felony convictions reduced to misdemeanors, it could have used the same clear retroactive language used in subdivisions (a) and (f). As we will explain, it did not.
• Although subdivision (k) of section 1170.18, unlike other provisions of Proposition 47, contains no provision concerning retroactivity, it also contains no provision categorically precluding its capacity to have any constitutionally permissible retroactive effect. Moreover, this provision is directly connected to other parts of Proposition 47 that premise eligibility for resentencing by looking backward to those persons "who would have been guilty of a misdemeanor under" the measure had it "been in effect at the time of the offense" and allow them to petition to seek relief. ( § 1170.18, subds. (a), (f).) Thus, construing statutory language in the context of the measure as a whole, the "for all purposes" phrase of section 1170.18, subdivision (k) is rooted in an overall scheme that is undeniably intended to have a retroactive effect. This observation is important because Proposition 47 as a whole, including subdivision (k) of section 1170.18, is intended to ameliorate criminal punishment. This invokes a limited rule of retroactivity that applies to newly enacted criminal statutes intended to reduce punishment for a class of offenders.
• Most recently, we concluded that the Estrada rule did not apply to a narrow class of defendants seeking relief under Proposition 47. Specifically, we held that the measure did not entitle defendants who were sentenced before Proposition 47's effective date, but whose judgments were not yet final, to an automatic reduction and resentencing of their felony convictions. These defendants, we held, must instead petition for resentencing under the resentencing provision of section 1170.18, subdivision (a). ( People v. DeHoyos (2018) 4 Cal.5th 594, 229 Cal.Rptr.3d 687, 412 P.3d 368 ( DeHoyos ).)
• This conclusion, we determined, followed from specific provisions within Proposition 47. The resentencing provision of Proposition 47 is not silent concerning the question of retroactivity, but instead expressly provides a resentencing procedure for all "who were 'serving a sentence' for a covered offense as of Proposition 47's effective date." ( DeHoyos , supra , 4 Cal.5th at p. 603, 229 Cal.Rptr.3d 687, 412 P.3d 368, quoting § 1170.18, subd. (a).) We further noted that this language "draws no express distinction between persons serving final sentences and those serving nonfinal sentences, instead entitling both categories of prisoners to petition courts for recall of sentence." ( Id . at p. 603, 229 Cal.Rptr.3d 687, 412 P.3d 368.) We also observed that both the resentencing provision of Proposition 47 and the measure's uncodified declared purpose made evident the intent to make resentencing of all persons serving a sentence for a Proposition 47 eligible offense "dependent on a court's assessment of the likelihood that a defendant's early release will pose a risk to public safety," regardless of the finality of the judgment. ( DeHoyos , at p. 603, 229 Cal.Rptr.3d 687, 412 P.3d 368.) Thus, the Estrada rule of retroactivity had no application to persons serving a sentence for a Proposition 47 eligible offense when the measure took effect because the legislation expressly contained its own retroactivity provision for this class of persons, and it treated this class in the same manner, regardless of the finality of their judgments. In contrast, as enacted by Proposition 47, we agree with defendant Valenzuela that the "for all purposes" provision in section 1170.18, subdivision (k) contains no savings clause indicating that it applies only prospectively, nor does it contain any language indicating that it otherwise limits or subsumes the ordinary presumption long established under the Estrada rule. In fact, unlike the resentencing provision addressed in DeHoyos , the measure does not delineate any particular procedure to govern any relief afforded by section 1170.18, subdivision (k).
• Also, in contrast to the provision we addressed in DeHoyos , the application of the "for all purposes" provision in section 1170.18, subdivision (k) is not restricted by any further judicial evaluation of a defendant's risk of danger to public safety. Instead, the "for all purposes" provision takes effect after the resentencing court, under section 1170.18, subdivision (b), has assessed a defendant's risk of danger to public safety in reducing the sentence for the underlying felony. ( § 1170.18, subd. (k) ["A felony conviction that is recalled and resentenced under subdivision (b) ... shall be considered a misdemeanor for all purposes"].)
