Trial court lacks jurisdiction under Penal Code section 1170.18 (Prop. 47) to vacate or otherwise change a completed felony sentence when the felony is designated as a misdemeanor. Vasquez filed a Proposition 47 petition to reduce his 1995 conviction for petty theft with a prior (Pen. Code, § 666) to a misdemeanor. He also asked the court to vacate the completed 16 month sentence for that offense in order to ameliorate the immigration consequences of the plea. The court reduced the offense to a misdemeanor but refused to vacate the sentence. Vasquez appealed. Held: Affirmed. Proposition 47 reduced certain drug and theft-related offenses to misdemeanors. It created section 1170.18, which provides a procedure whereby qualified defendants may petition to reduce their felony offenses to misdemeanors. Proposition 47 also amended Penal Code section 666, petty theft with a prior, reducing the maximum penalty from three years to one year. Section 1170.18, subdivision (a) applies to defendants who are currently serving a sentence for specified crimes, including section 666, allowing a defendant to petition for recall of his sentence and resentencing. However, subdivision (f) of section 1170.18 applies to a defendant who has completed his sentence, allowing him to petition to have his felony conviction designated as a misdemeanor; it contains no reference to resentencing. Applying rules of statutory construction, the Court of Appeal concluded that section 1170.18 does not authorize a court to vacate a sentence that has already been served and completed. Although section 1170.18, subdivision (k) provides that a felony that is reduced shall be considered a misdemeanor “for all purposes” (except for the right to possess a gun), it does not does not authorize a trial court to recall a completed sentence and alter it to avoid adverse immigration consequences.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B264637.PDF