P v. Montgomery (4th Dist., Div.3) "Prior" in PC 1170.18(i) Means "Prior to the Petition"

Mr. Montgomery was arrested for possession of cocaine in 1988.  In 1989, he was arrested for attempted murder.  Subsequently, Montgomery and the State entered into a plea bargain where Montgomery would simultaneously plead guilty to the 1989 attempted murder and the 1988 possession of cocaine in exchange for the State moving to dismiss other pending charges and agreeing to run the cocaine sentence concurrent with the attempted murder sentence.  Montgomery served both sentences and was released.

In December of 2014, Montgomery filed a PC 1170.18 petition to reduce his possession of cocaine conviction to a misdemeanor as cocaine possession was one of the crimes made a misdemeanor by Proposition 47 on November 4, 2014.  The trial court ruled Montgomery ineligible for the relief requested on the basis he had a prior conviction for attempted murder.  Montgomery appealed.

The Fourth District affirms the denial.

The issue is a textual one.  PC 1170.18(i) states, in pertinent part, "[Relief] shall not apply to persons who have one or more prior convictions [for certain offenses] . . . ."  One of the certain offenses is attempted murder.  Thus the issue is whether Montgomery's attempted murder conviction is a "prior conviction", an issue whose resolution depends on what subsequent event is implied.  Or, as the opinion writes, "prior to what"?

If "prior" means "prior to the conviction for which relief is sought" then Montgomery wins.  His attempted murder conviction was not prior to his cocaine conviction; they were simultaneous.  But if "prior" means "prior to the filing of the 1170.18 petition", Montgomery is sunk.  The opinion chooses the latter.  

The opinion does a decent job to resolve this ambiguity.  It is more difficult than it appears as Proposition 47's historical documents (understandably) dedicate the majority of space to the issue of early release of prisoners, giving short shrift to the topic of relief for completed sentences.  The anchor of the opinion is ballot language which states that murderers and rapists will not benefit from Proposition 47.

IMEO, this is the type of issue which begs for a textual examination.  Let me explain.  The word "shall" is a modal verb, expressing a future time.  "Have" is a present tense verb.  If something "shall not apply to persons who have . . . .", does not this language express the intent that at the relevant time in the future,  the thing shall not apply to people who have, at that future time, the specified status?  As it would be anachronistic to find the time of the conviction for which relief is being sought as the "relevant future event" (it necessarily will predate November 4, 2014), the only coherent interpretation is that the "relevant future event" is the filing of the 1170.18 petition.