• Thus, there is nothing in subdivision (k) that would have signaled to an informed voter that the well-established Estrada rule would not apply. These circumstances confirm that Proposition 47 was intended to broadly mitigate the collateral penal consequences of certain narcotics and larceny-related offenses so that they could be treated as a misdemeanor for all purposes as to "to every case to which it constitutionally could apply." ( Estrada , supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)
• As a result, the reduction of a felony conviction to a misdemeanor conviction under Proposition 47 exists as "a misdemeanor for all purposes" prospectively, but, under the Estrada rule, it can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014. (See People v. Evans (2016) 6 Cal.App.5th 894, 211 Cal.Rptr.3d 761.) This construction comports with another provision of section 1170.18, which explicitly states that "[r]esentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section." ( § 1170.18, subd. (n).) D. Other Contentions Against Any Retroactive Application of Section 1170.18, Subdivision (k)
• 1. Prior interpretations of the phrase "misdemeanor for all purposes" do not preclude relief under the Estrada rule
• The phrase "misdemeanor for all purposes" is also used in section 17, subdivision (b), a provision that describes collateral consequences triggered when a wobbler offense is ultimately sentenced as a misdemeanor. (See § 17, subd. (b) [when the court designates the wobbler as a misdemeanor, "it is a misdemeanor for all purposes"].)
• In Park , supra , 56 Cal.4th 782, 156 Cal.Rptr.3d 307, 299 P.3d 1263, we addressed the significance of the phrase "misdemeanor for all purposes," as used in section 17, subdivision (b), on the application of a felony-based enhancement where the prior underlying felony, a wobbler, had been ultimately sentenced as a misdemeanor. In Park , the defendant had been convicted of attempted voluntary manslaughter and assault with a firearm but he also had a prior conviction of assault with a deadly weapon. By the time the defendant was sentenced for the offenses involving manslaughter, the other court handling the defendant's prior assault with a deadly weapon matter reduced that offense to a misdemeanor under section 17, subdivision (b), and dismissed it after the defendant had successfully completed probation. Under these circumstances, we held that the sentencing court in the manslaughter-related offenses could not impose a five-year enhancement under section 667, subdivision (a), for the defendant having previously been convicted of a serious felony. ( Park , at p. 787, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)
• In reaching this conclusion, we relied on the phrase "misdemeanor for all purposes," as used in section 17, subdivision (b). We reviewed several prior cases and noted that when a trial court reduces an offense to a misdemeanor under section 17, subdivision (b), "the statute generally has been construed in accordance with its plain language to mean that the offense is a misdemeanor 'for all purposes.' " ( Park , supra , 56 Cal.4th at p. 793, 156 Cal.Rptr.3d 307, 299 P.3d 1263, citing People v. Navarro (1972) 7 Cal.3d 248, 271, 102 Cal.Rptr. 137, 497 P.2d 481 [rendering defendant eligible for a drug addiction rehabilitation program normally foreclosed to convicted felons], People v. Hannon (1971) 5 Cal.3d 330, 340, 96 Cal.Rptr. 35, 486 P.2d 1235 [rendering defendant, who had been committed to the California Youth Authority, ineligible to be sentenced to state prison], People v. Marshall (1991) 227 Cal.App.3d 502, 504-505, 277 Cal.Rptr. 846 [precluding the imposition of a five-year section 667, subdivision (a), enhancement for prior serious felony in a subsequent criminal proceeding].) But in Park , we further commented that a defendant previously convicted of a wobbler felony offense "would be subject to the [felony-based] enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." ( Park , supra , 56 Cal.4th at p. 802, 156 Cal.Rptr.3d 307, 299 P.3d 1263, italics added.) The Attorney General emphasizes this, and also cites our decision in People v. Feyrer (2010) 48 Cal.4th 426, 106 Cal.Rptr.3d 518, 226 P.3d 998 concerning the effect of a court's decision to sentence a defendant to a misdemeanor under section 17, subdivision (b). There, we stated, "If ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively ." ( Feyrer , at p. 439, 106 Cal.Rptr.3d 518, 226 P.3d 998, italics added; see also People v. Banks (1959) 53 Cal.2d 370, 381-382, 1 Cal.Rptr. 669, 348 P.2d 102 [stating that a wobbler reduced under section 17 is considered a misdemeanor for all purposes thereafter, but not retroactively].)
