Filed 4/16/18 P. v. MacMillan CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE,

Plaintiff and Respondent,

v.

EVAN MACMILLAN,

Defendant and Appellant.


C082589

(Super. Ct. No. 12F04540)




Defendant Evan MacMillan appeals from the trial court’s denial of his Penal Code section 1170.18 petition for resentencing on his conviction for grand theft of a firearm. (§ 487, subd. (d).) He contends the trial court erred in finding his crime ineligible for relief because theft of a firearm worth $950 or less was a misdemeanor at the time he filed his petition. Agreeing with defendant’s arguments, we will reverse the trial court’s order and remand for further proceedings on defendant’s petition for resentencing.
BACKGROUND
Defendant stole a Mossberg 500 Cruiser 12-gauge shotgun in June 2012. He pleaded no contest to grand theft of a firearm and the trial court sentenced him to eight months in state prison, consecutive to a three-year term for possession of heroin for sale (Health & Saf. Code, § 11351) in another case. The trial court also ordered defendant to pay $307.99 in restitution to the victim of his gun theft.
On October 15, 2015, defendant filed a petition for resentencing on his conviction for theft of a firearm. The People agreed the stolen shotgun had a value of $307.99, but nevertheless claimed defendant did not qualify for relief because his crime was not covered by section 490.2 and granting relief would deprive the People of the benefit of the plea agreement.
The trial court denied the petition on July 19, 2016, finding defendant’s crime was a serious felony and therefore was not one of the crimes covered by Proposition 47.
DISCUSSION
In November 2014, the voters passed Proposition 47, which reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)
Proposition 47 added section 490.2, subdivision (a), which states: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has 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.”
Defendant contends the trial court erred in finding his crime ineligible for relief because theft of a firearm worth $950 or less was a misdemeanor at the time he filed his petition. A Court of Appeal held that theft of a firearm is among the theft crimes covered by section 490.2. (People v. Perkins (2016) 244 Cal.App.4th 129, 133.) In addition, the California Supreme Court held that under Proposition 47, certain types of theft can no longer be charged as grand theft solely based on the type of property involved when the value of the property in question does not exceed $950. (People v. Romanowski (2017) 2 Cal.5th 903, 908.) Relying on Romanowski and Perkins, defendant argues his crime is subject to section 490.2 and is eligible for resentencing.
Nevertheless, the Attorney General points us to Proposition 63. In November 2016, after the trial court’s ruling but before the briefing in this case, the voters passed Proposition 63, The Safety for All Act of 2016. One of Proposition 63’s stated purposes was “[t]o prevent people who are convicted of the theft of a firearm from possessing firearms, and to effectuate the intent of Proposition 47 that the theft of a firearm is felony grand theft, regardless of the value of the firearm, in alignment with Sections 25400 and 1192.7 of the Penal Code.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 63, p. 164 (Voter Information Guide).) Consistent with that purpose, Proposition 63 amended section 490.2 to add subdivision (c), which states: “This section shall not apply to theft of a firearm.” (§ 490.2, subd. (c); Prop. 63, § 11.1; Voter Information Guide, at p. 177.)
Defendant claims Proposition 63 reinforces his position, and points us to the analysis by the Legislative Analyst. We granted defendant’s motion to take judicial notice of the Legislative Analyst’s analysis of Proposition 63. According to the Legislative Analyst, “Under current state law, the penalty for theft of firearms worth $950 or less is generally a misdemeanor punishable by up to one year in county jail. Under this measure, such a crime would be a felony and could be punishable by up to three years in state prison.” (Voter Information Guide, supra, analysis by the Leg. Analyst, at p. 87.) Defendant asserts that “Proposition 63 operated to treat theft of a firearm more harshly in response to Proposition 47 which contained no such distinction.” He concludes the law in effect at the time of his resentencing petition required reducing his conviction from a felony to a misdemeanor.
Defendant additionally argues section 490.2, subdivision (c) does not apply retroactively to his case. As he correctly notes, no part of the Penal Code “is retroactive, unless expressly so declared.” (§ 3.) “It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) Accordingly, “in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209; italics added.)
Defendant asserts there is no such provision in Proposition 63. But the Attorney General directs us to another part of Proposition 63, the ballot arguments. The ballot pamphlet argument by the proponents of the initiative states that Proposition 63 “clarifies existing law so that any gun theft is a felony, ensuring that people who steal guns can’t own guns.” (Voter Information Guide, supra, rebuttal to argument against Prop. 63, at p. 89, italics added.) According to the Attorney General, this statement, when read with the purpose of Proposition 63 to carry out Proposition 47’s intent that all thefts of a firearm are considered grand theft, demonstrates an intent to apply it retroactively to defendant’s petition.
It is true that ballot arguments may be evidence of the voters’ intent. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) But here, where the actual language of Proposition 63 is silent on retroactivity, we decline to apply ballot arguments as the sole basis to impose on defendant a retroactive change in the law.
Because theft of a firearm worth $950 or less was a misdemeanor at the time defendant filed his petition for resentencing, we will reverse the trial court’s order.
DISPOSITION
The trial court’s order is reversed, and the matter is remanded for further proceedings on defendant’s petition for resentencing.



/S/
MAURO, J.



We concur:



/S/
HULL, Acting P. J.



/S/
ROBIE, J.