Opinion
H043055
11-21-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREAS MARVIN INATOWITZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS121036A, SS121332A)
This case is before us for the second time after the California Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks).
On June 11, 2012, defendant Andreas Marvin Inatowitz pleaded no contest to a count of possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a)) and admitted he had served a prior prison term (Pen. Code, § 667.5) in case No. SS121036A. On April 17, 2013, he pleaded no contest to two felony counts of infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), a felony count of threatening death or great bodily injury (§ 422), and admitted he had served a prior prison term (§ 667.5) in case No. SS121332A. On June 14, 2013, the trial court sentenced defendant to a total term of six years eight months for case No. SS121332A and a concurrent two-year term for case No. SS121036A.
Unspecified statutory references are to the Penal Code.
On December 3, 2014, defendant filed a petition to have his felony conviction for possession of methamphetamine in case No. SS121036A redesignated as a misdemeanor under section 1170.18, subdivisions (f) and (g). Defendant later filed a petition seeking to have the sentence in his domestic violence case (No. SS121332A) recalled under section 1170.18, subdivisions (b) and (d). Defendant requested that the trial court reduce the overall sentence for his domestic violence case by one year by striking the prior prison term enhancement imposed under section 667.5, because the conviction giving rise to his prior prison term had since been redesignated as a misdemeanor under section 1170.18. The trial court granted defendant's petition to redesignate his felony offense of possession of methamphetamine as a misdemeanor but denied his request for resentencing on the prior prison term enhancement in the domestic violence case. Thereafter, defendant again requested resentencing in both the drug case and the domestic violence case, which the court denied following a hearing.
Defendant appealed. We affirmed, concluding that defendant was not entitled to resentencing in either his drug case or his domestic violence case, and the trial court did not err in declining to strike the prior prison term imposed in the domestic violence case.
Per our Supreme Court's instructions, we hereby vacate our previous decision and reconsider it in light of Buycks, supra, 5 Cal.5th 857. On appeal, defendant argues the trial court erred when it denied him resentencing in both the drug case and the domestic violence case. Defendant has filed a supplemental brief arguing that under Buycks, his prior prison term enhancement in his domestic violence case must also be stricken. As we explain, we find that the trial court did not err in denying him resentencing, and we conclude defendant remains ineligible for Proposition 47 relief under Buycks. We again affirm the judgment.
BACKGROUND
The facts underlying defendant's convictions are taken from our prior opinion.
1. Case No. SS121036A (The Drug Case)
On June 4, 2012, the Monterey County District Attorney's Office filed a complaint charging defendant with a count of felony possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a)) with a prior prison term enhancement (§ 667.5, subd. (b)) based on a prior conviction for burglary (§ 459), a misdemeanor count of being under the influence of a narcotic (Health & Saf. Code, § 11550, subd. (a)), and a misdemeanor count of possession of controlled substance paraphernalia (Health & Saf. Code, former § 11364.1, subd. (a)).
On June 11, 2012, defendant pleaded no contest to the count of felony possession of methamphetamine and admitted the prior prison term allegation. The court dismissed the remaining charges under section 1385.
2. Case No. SS121332A (The Domestic Violence Case)
On September 20, 2012, an information was filed charging defendant with a count of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) with the allegation he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)), two additional counts of inflicting corporal injury on a spouse or cohabitant (§ 273.5), a count of threatening death or great bodily injury (§ 422), and kidnapping (§ 207, subd. (a)). The complaint also alleged two out-on-bail enhancements (§ 12022.1) and two prior prison term enhancements (§ 667.5, subd. (b)) based on a prior burglary conviction occurring on or about August 26, 2004 and a misdemeanor child endangerment conviction (§ 273a, subd. (b)).
On April 17, 2013, defendant pleaded no contest to two counts of inflicting great bodily injury on a spouse or cohabitant (§ 273.5, subd. (a)) and a count of threatening death or great bodily injury (§ 422). He also admitted the prior prison term enhancement. (§ 667.5, subd. (b).)
