Filed 6/28/16 P. v. Johnson CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B264679
                                                                          (Super. Ct. Nos. F334169,
     Plaintiff and Respondent,                                           F352789, F379456, F416886)
                                                                          (San Luis Obispo County)
v.

RYAN JAMES JOHNSON,

     Defendant and Appellant.


                   The issue here concerns the proper construction of the word "prior" in
Penal Code section 1170.18, subdivision (i) (hereafter "subdivision (i)").1 Section
1170.18 was enacted in November 2014 by the passage of Proposition 47, also known as
the Safe Neighborhoods and Schools Act. Section 1170.18, subdivisions (f) and (g)
permit certain convicted felons who have completed their sentences to apply to have their
felony convictions designated as misdemeanors. Subdivision (i) states that section
1170.18 "shall not apply to persons who have one or more prior convictions" for
specified serious or violent felonies, including murder. (Italics added.)2 The question is

1
    All statutory references are to the Penal Code unless otherwise stated.
2
 The full text of subdivision (i) is as follows: "The provisions of this section [section
1170.18] shall not apply to persons who have one or more prior convictions for an
offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section
290."
whether "prior" means prior to the felony conviction that the applicant is seeking to have
designated as a misdemeanor, or prior to the court's ruling on the application.
               We conclude that "prior" means prior to the court's ruling on the
application. We affirm the trial court's order denying appellant's application to have his
felony convictions designated as misdemeanors because he was convicted of murder
prior to the trial court's ruling on the application. It is of no consequence that the murder
conviction occurred after the felony convictions that he sought to have designated as
misdemeanors.
                                   Procedural Background
               In January 2015, appellant filed an application requesting that four felony
convictions be designated as misdemeanors pursuant to section 1170.18, subdivisions (f)
and (g). The felony convictions occurred in 2003 (case no. F334169), 2005 (case nos.
F352789 and F379456), and 2008 (case no. F416886). The District Attorney responded
that appellant is ineligible for the requested relief because he was convicted of murder in
case no. F435613. The murder conviction occurred after the felony convictions that
appellant sought to have designated as misdemeanors. In 2013 we affirmed the murder
conviction. (People v. Johnson (2013) 221 Cal.App.4th 623.) The trial court denied the
application.
                                          Discussion
               Appellant claims that the trial court erroneously denied his application for
designation as misdemeanors. He argues that he was eligible for the requested relief
because his murder conviction occurred after the subject convictions.
               Where, as here, a matter of statutory construction is involved, "our task is to
discern the lawmakers' intent. [Citation.] Because section [1170.18] was enacted by the
electorate, it is the voters' intent that controls. [Citation.] Nonetheless, our interpretation
of a ballot initiative is governed by the same rules that apply in construing a statute
enacted by the Legislature. [Citations.] We therefore first look to 'the language of the
statute, affording the words their ordinary and usual meaning and viewing them in their
statutory context.' [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 796.) "'When the

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language is ambiguous, "we refer to other indicia of the voters' intent, particularly the
analyses and arguments contained in the official ballot pamphlet." [Citation.]'
[Citation.]" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.)
              The term "prior" in subdivision (i) is ambiguous. The ambiguity is "cured"
by the Legislative Analyst's comments on Proposition 47 in the Official Voter
Information Guide for the November 4, 2014 general election. The Legislative Analyst
made clear that "prior" means prior to the court's ruling on an application to have a felony
conviction designated as a misdemeanor: "This measure [Proposition 47] allows
offenders currently serving felony sentences for the above crimes to apply to have their
felony sentences reduced to misdemeanor sentences. In addition, certain offenders who
have already completed a sentence for a felony that the measure changes could apply to
the court to have their felony conviction changed to a misdemeanor. However, no
offender who has committed a specified severe crime [e.g., murder] could be resentenced
or have their conviction changed." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014),
Prop. 47, Analysis by Legislative Analyst, p. 36, italics added.) Thus, it makes no
difference whether appellant was convicted of murder before or after the felony
convictions that he sought to have designated as misdemeanors. Appellant was ineligible
for relief because, when the trial court ruled on his application, he had a prior conviction
for murder.
              "The Legislative Analyst's comments, like other materials presented to the
voters, 'may be helpful but are not conclusive in determining the probable meaning of
initiative language.' [Citation.] Thus, when other statements in the election materials
contradict the Legislative Analyst's comments we do not automatically assume that the
latter accurately reflects the voters' understanding. [Citation.]" (San Francisco
Taxpayers Assn. v. Bd. of Supervisors (1992) 2 Cal.4th 571, 580.) Nothing in the election
materials for Proposition 47 contradicts the Legislative Analyst's conclusion that "no
offender who has committed a specified severe crime could be resentenced or have their
conviction changed." (See People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78,



                                              3
82 [Legislative Analyst's comment "eliminates doubt" as to correct interpretation of
ballot proposition].)
              Moreover, the rebuttal to the argument against Proposition 47 made clear
that a person who has been convicted of murder cannot seek relief under section 1170.18
regardless of when the conviction occurred: "Proposition 47 does not require automatic
release of anyone. There is no automatic release. It includes strict protections to protect
public safety and make sure rapists, murderers, molesters and the most dangerous
criminals cannot benefit." (Voter Information Guide, supra, Rebuttal to Argument
Against Prop. 47, p. 39.)
              Finally, section 2 of Proposition 47 provides, "This act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed." (Voter Information Guide, supra, Text of Proposed Law:
The Safe Neighborhoods and Schools Act, § 2, p. 70.) Section 3, subdivision (1) of
Proposition 47 includes a similar provision: "In enacting this act, it is the purpose and
intent of the people of the State of California to: [¶] (1) Ensure that people convicted of
murder, rape, and child molestation will not benefit from this act." (Id., § 3, subd. (1), p.
70.) Were we to adopt appellant's interpretation of "prior conviction" in subdivision (i),
people like appellant who had been convicted of murder would benefit from Proposition
47. This would be contrary to the intent of the electorate. "'[W]e may not properly
interpret the measure in a way that the electorate did not contemplate: the voters should
get what they enacted, not more and not less.' [Citation.]" (People v. Park, supra, 56
Cal.4th at p. 796.)
              Our interpretation of "prior conviction" in subdivision (i) is consistent with
People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 ["the 'prior conviction'
ineligibility for relief means a disqualifying conviction that occurred any time before the
filing of the application for Proposition 47 relief"]. It is also consistent with People v.
Montgomery (2016) 247 Cal.App.4th 1385, 1392 ["section 1170.18 precludes
redesignation for anyone who has a conviction for the enumerated excluded crimes prior
to the time of the application for such relief"].

                                               4
                                      Disposition
             The order denying appellant's application to designate felony convictions as
misdemeanors pursuant to section 1170.18 is affirmed.
             NOT TO BE PUBLISHED.



                                                        YEGAN, J.


We concur:



             GILBERT, P. J.



             PERREN, J.




                                           5
                                Michael L. Duffy, Judge

                       Superior Court County of San Luis Obispo

                           ______________________________


             Laini Millar Melnick, under appointed by the Court of Appeal, for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General,
for Plaintiff and Respondent.
