Filed 4/28/17 P. v. Thornton CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TROY DEVLIN THORNTON,
Defendant and Appellant.
F071626
(Super. Ct. No. F14902504)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee
Whitehead, Judge.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Detjen, Acting P.J., Franson, J. and Peña, J.
2
On June 10, 2014, appellant Troy Devlin Thornton pled no contest to one count of
violation of Penal Code section 530.5, subdivision (a),1
identify theft, and admitted three
prior prison term enhancements. (Case No. F14902504.) On July 11, 2014, the trial
court sentenced appellant to an aggregate term of six years, consisting of the upper term
of three years plus one year for each of the three admitted prison prior enhancements.
On November 26, 2014, appellant filed a petition for resentencing pursuant to
Proposition 47 (§ 1170.18) seeking to reduce his felony conviction in case
No. F14902504 (the pending case) and case No. F12902103 to misdemeanors. On
March 23, 2015, the court granted the request as to case No. F12902103 and denied the
request as to case No. F14902504.
On April 27, 2015, appellant filed a second petition for resentencing pursuant to
Proposition 47 stating that one of the Madera County cases that was used to enhance his
sentence in case No. F14902504 had been reduced to a misdemeanor and requested that
his case be recalled. It does not appear that appellant included documentation to support
this claim.
The trial court summarily denied the petition as moot, stating, “[r]elief was
previously denied on [March 23, 2015],” apparently referring to the denial of the earlier
request to reduce petitioner’s 2014 conviction for identity theft (case No. F14902504) to
a misdemeanor.
Appellant filed a timely notice of appeal.
On January 27, 2016, appellate counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436.
On October 6, 2016, this court issued the following order:

1 All further statutory references are to the Penal Code.
3
“This appeal is currently under review pursuant to People v. Wende
(1979) 25 Cal.3d 436. The trial court summarily denied appellant’s
‘Petition for Resentencing’ pursuant to Penal Code section 1170.18, filed
on April 27, 2015, on the ground ‘Relief was previously denied on
March 23, 2015.’ (See CT 20-23.) It appears, however, that the stated
basis for the April 27, 2015, petition was not previously considered by the
trial court, to wit, whether appellant is entitled to resentencing on Fresno
Superior Court case No. F14902504 and/or Fresno Superior Court case
No. F12902103 due to the alleged reduction of Madera County Superior
Court case No. MCR019455 to a misdemeanor.
“The parties are directed to brief the issue of whether the trial court
was required to consider the issue raised by appellant in his April 27, 2015,
‘Petition for Resentencing’ and if so, what relief is appropriate. Briefs may
be in letter form. Appellant’s counsel on appeal is directed to file a brief
addressing these issues, and any related points, within 30 days from the
date of this order. Respondent’s brief addressing these issues, and any
related points, is due 30 days after appellant’s brief is filed. Appellant’s
reply brief is due 15 days after respondent’s brief is filed.”
Appellant filed a supplemental brief claiming the trial court should have
conducted a resentencing hearing in case No. F14902504 to strike appellant’s
section 667.5, subdivision (b) prison prior based on the now misdemeanor conviction in
case No. MCR019455. Appellant asserts that Proposition 47, which states, “[a]ny felony
conviction that is recalled and resentenced under subdivision (b) or designated a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes,”
with the exception related only to possession of firearms, is fully retroactive. The People,
in turn, assert that nothing in section 1170.18 authorizes a trial court to vacate a prior
prison term that was used to enhance a sentence imposed on a subsequent ineligible
offense.
DISCUSSION
The record reflects the trial court did not rule on appellant’s claim that his Madera
County conviction that had been reduced to a misdemeanor may no longer support prior
4
prison term allegations under section 667.5, subdivision (b). However, it would serve no
purpose to remand this case to the trial court to permit the court to do so.
Proposition 47 provides that persons who have completed felony sentences for
offenses that would now be misdemeanors under Proposition 47 may file an application
with the trial court to have their felony convictions “designated as misdemeanors.”
(§ 1170, subd. (f).) Subdivision (k) of section 1170.18, provides in pertinent part: “Any
felony conviction that is … designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes, except that such resentencing shall not permit
that person to own, possess, or have in his or her custody or control any firearm or
prevent his or her conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6.”
We find nothing in the language of Proposition 47 indicating that subdivision (k)
of section 1170.18 was intended to have the retroactive collateral consequences urged by
appellant. Proposition 47 contains no provision declaring it automatically retroactive.2
“Proposition 47 has retroactive effect only to the extent section 1170.18 provides a
procedure to petition for reclassification or resentencing.” (People v. Jones, supra, at
p. 229.) Proposition 47 has no mechanism to permit a trial court to strike an
enhancement attached to a noneligible conviction, such as appellant’s identity theft
conviction. “Absent express language in section 1170.18 allowing the redesignation,
dismissal, or striking of past sentence enhancements, we cannot infer voters intended the

2 We note that several cases addressing this issue have been granted review. (E.g.,
People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901;
People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539;
People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011;
People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; and
People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016,
S232900.)
5
Act to apply retroactively to past sentence enhancements.” (People v. Jones, supra, at
p. 230.)
DISPOSITION
The order denying appellant’s motion to strike his four prior prison term
enhancements (§ 667.5, subd. (b)) is affirmed.
Appellant’s request for judicial notice is granted.