3. Sentencing in the Drug Case and the Domestic Violence Case
On June 14, 2013, the trial court sentenced defendant to two years for his felony conviction of possession of methamphetamine in the drug case, to be served concurrently with his sentence in the domestic violence case. Defendant was awarded a total of 669 days of custody credit, consisting of 335 actual custody credit and 334 days of conduct credit.
That same day, the trial court sentenced defendant to a total term of six years eight months in prison for the domestic violence case. He was awarded 310 days of custody credit, consisting of 155 actual days and 155 days of conduct credit.
4. Proposition 47 Petitions
On December 3, 2014, defendant filed a petition seeking to have his felony conviction for possession of methamphetamine in the drug case redesignated as a misdemeanor under section 1170.18, subdivisions (f) and (g). The People did not object to the petition, noting that although documents from the California Department of Corrections and Rehabilitation indicated defendant was still serving a sentence for that conviction, it appeared that his custody credits "should have covered the sentence." On February 3, 2015, the court granted defendant's petition under section 1170.18, subdivisions (f) and (g).
Also on December 3, 2014, defendant filed petitions seeking to redesignate two of his prior burglary convictions (case Nos. SS041962A and SS042263A) as misdemeanors under section 1170.18, subdivisions (f) and (g). Each of these convictions were the basis for the prior prison term enhancements alleged in both the drug case and the domestic violence case. For the drug case, it had been alleged that defendant had served a prior prison term for his conviction of burglary in case No. SS042263A. For the domestic violence case, it had been alleged that defendant had served a prior prison term for his conviction of burglary in case No. SS041962A. On February 2, 2015, the trial court granted defendant's petitions and designated the two burglary convictions as misdemeanors.
On February 19, 2015, defendant filed a petition seeking to have his sentence for the domestic violence case recalled under section 1170.18, subdivisions (b) and (d). Defendant argued the sentence included a one-year prior prison term enhancement that was based on a burglary conviction that had since been reduced to a misdemeanor under Proposition 47. The People opposed the petition, claiming Proposition 47 does not apply to status enhancements. On April 23, 2015, the court denied the petition.
On October 28, 2015, defendant, through his counsel, requested resentencing in both the drug case and the domestic violence case. Defendant argued resentencing was necessary, because he was sentenced to an additional year based on his prison prior for the burglary offense, which had since been reduced to a misdemeanor under Proposition 47.
The court held a hearing on the matter on November 17, 2015. During the hearing, the court remarked that the prior prison term enhancement was not imposed in the drug case, because the enhancement alleged was the same as the one alleged in the domestic violence case. The court then stated: "There was a prior prison term admitted in the case ending 036 [the drug case]. That case was run concurrent. He also admitted a prior prison term originally in the case ending 332 [the domestic violence case]. That prior prison term remains. So on three of his felonies, all of those are reduced to misdemeanors pursuant to Prop 47. No additional time was imposed for the prior prison term admitted in the case that was reduced to the misdemeanor. But the original sentence, which is all imposed in 332 [the domestic violence case], everything else was concurrent, he admitted a prior prison term, received one year. That entire sentence remains unchanged, and the Court will deny the petition in regards to that."
The three felonies reduced to misdemeanors include the two prior burglary convictions and the possession of methamphetamine conviction in the drug case.
DISCUSSION
On appeal, defendant argues the trial court erred on November 17, 2015, when it declined to resentence him in both the drug case and the domestic violence case. In his supplemental brief filed after the Supreme Court's remand, defendant further argues that under Buycks, the enhancement imposed for the prior prison term enhancement for his domestic violence case must be stricken. As we explain, we find defendant is not entitled to resentencing in either of his two cases and Buycks is inapplicable.
1. Overview of Proposition 47
On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. Under Proposition 47, certain felonies or wobbler offenses were reclassified as misdemeanors. It also added section 1170.18, which permits those previously convicted of felonies that were reduced to misdemeanors under Proposition 47 to petition to have their convictions either resentenced or redesignated as misdemeanors. Under section 1170.18, subdivision (b), those currently serving sentences for eligible felony convictions can petition to have their sentence recalled and resentenced.
