People v. Guardado CA4/1

California Court of Appeal · D067628 · 2016-01-12 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE344353
Trial judge: Ronald F. Frazier
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Alex C. McDonald, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:00Z · confidence high

The trial court denied probation and sentenced the defendant to four years in prison based on a true finding that he was on felony probation at the time of the burglary, despite a subsequent reduction of his prior forgery conviction to a misdemeanor under Proposition 47. The Court of Appeal affirmed, holding that Proposition 47 does not retroactively negate the status of being on felony probation at the time of the new offense, and that the trial court independently denied probation for valid reasons.

Ruling reviewed	Standard	The court	The model
Denial of probation based on a true finding under Penal Code section 1203, subdivision (k) that the defendant was on felony probation at the time of the new offense. “Guardado was in fact on probation for a felony at the time he committed the burglary offense, notwithstanding the subsequent passage of Proposition 47.”	abuse of discretion	correct	agree with court agree with court
Denial of probation based on independent factors including victim impact, prior probation performance, and criminal history. “The court's denial of probation is also based on the true finding of 1203(k).”	abuse of discretion	correct	agree with court agree with court

Authorities

relied: People v. Ramirez (2006) 143 Cal.App.4th 1512 — Establishes the abuse of discretion standard for reviewing probation decisions.
relied: People v. Carmony (2004) 33 Cal.4th 367 — Supports the abuse of discretion standard for sentencing decisions.
relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Describes the mechanism of Proposition 47 for reclassifying felonies as misdemeanors.
relied: People v. Neild (2002) 99 Cal.App.4th 1223 — Explains the effect of section 1203, subdivision (k) in denying probation for new felonies committed while on felony probation.
relied: In re Acker (1984) 158 Cal.App.3d 888 — Distinguished by the court as not involving a retroactive challenge to a prior conviction or probation status.
relied: People v. Stuart (2007) 156 Cal.App.4th 165 — Affirms that trial courts have broad discretion to grant or deny probation.
relied: People v. Mehserle (2012) 206 Cal.App.4th 1125 — States that a defendant challenging a discretionary sentencing choice has a heavy burden to show abuse of discretion.

The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard and accurately distinguishes the cited precedent. It logically concludes that the statutory language of section 1203, subdivision (k) focuses on the defendant's status at the time of the new offense, not subsequent changes to prior convictions.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After a jury convicted Ismael Guardado of first degree burglary, the trial court found true a Penal Code section 1203, subdivision (k) allegation that he was on felony probation (for forgery) when he committed the burglary, denied probation on that ground and on independent stated factors, and imposed the four-year middle term, even though the forgery had been reduced to a misdemeanor under Proposition 47 after the burglary conviction but before sentencing. The Court of Appeal affirmed, holding that section 1203, subdivision (k) looks to the defendant's status at the time of the new offense and that the later Proposition 47 reduction did not retroactively negate the finding, and alternatively that any error was harmless because the trial court expressly denied probation on independent grounds.

Ruling reviewed	Standard	The court	The model
True finding on the section 1203, subdivision (k) allegation and its continued application despite the post-offense Proposition 47 reduction of the forgery conviction to a misdemeanor “Although Guardado's status changed several months after he committed the new felony that does not alter the reality that Guardado came squarely within the meaning of section 1203, subdivision (k) at the time he committed the new offense.”	unclear	correct	unsure The court's reading that section 1203(k) is tied to the defendant's probation status at the time of the new felony is textually plausible, and the court correctly distinguished In re Acker as a case about unproved enhancement elements rather than retroactivity. But the court said it found nothing in the language of section 1170.18 supporting a collateral effect without engaging the statute's own provision that a reduced offense 'shall be considered a misdemeanor for all purposes,' and it did not discuss Estrada retroactivity principles or the Supreme Court's analogous timing analysis in People v. Park, both of which bear directly on whether a reduction in a non-final case alters the status-based consequence. Because the key statutory language was not addressed, I cannot say the court's conclusion was clearly right or clearly wrong.
Denial of probation and imposition of the middle term of four years “The court's remarks cite separate, valid reasons to deny probation. On this record there is no likelihood that a different result would have occurred even if Proposition 47 negated the application of section 1203, subdivision (k) in this case.”	abuse of discretion	correct	agree with court The trial court expressly made alternative findings denying probation based on emotional injury to four victims, prior convictions, and repeated unsatisfactory performance on probation (absconding, drug use, new offenses), stating these were independent of the 1203(k) finding. Under the deferential abuse-of-discretion standard set out in Carmony, Stuart, and Mehserle, those stated reasons amply support denial of probation regardless of how the Proposition 47 question is resolved, so the appellate court's harmlessness conclusion follows from the quoted record.

