Probationer is “serving a sentence” for purposes of Proposition 47 and is therefore subject to its resentencing provisions, including the firearms ban. Bastidas pleaded guilty to felony possession of a controlled substance. The trial court suspended imposition of sentence and placed him on probation. During probation revocation proceedings, Bastidas requested that his conviction be reduced to a misdemeanor based on Proposition 47, which was enacted after he was placed on probation. To avoid the lifetime firearm ban (see Pen. Code, § 1170.18, subd. (k)), Bastidas argued he was not “currently serving a sentence” under section 1170.18, and that he was entitled to the reduction of his conviction to a misdemeanor under the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740. The trial court disagreed, and reduced the offense to a misdemeanor under Proposition 47’s resentencing provisions, which left Bastidas subject to the lifetime firearms ban. He appealed. Held: Affirmed. Section 1170.18 sets forth the procedure for reducing a felony offense to a misdemeanor under Proposition 47. Under section 1170.18, subdivision (a), “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies,” who would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense, may petition for a recall of sentence. Applying rules of statutory construction, the Court of Appeal concluded that imposition of probation constitutes a sentence under Proposition 47. Because the resentencing procedures in section 1170.18 applied to Bastidas’ situation, Estrada did not apply. (See People v. Shabazz (2015) 237 Cal.App.4th 303.) The trial court properly resentenced Bastidas under section 1170.18. [Editor’s Note: The California Supreme Court has granted review of, and held, a case presenting a similar issue. (See People v. Davis (2016) 246 Cal.App.4th 127, review granted 7/13/2016 (S234324/A143916).)]
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146431.PDF