Section 1170.18, subdivision (f) applies to those persons who have already completed their sentence for a conviction who would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of their offense. These individuals may file an application with the trial court under section 1170.18, subdivision (f) to have their felony convictions redesignated as misdemeanors. Under section 1170.18, subdivision (g), if the petitioner's application satisfies the criteria set forth under subdivision (f), the court "shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).) Subdivisions (f) and (g) do not mention resentencing.
Based on the plain language of section 1170.18, defendants who have already completed their sentences that seek to have their felony convictions redesignated as misdemeanors are not entitled to resentencing. (§ 1170.18, subds. (f) & (g).) It is only those defendants who are currently serving a sentence for a qualifying conviction that may petition for recall and resentencing under Proposition 47. (Id., subds. (a) & (b).) Subdivisions (a) and (b)'s recall and resentencing procedure create a narrow exception to the general common law rule that "a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced." (People v. Karaman (1992) 4 Cal.4th 335, 344.)
An offense resentenced or designated as a misdemeanor "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
2. The Trial Court's Denial of Resentencing in Both Cases
Defendant claims that because his felony offense for possession of methamphetamine in the drug case was reduced to a misdemeanor under Proposition 47, he was entitled to resentencing in that case. And, upon resentencing him in the drug case, the court should have considered the joint sentence that was imposed in the domestic violence case and should have stricken the prior prison term enhancement. We find the trial court did not err.
Defendant filed an application with the trial court to have his felony conviction in the drug case be redesignated as a misdemeanor under section 1170.18, subdivisions (f) and (g). He did not file a petition for resentencing under section 1170.18, subdivisions (a) and (b), which applies to those currently serving felony sentences for eligible convictions.
This court requested supplemental briefing on the issue of whether defendant had in fact completed serving his sentence in his drug possession case although he was still incarcerated for his domestic violence case. We agree with defendant and the People that the trial court correctly designated defendant's felony conviction in the drug possession case to be a misdemeanor under the provisions of section 1170.18, subdivisions (f) and (g). As both parties point out, defendant's credits covered the majority of his two-year sentence. And "[a] concurrent term . . . begins on the day it is imposed and is not postponed." (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3.) Additionally, since defendant was sentenced to concurrent terms, his concurrent terms did not merge into a single aggregate term as would have been the case if he had been sentenced consecutively. (In re Reeves (2005) 35 Cal.4th 765, 773.) By the time he filed his application, he had already completed serving his sentence in the drug case. Therefore, the trial court had no jurisdiction to resentence him in the drug case, and, correspondingly, the court had no jurisdiction to resentence him in the domestic violence case.
We find the discussion in People v. Vasquez (2016) 247 Cal.App.4th 513 (Vasquez) to be instructive. In Vasquez, the defendant was convicted of felony petty theft with a prior in 1995 and was sentenced to 16 months in state prison. (Id. at p. 516.) In 2015, the defendant petitioned to have his petty theft conviction reduced to a misdemeanor under section 1170.18, subdivisions (f) and (g). (Vasquez, supra, at p. 517.) The defendant submitted a proposed order vacating the original 16-month sentence. (Ibid.) The trial court found the defendant eligible to have his felony designated as a misdemeanor under Proposition 47 but concluded it could not change his sentence since his sentence had already been completed. (Ibid.)
On appeal, the defendant argued the trial court erred when it refused to vacate his sentence. (Vasquez, supra, 247 Cal.App.4th at p. 517.) The Vasquez court affirmed the trial court's decision, finding that nothing in section 1170.18, subdivisions (f) and (g) required a court to vacate a sentence or permitted a court to resentence a defendant for a conviction after he or she has already completed a sentence. (Vasquez, supra, at pp. 518-519.)