Authorities

relied: People v. Carmony (2004) 33 Cal.4th 367 — Sentencing decisions are reviewed for abuse of discretion and will be set aside only on a clear showing of abuse.
relied: People v. Ramirez (2006) 143 Cal.App.4th 1512 — A trial court's decision to grant or deny probation is reviewed for abuse of discretion.
relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 (section 1170.18) created a mechanism for reclassifying and resentencing certain felonies as misdemeanors.
relied: People v. Neild (2002) 99 Cal.App.4th 1223 — Section 1203, subdivision (k) bars probation for a person who commits a serious or violent felony while on felony probation for another offense.
relied: In re Acker (1984) 158 Cal.App.3d 888 — A prison prior enhancement cannot be imposed where the defendant's sentence was recalled and he never completed a prison term; distinguished as involving unproved enhancement elements rather than retroactive collateral attack.
relied: People v. Stuart (2007) 156 Cal.App.4th 165 — Trial courts have broad discretion to grant or deny probation.
relied: People v. Mehserle (2012) 206 Cal.App.4th 1125 — A defendant challenging a discretionary sentencing choice bears a heavy burden to show abuse of discretion.
missed: People v. Park (2013) 56 Cal.4th 782 — When a wobbler is reduced to a misdemeanor under section 17(b), it is a misdemeanor 'for all purposes' and cannot thereafter support a felony-based enhancement, with the Court addressing the significance of whether the reduction occurred before or after the new offense; directly analogous to the 'misdemeanor for all purposes' timing question under section 1170.18, subdivision (k).
missed: In re Estrada (1965) 63 Cal.2d 740 — Absent a contrary indication, an ameliorative change in the law applies to all cases not yet final on the law's effective date; relevant because Guardado's judgment was not final when Proposition 47 took effect and his forgery was reduced.

The appellate opinion: sound with gaps — The opinion reaches a defensible result, chiefly because the trial court's express independent findings make any error in applying section 1203, subdivision (k) harmless under the deferential standard of review. It skips, however, the 'misdemeanor for all purposes' language of section 1170.18, subdivision (k), Estrada retroactivity principles for non-final judgments, and the Supreme Court's analogous timing analysis in People v. Park, so its merits holding on the Proposition 47 question is thinly reasoned.

How this analysis was made · dispute it

Opinion

Filed 1/12/16 P. v. Guardado CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067628

Plaintiff and Respondent, v. (Super. Ct. No. SCE344353)

ISMAEL GUARDADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Ronald F.

Frazier, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent. In May 2014, Ismael Guardado entered a guilty plea to forgery (Pen. Code,1 § 476). Guardado was placed on felony probation.

In October 2014, Guardado was charged with first degree burglary (§§ 459, 460).

It was also alleged that the crime was committed while Guardado was on felony probation (§ 1203, subd. (k)).

In December 2014, a jury convicted Guardado of the burglary charges. In February 2015, the court found the allegation pursuant to section 1203, subdivision (k) to be true. At the time of sentencing the trial court denied probation and sentenced Guardado to the middle term of four years in prison.

After his conviction for burglary, but before sentencing, Guardado's conviction for forgery was reduced to a misdemeanor under section 1170.18 (Proposition 47).

Guardado appeals contending that the postconviction reduction of his forgery offense to a misdemeanor means that he was not on felony probation at the time of the burglary offense (which predated the passage of Proposition 47). Accordingly, Guardado contends the trial court erred in denying probation based on the jury's true finding on the allegation under section 1203, subdivision (k).2 1 All further statutory references are to the Penal Code unless otherwise specified.

2 Section 1203, subdivision (k) provides: "Probation shall not be granted to, nor shall the execution of, or imposition of sentence be suspended for, any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense." 2 The People contend the postconviction reduction of the forgery offense to a misdemeanor does not negate the allegation that Guardado was on felony probation at the time of the offense, and that even if there was error, the trial court made clear it would deny probation notwithstanding the section 1203, subdivision (k) true finding.

As we will discuss we agree with the People's analysis on both issues and will affirm the judgment.