• The Attorney General relies on these cases to conclude that the meaning of the phrase "misdemeanor for all purposes" is similarly limited under Proposition 47 such that the criminal litigants in the present matters cannot benefit any further from Proposition 47 because they were all convicted of their subsequent offenses and enhancements before having their underlying felonies reduced to misdemeanors. He claims that when the voters approved Proposition 47, the electorate was presumably aware of this judicial interpretation, and must have intended the same result here.
• Thus, here the "for all purposes" effect of the reduction of the underlying felony conviction to a misdemeanor under Proposition 47 is rooted in legislation intended to reform the needs of the criminal law by reducing penalties with respect to particular criminal offenses. This is unlike the circumstances in Park and Feyrer , where a section 17 sentencing determination merely serves to mitigate punishment for the unique circumstances of a single individual.
• As a result, viewing section 1170.18, subdivision (k) in context of the purposes of Proposition 47, we see no reason why our prior interpretation of the phrase "misdemeanor for all purposes" in the context of section 17 forecloses the application of the Estrada rule.
• We rejected a similar argument in Park . There, we observed that "[w]hen the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that the felony punishment, and its consequences , are not appropriate for that particular defendant." ( Park , supra , 56 Cal.4th at p. 801, 156 Cal.Rptr.3d 307, 299 P.3d 1263, italics added.) Indeed, "one of the 'chief' reasons for reducing a wobbler to a misdemeanor 'is that under such circumstances the offense is not considered to be serious enough to entitle the court to resort to it as a prior conviction of a felony for the purpose of increasing the penalty for a subsequent crime.' " ( Id . at p. 794, 156 Cal.Rptr.3d 307, 299 P.3d 1263, quoting In re Rogers (1937) 20 Cal.App.2d 397, 400-401, 66 P.2d 1237.) The same logic applies here. In directing that a qualifying conviction be treated as a misdemeanor "for all purposes," Proposition 47 fairly contemplated the consequences of this redesignation on associated enhancements like those under sections 667.5 and 12022.1.
• Moreover, the fact that Proposition 47 did not expressly mention recidivist offenders does not mean that voters intended to deny those resentenced under the measure any further mitigation of their punishment stemming from the collateral consequences of their original felony conviction. The information given to voters stated that the "measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes" and would allow "certain offenders who have been previously convicted of such crimes to apply for reduced sentences." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) More specifically, it states that "the measure reduces the penalties for the following crimes"-listing grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession. (Id . at p. 35, italics added; id . at p. 36.)
• This emphasis on reduced penalties for these narcotics and larceny-related offenses extends logically to enhancements and subsequent offenses connected to those offenses. From these particular statements in the ballot materials for Proposition 47, it follows that a reduced penalty for a crime that had previously been classified as a felony would include a penalty that takes the form of an enhancement or other recidivist-based punishment that was alleged with that same felony.
• In fact, as previously observed (ante , fn. 6), section 1170.18, subdivision (k) contains an exception stating that "resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm" or prevent a conviction under provisions prohibiting certain narcotics offenders from possessing firearms. This single exception to the collateral effect of Proposition 47's resentencing provisions further suggests that the measure's mandate to reduce penalties for a distinct class of narcotics and larceny-related offenses otherwise fully extends to enhancements and subsequent offenses alleged with those offenses. ( Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537 [under the canon of statutory construction of expressio unius est exclusio alterius , "where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed," absent "a discernible and contrary legislative intent"].)
• Additionally, extending the ameliorative effects of felony convictions reduced to misdemeanor convictions under Proposition 47 to enhancements and subsequent offenses derived from those convictions-at least when the judgments involving these felony-based enhancements are not yet final for purposes of Estrada -is consistent with the measure's goal to generate savings to be invested into various crime prevention and treatment programs. (See Gov. Code, §§ 7599 - 7599.2.) As previously explained, the measure allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions "designated as misdemeanors." ( § 1170.18, subd. (f).) Permitting defendants to ameliorate, under Estrada , their nonfinal judgments involving felony-based enhancements and felony-based offenses grounded on those reduced offenses would generate cost savings by reducing the incarceration terms for those offenders.