We agree with Vasquez's discussion of section 1170.18 and find it is relevant to our analysis. As noted in Vasquez, section 1170.18, subdivisions (f) and (g) do not mention resentencing at all. (Vasquez, supra, 247 Cal.App.4th at p. 519.) In contrast, section 1170.18, subdivisions (a) and (b) expressly discuss resentencing. "Because resentencing is expressly addressed in subdivisions (a) and (b) of section 1170.18, it is appropriate to conclude that resentencing was intentionally excluded from subdivisions (f) and (g). Inserting additional language into a statute violates ' "the cardinal rule of statutory construction that courts must not add provisions to statutes" ' because ' "a court must not 'insert what has been omitted' from a statute." ' " (Vasquez, supra, at p. 519.) In this instance, the statutory language is clear. Subdivisions (f) and (g) of section 1170.18 do not authorize the trial court to alter or resentence a completed sentence.
Defendant, however, argues the court had jurisdiction to resentence him in the drug case even if resentencing was not expressly authorized by subdivisions (f) and (g) of section 1170.18. He claims his two-year sentence for drug possession constituted an unauthorized sentence, because it has since been reduced to a misdemeanor that is now punishable by a maximum of one year in jail (Health & Saf. Code, § 11377, subd. (a)). He also argues the imposition of concurrent terms in the drug case and the domestic violence case did not obviate the need for resentencing on the unauthorized two-year sentence in his drug case.
We disagree with defendant's characterization of his two-year sentence as an unauthorized sentence. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) When the trial court initially imposed the two-year sentence, defendant stood convicted of a felony. At that time, his sentence was lawfully imposed under the circumstances of his case. Defendant has since completed his sentence. The later reduction of the felony to a misdemeanor by Proposition 47 does not render this original sentence unauthorized.
For the same reasons, we reject defendant's claim that the abstract of judgment should be set aside because it is void on the face of the record. (People v. Amaya (2015) 239 Cal.App.4th 379, 386.) " ' "A judgment is void on its face if the court which rendered the judgment lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant." ' " (Ibid.) Although the abstract of judgment reflects defendant was sentenced to a two-year term for his conviction of possession of methamphetamine under Health and Safety Code former section 11377, subdivision (a), this does not render the abstract of judgment void on its face. Defendant's sentence comported with the law at the time of his offense, and the court did not exceed its jurisdiction during sentencing. The later designation of the felony as a misdemeanor does not transform the sentence, which he has already completed, into one that is void on its face.
Defendant claims the language of section 1170.18, subdivision (k) supports his position that resentencing is necessary even for those defendants who have already completed their sentence. Subdivision (k) of section 1170.18 states: "A felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (Italics added.)
Although section 1170.18, subdivision (k) uses the term "resentencing," it expressly refers to convictions that are recalled and resentenced under section 1170.18, subdivision (b) or those convictions designated as misdemeanors under subdivision (g). Logically, subdivision (k)'s reference to resentencing is to those convictions that are recalled and resentenced under subdivision (b), not to those convictions designated as misdemeanors under subdivision (g). (Vasquez, supra, 247 Cal.App.4th at p. 519.)
Thus, the court did not err when it declined to resentence defendant in the drug case. Although defendant requested resentencing, the trial court had no jurisdiction to alter a sentence that had already been completed.
Resentencing is also not required in defendant's domestic violence case. Defendant argues that he is entitled to resentencing in that case, because he properly brought a motion for resentencing in the drug case and upon resentencing the court should have considered the joint sentence imposed on both the drug case and the domestic violence case. (See People v. Navarro (2007) 40 Cal.4th 668 [full resentencing is necessary even when only one conviction is modified].)
We agree that if one conviction is reduced following a successful Proposition 47 resentencing petition the entire aggregate sentence must be reconsidered. (People v. Roach (2016) 247 Cal.App.4th 178, 185 ["where a petition under section 1170.18 results in reduction of the conviction underlying the principal term [in an aggregate sentence] from a felony to a misdemeanor, the trial court must select a new principal term and calculate a new aggregate term of imprisonment, and in doing so it may reconsider its sentencing choices"].) This principle, however, is inapplicable to defendant's case. As we have already determined, defendant was not entitled to resentencing in the drug case.