The facts of the burglary offense are not relevant to any issue presented by this appeal and therefore we will omit the traditional statement of facts.

DISCUSSION

A. Legal Principles The decision of a trial court to grant or deny probation is reviewed under the abuse of discretion standard. Under that standard we will only set aside a sentencing decision where the record establishes a clear abuse of discretion. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530; People v. Carmony (2004) 33 Cal.4th 367, 371, 374.)

In November 2014, the voters enacted Proposition 47 (§ 1170.18) which provided a mechanism for reclassifying and resentencing certain felonies as misdemeanors.

(People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)

The question presented by this appeal is whether subsequent reduction of Guardado's forgery offense to a misdemeanor means he was not on felony probation at the time of the burglary in this case. Section 1203, subdivision (k) has the effect of denying probation to a person who commits a serious or violent felony while on felony probation for another offense. (People v. Neild (2002) 99 Cal.App.4th 1223, 1227.) The 3 important phrase for this case is "who was on probation for a felony offense at the time of the commission of the new felony." It is without dispute that Guardado was in fact on probation for a felony offense at the time of the current offense. The question is whether subsequent reduction of the probation offense, serves as a collateral, retroactive attack on the true finding under section 1203, subdivision (k).

Guardado relies on In re Acker (1984) 158 Cal.App.3d 888 (Acker) to support his argument for retroactive effect of the Proposition 47 reduction. Acker, of course, has nothing to do with Proposition 47, enacted some 30 years later. In Acker the defendant was sentenced to prison, but the sentence was recalled under section 1170, subdivision (d), thus he did not complete the prison sentence. When he was convicted later of a new offense, the prosecution alleged a prison prior (§ 667.5, subd. (b)). The court ruled the prison prior was not proper, because, although Acker had been sentenced to prison, he never completed his term, hence he did not serve a completed prison term as required for such enhancement. The court in Acker simply considered the terms of the enhancement and found they had not been proved. There was no retroactive challenge at issue in that case.

B. Analysis Guardado was in fact on probation for a felony at the time he committed the burglary offense, notwithstanding the subsequent passage of Proposition 47. We find nothing in the language of section 1170.18 or the ballot material which supports any intent to permit a retroactive, collateral attack such as this. The purpose of section 1203, subdivision (k) is to deal with people who are on probation for a felony offense when 4 they commit a new serious or violent felony. Guardado falls squarely within the purpose of that section. It seems clear that the section is focused on the status of the defendant at the time of the commission of the new serious or violent felony. Although Guardado's status changed several months after he committed the new felony that does not alter the reality that Guardado came squarely within the meaning of section 1203, subdivision (k)

at the time he committed the new offense.

While we are satisfied Proposition 47 does not afford Guardado any relief in this case, it is apparent that the trial judge determined he would not grant probation for reasons independent of section 1203, subdivision (k). The court said:

"[I]nclude but are not limited to the defendant inflicted emotional injury on four victims who occupied the home. All four reported being sad, scared, stressed and angry following the burglary. The defendant has a prior felony conviction and one prior misdemeanor conviction for forgery and a drug-related offense.

"The defendant's prior performance on probation was unsatisfactory. He repeatedly absconded from probation supervision, failed to remain law abiding and used illegal drugs.

"While the court has made a true finding as to Penal Code section 1203(k), the court makes alternative findings in denying probation, based not only on independent factors just stated above. The court's denial of probation is also based on the true finding of 1203(k)."

As we have noted, trial courts have broad discretion to grant or deny probation.

(People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.) The defendant challenging the court's discretionary sentencing choice has a heavy burden to show abuse of discretion.

(People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.)

5 In the present case, the trial court was aware of Guardado's position that the Proposition 47 reduction of the forgery offense negated the application of section 1203, subdivision (k). The court's remarks cite separate, valid reasons to deny probation. On this record there is no likelihood that a different result would have occurred even if Proposition 47 negated the application of section 1203, subdivision (k) in this case.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.

Cites, in this corpus

People v. Rivera H041742 · 2015-01-29
People v. Mehserle No. A130654 · 2012-06-08
People v. Stuart A116520 · 2007-10-18
People v. Ramirez D045941 · 2006-10-20
People v. Carmony No. S115090 · 2004-07-08
People v. Neild D038132 · 2002-07-29
In Re Acker Crim. 17492 · 1984-07-30