• Turning to the specific enhancements and convictions before us, first, as to nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, we conclude that Proposition 47 and the Estrada rule authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure. In sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) is applied "for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony." (§ 667.5, subd. (b).) However, the enhancement contains a "washout" exception and does not apply with regard to "any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Ibid .) Thus, "if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply." ( People v. Fielder (2004) 114 Cal.App.4th 1221, 1229, 8 Cal.Rptr.3d 247.)
• On its face, section 667.5, subdivision (b) does not expressly state that a prior felony conviction is required. But the provision's reference to a prior "prison term" necessarily must subsume the existence of a prior felony conviction that justified the imposition of that prison term. Thus, in describing the elements required for the imposition of a section 667.5, subdivision (b) enhancement, we have stated it "requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ( People v. Tenner (1993) 6 Cal.4th 559, 563, 24 Cal.Rptr.2d 840, 862 P.2d 840.)
• With this understanding, the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant's previous felony conviction to a misdemeanor conviction because the defendant "would have been guilty of a misdemeanor under" the measure had it "been in effect at the time of the offense." ( § 1170.18, subds. (a), (f).) Therefore, if the "felony conviction that is recalled and resentenced ... or designated as a misdemeanor" conviction becomes "a misdemeanor for all purposes," then it can no longer be said that the defendant "was previously convicted of a felony" ( People v. Tenner , supra , 6 Cal.4th at p. 563, 24 Cal.Rptr.2d 840, 862 P.2d 840 ), which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, "for all purposes," it can only be said that the defendant was previously convicted of a misdemeanor.
• Section 12022.1 defines the felony for which the defendant had been released from custody on bail or on own recognizance as the "primary offense," and the new felony committed while on release as the "secondary offense." (§ 12022.1, subd. (a).) "Section 12022.1 does not make the defendant's conviction of the primary offense an element of the enhancement for the purpose of proving the enhancement," but there must be "proof of conviction of the primary offense before the enhancement can be imposed ." ( People v. Smith (2006) 142 Cal.App.4th 923, 935, 48 Cal.Rptr.3d 378, italics added.) Thus, a section 12022.1 enhancement allegation can be found true if the defendant committed a secondary offense while released from custody for the primary offense and is convicted of the secondary offense. But the imposition of the section 12022.1 enhancement must be stayed until the defendant is also convicted of the primary offense. (§ 12022.1, subd. (d).) Moreover, "[i]f the person is acquitted of the primary offense[,] the stay shall be permanent." (Ibid .; see also In re Jovan B. (1993) 6 Cal.4th 801, 809, 25 Cal.Rptr.2d 428, 863 P.2d 673.) Consequently, section 12022.1 is a unique enhancement that, even if found true, cannot be imposed until the defendant is convicted of both the prior felony and the new felony committed while released on bail. ( In re Jovan B. , at p. 809, 25 Cal.Rptr.2d 428, 863 P.2d 673 ; People v. McClanahan (1992) 3 Cal.4th 860, 869, 12 Cal.Rptr.2d 719, 838 P.2d 241.)
• The effect of these circumstances means that if Proposition 47 can reach back and reduce to a misdemeanor the record of conviction for the primary offense, and that conviction becomes "a misdemeanor for all purposes," then the attached section 12022.1 enhancement in a nonfinal judgment remains intact but its two-year term must be struck and permanently stayed. In contrast, if Proposition 47 can reach back and reduce to a misdemeanor the record of conviction for the secondary offense, and that conviction becomes "a misdemeanor for all purposes," then the attached section 12022.1 enhancement in a nonfinal judgment must be dismissed entirely.
• A very different result, however, must govern the effect of Proposition 47 on convictions for the section 1320.5 offense of failing to appear while released on bail. Under section 1320.5, "[e]very person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony." ( § 1320.5, italics added.) Under a plain reading of the statute, a section 1320.5 conviction does not require the bail jumper's felony charge to have resulted in a felony conviction . This defeats petitioner Guiomar's claim for relief under Proposition 47. The measure mandates that a "felony conviction that is recalled and resentenced ... or designated as a misdemeanor ... shall be considered a misdemeanor for all purposes ...." ( § 1170.18, subd. (k), italics added.) Proposition 47, therefore, ameliorates the collateral effects of felony convictions, not the collateral effects of felony charges.