Moreover, defendant is not separately entitled to resentencing in the domestic violence case under section 1170.18, subdivisions (a) and (b), because his felony convictions in the domestic violence case (two counts of inflicting great bodily injury on a spouse or cohabitant (§ 273.5, subd. (a)) and a count of threatening death or great bodily injury (§ 422) are not eligible for Proposition 47 relief. Resentencing is also not required solely because the conviction giving rise to his prior prison term enhancement has been reduced to a misdemeanor. "Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected by the reduction of a conviction to a misdemeanor in a separate judgment." (Buycks, supra, 5 Cal.5th at p. 892.) "Proposition 47's procedures focus on the resentencing and redesignation of felony convictions and not the resentencing, redesignation, or dismissal of enhancements or other crimes predicated on the existence of a prior felony." (Ibid.)
In sum, the court did not err when it declined to resentence defendant in either the drug case or the domestic violence case.
3. The Prior Prison Term Enhancement
Next, defendant argues the trial court erred when it failed to strike the prior prison term enhancement (§ 667.5) imposed in the domestic violence case. He claims the enhancement must be stricken, because he had successfully petitioned to have the felony burglary conviction underlying the enhancement redesignated as a misdemeanor under section 1170.18, subdivisions (f) and (g). Defendant further argues in his supplemental brief that our Supreme Court's recent decision in Buycks, supra, 5 Cal.5th 857 applies and requires that this court strike the prior felony prison term enhancement imposed for his sentence for the domestic violence case. We find the court did not err when it declined to strike the prior prison term enhancement imposed in the domestic violence case.
a. People v. Buycks
Our Supreme Court granted review in three cases involving similar issues related to Proposition 47's effect on felony-based enhancement in resentencing proceedings and addressed all three cases in Buycks, supra, 5 Cal.5th 857. First, in Buycks, the court addressed whether Proposition 47 required dismissing a two-year sentencing enhancement for committing a felony offense while released on bail for an earlier felony offense (§ 12022.1, subd. (b)) when the earlier felony offense is reduced to a misdemeanor under section 1170.18. (Buycks, supra, at p. 871.) In Valenzuela, the court considered whether Proposition 47 required the dismissal of a one-year enhancement for having served a prior prison term (§ 667.5, subd. (b)) when the felony underlying the prison prior is reduced to a misdemeanor under section 1170.18. (Buycks, supra, at p. 871.) Lastly, in In re Guiomar, the court examined whether Proposition 47 required dismissal of a failure to appear for a felony charge (§ 1320.5) when the underlying felony had been reduced to a misdemeanor. (Buycks, supra, at p. 871.)
For the first two situations, our Supreme Court held that "Proposition 47's mandate that the resentenced or redesignated offense 'be considered a misdemeanor for all purposes' (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors." (Buycks, supra, 5 Cal.5th at p. 871.) Our Supreme Court, however, concluded that those convicted under section 1320.5 cannot obtain relief. (Buycks, supra, at p. 871.)
Defendant argues the factual situation faced by the defendant in Valenzuela is analogous to the facts presented in his case. In 2012, Valenzuela was convicted of felony receiving stolen property (§ 496) and sentenced to 16 months in prison. (Buycks, supra, 5 Cal.5th at p. 873.) In 2014, Valenzuela was found guilty of carjacking (§ 215, subd. (a)), reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). (Buycks, supra, at p. 874.) Due to her earlier felony conviction from 2012, Valenzuela was subjected to a one-year prior felony prison term enhancement under section 667.5, subdivision (b) for her 2014 case. (Buycks, supra, at p. 874.)
While Valenzuela's appeal over her 2014 convictions was still pending, voters passed Proposition 47. (Buycks, supra, 5 Cal.5th at p. 874.) Thereafter, she successfully petitioned the trial court to have her 2012 conviction for receipt of stolen property redesignated as a misdemeanor. (Ibid.) In her appeal over her 2014 conviction, Valenzuela argued the appellate court should strike her one-year section 667.5, subdivision (b) prior felony prison term enhancement, because her 2012 conviction was now a misdemeanor and not a felony. (Buycks, supra, at p. 874.)
