Probationers are “serving a sentence” within the meaning of Penal Code section 1170.18, and therefore must file a petition in the trial court for resentencing rather than request retroactive application of Proposition 47 to their conviction. In 2014, Davis pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377) and received probation. By November 2014, when Davis appeared at a probation revocation hearing, Proposition 47 had passed. He argued that he was ineligible to file a Proposition 47 petition because it applied to persons “currently serving a sentence” (Pen. Code, § 1170.18, subd. (a)), while he was on probation. He asked the trial court to apply the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740, and reduce his conviction to a misdemeanor. His approach to the matter was apparently an effort to avoid subdivision (k) of section 1170.18, which states the ban on gun possession applicable to felons applies to successful Proposition 47 petitioners. The trial court required Davis to file a Proposition 47 petition, which was granted. He appealed. Held: Affirmed. Proposition 47 reduced certain felony drug offenses to misdemeanors. It added Penal Code section 1170.18, which provides a procedure whereby qualified defendants “currently serving a sentence” may petition for resentencing. The meaning of “serving a sentence” in section 1170.18, subdivision (a) is ambiguous, as it could refer to confinement or to punishment generally. However, it appears the electorate viewed “serving a sentence” more broadly than serving a term of confinement. This view promotes the purpose of the law—to apply the ameliorative changes to persons who had already suffered felony convictions for offenses now declared to be misdemeanors. The court concluded that probationers are covered by section 1170.18, subdivision (a) and that there was no basis for applying Estrada in this case.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A143916.PDF