• Our case law supports this interpretation of section 1320.5. In People v. Walker (2002) 29 Cal.4th 577, 128 Cal.Rptr.2d 75, 59 P.3d 150 ( Walker ), a majority of this court concluded that a failure to appear on a felony charge under section 1320.5 can also be the basis of a section 12022.1 enhancement for committing a new felony offense while released from custody for the original felony offense. Although in Walker we were not confronted with a scenario in which the underlying felony charge is ultimately reduced to a misdemeanor, we discussed the apparent different legislative purposes behind sections 1320.5 and 12022.1 and rejected the contention that the application of both would constitute improper double punishment. ( Walker , at pp. 588-589, 128 Cal.Rptr.2d 75, 59 P.3d 150.)
• In so doing, a majority of this court explained that sections 1320.5 and 12022.1 serve different purposes. The majority observed that the primary purpose of section 1320.5 is to deter the act of jumping bail and that it requires punishment "whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered." ( Walker , supra , 29 Cal.4th at p. 583, 128 Cal.Rptr.2d 75, 59 P.3d 150.) This is in contrast to the extended purpose for imposing a section 12022.1 enhancement, which not only deters bail jumping, but further targets recidivist offenders by requiring convictions for both the primary felony offense for which the defendant was released on bail as well as for the secondary felony offense the defendant committed while released on bail. We recognized that the recidivist focus of section 12022.1, in requiring convictions for both offenses, reflected such offenders "as being particularly deserving of increased punishment for their on-bail recidivism" and as being "more blameworthy than defendants who willfully fail to appear for felony charges that ultimately are dismissed or reduced, or result in acquittal." ( Walker , at p. 584, 128 Cal.Rptr.2d 75, 59 P.3d 150.)
• Thus, considering that a section 1320.5 conviction does not require the bail jumper's felony charge to have resulted in a felony conviction, or in any conviction at all, the fact that Guiomar successfully petitioned to have his narcotics offense reduced to a misdemeanor under Proposition 47 did not have any collateral effect on his section 1320.5 conviction. Under section 1170.18, subdivision (k), Guiomar's "felony conviction" for his narcotics offense became "a misdemeanor for all purposes," but that did not alter the fact that he had been charged with a felony when he failed to appear while on bail for that felony charge. Accordingly, under these circumstances, Guiomar's conviction for section 1320.5 does not qualify for resentencing under Proposition 47.
• F. Resentencing Procedures for Proposition 47 Related Enhancements
• As we have previously noted, nothing in Proposition 47 expressly provides a mechanism for recalling and resentencing a judgment because a prior underlying felony conviction supporting an enhancement in that judgment has been reduced to a misdemeanor. Instead, Proposition 47's procedures focus on the resentencing and redesignation of felony convictions and not the resentencing, redesignation, or dismissal of enhancements or other crimes predicated on the existence of a prior felony.
• Accordingly, because Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected by the reduction of a conviction to a misdemeanor in a separate judgment, we will describe other available procedural mechanisms to strike such enhancements.
• We have held that when part of a sentence is stricken on review, on remand for resentencing "a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances." ( People v. Navarro (2007) 40 Cal.4th 668, 681, 54 Cal.Rptr.3d 766, 151 P.3d 1177, citing People v. Burbine (2003) 106 Cal.App.4th 1250, 1259, 131 Cal.Rptr.2d 628 ["upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed, including the term imposed as the principal term"].)
• In People v. Buycks (S231765), the Court of Appeal properly recognized this rule, even though defendant's conviction became final just over a week before Proposition 47 took effect. (See § 1237.5; Cal. Rules of Court, Rule 8.308(a).) When the trial court conducted a full resentencing of defendant in the present matter for his Proposition 47 eligible petty theft with a prior conviction, the Court of Appeal explained, "it was required to reevaluate the applicability of section 12022.1at that time ," considering the fact that his primary offense conviction had become a misdemeanor conviction. Thus, notwithstanding the Estrada rule, a person may petition for recall of his or her current sentence under section 1170.18, subdivision (a), upon which the trial court, when it resentences on the eligible felony conviction, must also resentence the defendant generally and must therefore reevaluate the continued applicability of any enhancement based on a prior felony conviction.