The California Supreme Court agreed. The court concluded that under section 1170.18, subdivision (k), "a successful Proposition 47 petitioner may subsequently challenge . . . any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect. In addition, finality aside, a defendant who successfully petitions for resentencing on a current Proposition 47 eligible conviction may, at the time of resentencing, challenge a felony-based enhancement contained in the same judgment because the prior felony conviction on which it was based has since been reduced to a misdemeanor." (Buycks, supra, 5 Cal.5th at p. 879.)
As we noted earlier, the Buycks court explained that Proposition 47 did not provide a mechanism for recalling and resentencing a judgment because a prior underlying felony conviction supporting an enhancement had since been reduced to a misdemeanor. (Buycks, supra, 5 Cal.5th at p. 892.) Buycks concluded this was because "Proposition 47's procedures focus on the resentencing and redesignation of felony convictions and not the resentencing, redesignation, or dismissal of enhancements or other crimes predicated on the existence of a prior felony." (Ibid.)
Thereafter, Buycks reviewed several mechanisms that would be available to strike such enhancements. (Buycks, supra, 5 Cal.5th at p. 893.) First, when resentencing a Proposition 47 eligible conviction, "the trial court must reevaluate the applicability of any enhancement within the same judgment at that time, so long as that enhancement was predicated on a felony conviction now reduced to a misdemeanor . . . notwithstanding the finality of that judgment." (Buycks, supra, at pp. 894-895.) Second, "the collateral consequences of Proposition 47's mandate to have the redesignated offense 'be considered a misdemeanor for all purposes' can properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect." (Id. at p. 895.)
b. Application of Buycks to Defendant's Case
Defendant argues Buycks applies and requires that this court strike the prior felony prison term enhancement imposed for his sentence for the domestic violence case. Defendant argues the Valenzuela defendant's situation, discussed in Buycks, is akin to the factual circumstances of his case. We disagree and conclude that Buycks is inapplicable.
Primarily, defendant's argument ignores the analysis and statements in Buycks that limited the ameliorative effects of Proposition 47 on felony-based enhancements to those enhancements (1) attached to judgements that were not yet final at the time Proposition 47 took effect or (2) predicated on felony convictions reduced to misdemeanors, notwithstanding the finality of those judgements, upon resentencing on an eligible Proposition 47 conviction. (Buycks, supra, 5 Cal.5th at pp. 893-895.) For example, Valenzuela, whose case defendant argues is analogous to his, successfully challenged a prior prison term enhancement imposed in a judgment that was not yet final when Proposition 47 took effect. (Id. at p. 894.) The Supreme Court noted that Valenzuela could have also claimed that her prior felony prison term enhancement should be stricken in conjunction with her Proposition 47 resentencing petition for her 2014 conviction. (Ibid.)
None of the situations outlined in Buycks are applicable to defendant's case. As we previously determined, defendant's prior prison term is an enhancement imposed for the judgment in his domestic violence case, which was final when Proposition 47 was enacted. Moreover, defendant did not seek to have his domestic violence offenses reduced to misdemeanors, as those offenses are ineligible under section 1170.18. If his domestic violence convictions were subject to resentencing, defendant would be able to challenge his prior prison felony enhancement.
We note that in his opening brief, defendant insists his case involves the prospective application of Proposition 47. We believe defendant mischaracterizes his own argument, because he is effectively challenging the imposition of a prior prison term enhancement that was imposed on a judgment that became final before the effective date of Proposition 47. Defendant's claim that he is entitled to Proposition 47 relief is also premised on his mistaken claim that he was entitled to resentencing in both of his cases. As we have already determined ante, defendant was not entitled to resentencing in either the drug case or the domestic violence case.
Having reached the conclusion that defendant was not entitled to resentencing on both the drug case and the domestic violence case, we also find defendant's reliance on People v. Flores (1979) 92 Cal.App.3d 461 (prior conviction for violation of Health & Saf. Code, § 11357 could not form basis of enhancement under § 667.5, because Health & Saf. Code, § 11357 was amended in 1975 to be a misdemeanor), In re Acker (1984) 158 Cal.App.3d 888 (prison sentence recalled under § 1170, subd. (d) could not form basis of prior prison term enhancement under § 667.5), People v. Park (2013) 56 Cal.4th 782 (felony reduced to a misdemeanor under § 17, subd. (b) cannot be basis of prior serious felony conviction enhancement under § 667, subd. (a)), and People v. Culbert (2013) 218 Cal.App.4th 184 (felony reduced to a misdemeanor pursuant to § 17, subd. (b) cannot be basis of prior serious felony conviction enhancement under § 667, subd. (a)) to be misplaced. All of the aforementioned cases concern the prospective application of a reduction of an offense to a misdemeanor or a recall of a prior sentence.
Retroactive application of Proposition 47 to defendant's case would also contravene the settled principle that no part of the Penal Code is "retroactive, unless expressly so declared." (§ 3.) Section 1170.18 is silent on whether Proposition 47 can be properly applied to invalidate enhancements that have been imposed in cases that became final before the passage of Proposition 47. Moreover, that scenario was not contemplated by our Supreme Court in Buycks, supra, 5 Cal.5th 857. In fact, the language in Buycks weighs against giving section 1170.18 such an interpretation, because Buycks stated that Proposition 47 "requires felony-based section 667.5 and 12022.1 enhancements to be retroactively stricken, but only with regard to judgments that were not final at the time the initiative took effect." (Buycks, supra, at p. 876, italics added.) Buycks did not expand the ameliorative effect of Proposition 47 to all felony-based enhancements, including those imposed on final judgments.
Furthermore, defendant is not separately able to obtain resentencing on his prior prison term enhancement imposed in the domestic violence case, even though the conviction underlying the enhancement has since been reduced to a misdemeanor under section 1170.18, subdivision (f). Section 1170.18, subdivision (a) expressly provides that recall and resentencing is available to those persons "serving a sentence for a conviction" (italics added) that would have been guilty of a misdemeanor if Proposition 47 had been in effect. It does not by itself apply to sentence enhancements. As noted in Buycks, "Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected by the reduction of a conviction to a misdemeanor in a separate judgment." (Buycks, supra, 5 Cal.5th at p. 892.) Without a procedure that allows defendant to request resentencing on the enhancement, he is not entitled to have a resentencing hearing on the enhancement and have the trial court either vacate or strike it.
The other arguments advanced by defendant in his opening brief are inapplicable to the circumstances of his case, because they pertain to the prospective application of a redesignation of an enhancement's underlying conviction by Proposition 47. For example, in the context of prospective application of Proposition 47, defendant claims that imposing the prior prison enhancement would violate the intent of Proposition 47. The rationale behind his argument is that punishing a defendant for prior offenses as if those convictions had been felonies when they had been deemed by the electorate to be neither serious, violent, nor felonious, would contradict the electorate's purpose when enacting Proposition 47. This argument has no bearing on whether the retroactive application of Proposition 47 to sentence enhancements would contravene the electorate's intent when enacting the initiative.
In sum, section 1170.18 does not offer defendant a mechanism to request resentencing on the prior prison term enhancement imposed under section 667.5. Accordingly, his claim that he is entitled to resentencing on the enhancement must be rejected.
Based on our conclusion, we need not address the People's alternative argument that if defendant is entitled to resentencing on his prior prison enhancement, the People should be given the opportunity to withdraw from the negotiated plea agreement and reinstate previously dismissed counts. --------
c. Writ of Habeas Corpus
Lastly, defendant argues that even if we conclude the trial court lacked jurisdiction to resentence defendant and strike the prior prison term enhancement, we should treat his appeal as a petition for writ of habeas corpus and grant the requested relief. Defendant's argument, however, must be rejected. Buycks expressly stated that a habeas petition could be an avenue for relief for certain defendants. However, Buycks specified that habeas relief was limited "for those judgments that were not final when Proposition 47 took effect." (Buycks, supra, 5 Cal.5th at p. 895.) Since defendant's domestic violence conviction was final when Proposition 47 went into effect, defendant is ineligible to seek relief by writ of habeas corpus under Buycks.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.