• This application of the full resentencing rule to an otherwise final judgment is also consistent with section 1170.18, subdivision (n), which states: "Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section." (Italics added.) This subdivision emphasizes that, when a final judgment in a case cannot be opened for resentencing under the procedures created by section 1170.18, the judgment remains final even if it contains a prison prior enhancement or an on-bail enhancement as to which the underlying felony has been reduced to a misdemeanor. But section 1170.18 's exception to this rule of finality applies not only to individual counts, but to the entire case in which the judgment contains at least one felony conviction qualifying for reduction to a misdemeanor under the resentencing procedures of Proposition 47.
• Although her judgment was not final when Proposition 47 took effect, in People v. Valenzuela (S232900), defendant is also in a similar procedural posture in being able to claim, in conjunction with a Proposition 47 resentencing petition for her conviction for possession of methamphetamine, that her section 667.5 enhancement should be dismissed.
• Therefore, at the time of resentencing of a Proposition 47 eligible felony conviction, the trial court must reevaluate the applicability of any enhancement within the same judgment at that time , so long as that enhancement was predicated on a felony conviction now reduced to a misdemeanor. Such an enhancement cannot be imposed because at that point the reduced conviction "shall be considered as a misdemeanor for all purposes." ( § 1170.18, subd. (k).) Under these limited circumstances, a defendant may also challenge any prison prior enhancement in that judgment if the underlying felony has been reduced to a misdemeanor under Proposition 47, notwithstanding the finality of that judgment.
• 2. Petition for writ of habeas corpus
• We also conclude that the collateral consequences of Proposition 47's mandate to have the redesignated offense "be considered a misdemeanor for all purposes" can properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect.
• The relief we discuss here, under the "misdemeanor for all purposes" language of section 1170.18, subdivision (k), is an ameliorative provision distinct from the ameliorative provisions of subdivisions (a) and (f) of the same statute which provide express mechanisms for reducing felony convictions to misdemeanors. The effect of section 1170.18, subdivision (k), constitutes an ameliorative change to the laws governing the imposition of felony-based enhancements and other collateral consequences, as opposed to an ameliorative change to the law under which the original felony conviction was had. A petition for habeas corpus seeking to vacate a section 667.5 prior prison term enhancement on the ground that it is based on a prior felony theft conviction that has since been reduced to a misdemeanor, for example, would be invoking Estrada not to establish the initiative's ameliorative effect on the prior theft conviction, but to show that section 1170.18, subdivision (k) has some retroactive effect to the extent permitted under Estrada .
• Finally, we note that nothing in Proposition 47 precludes the availability of a petition for writ of habeas corpus as an appropriate avenue to seek relief in such cases.
• In People v. Buycks (S231765), the Court of Appeal correctly concluded that because the narcotics offense for which Buycks had been released on his own recognizance had been reduced to a misdemeanor it was to "be considered as a misdemeanor for all purposes" under section 1170.18, subdivision (k). When Buycks' Proposition 47 petition was granted in his second case, the trial court was obligated to sentence defendant anew in that case and to reevaluate the applicability of the section 12022.1 enhancement at that time. The Court of Appeal correctly concluded that the enhancement could not be reimposed and should be stricken in light of section 1170.18, subdivision (k). Accordingly, the judgment of the Court of Appeal in People v. Buycks (S231765) is affirmed.
• In People v. Valenzuela (S232900), the Court of Appeal held that, despite defendant's successful petition to have her underlying felony reduced to a misdemeanor under Proposition 47, that measure did not relieve her of the one-year section 667.5, subdivision (b) prior felony prison term enhancement. As discussed above, however, section 1170.18, subdivision (k), may affect the validity of enhancements when the underlying felony has been reduced under Proposition 47. Because Valenzuela's judgment in case No. JCF32712 was not final when Proposition 47 took effect, the Estrada rule applies to strike her section 667.5, subdivision (b) prior felony prison term enhancement. Alternatively, because it appears that Valenzuela has a Proposition 47 eligible conviction in case No. JCF32712, if the resentencing court grants her petition to reduce that conviction to a misdemeanor, the court must resentence her anew in that case, and it will be required to reevaluate the applicability of the section 667.5 enhancement at that time. Accordingly, the judgment of the Court of Appeal is reversed and remanded for proceedings consistent with this opinion.