Opinion
A147345
11-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON ARTHUR TRIMBLE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR291074)
Proposition 47, passed by the voters in November 2014, reclassified certain nonserious, nonviolent offenses from felonies to misdemeanors. The measure also enacted Penal Code section 1170.18, which permits offenders to petition the superior court to redesignate their felony convictions and reduce their sentences based on the new misdemeanor classification.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant Jason Arthur Trimble appealed the trial court's denial of his petition to strike a one-year enhancement for a prior prison term based on a felony conviction that had subsequently been reduced to a misdemeanor pursuant to Proposition 47. We initially reversed the judgment and remanded the matter to the trial court with directions to grant appellant's petition to strike the enhancement. However, the California Supreme Court granted review and subsequently transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of the recent decision in People v. Buycks (2018) 5 Cal.5th 857 (Buycks). Accordingly, we shall now vacate our original opinion and, for reasons we will explain, affirm the trial court's order denying appellant's petition to strike the enhancement.
BACKGROUND
In January 2013, in case No. 291074 (from which this case arises), appellant pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and admitted four prior prison term commitments (§ 667.5, subd. (b)), all of which were felonies at that time. On that same date, in case No. 286093, appellant pleaded no contest to the unauthorized possession of a controlled substance (Health & Saf. Code, § 11377). In May of that year, the court sentenced appellant to a seven-year term in case No. 291074. Although the court initially suspended execution of sentence and granted probation, six weeks later appellant admitted to having twice violated the terms of probation and the court imposed the seven-year sentence that had been suspended in case No. 291074 and imposed a consecutive eight-month term in case No. 286093.
In January 2015, the public defender petitioned the trial court for modification of appellant's sentence because one of the four prior prison terms used to enhance his sentence in case No. 291074 had been reduced to a misdemeanor by Proposition 47. (§ 1170.18, subd. (a).) The following month, the public defender withdrew the petition only as to case No. 291074, and the trial court granted the petition with request to case No. 286093, reducing the felony to a misdemeanor in that case.
Appellant subsequently sought relief under section 1170.18 in case No. 291074, and on June 30, 2015, he asked the court to reduce a prior conviction for unauthorized possession of a controlled substance (Health & Saf. Code, § 11377) in a 2007 case (No. 241139), which was the basis of one of the four one-year prior prison term enhancements in this case, from a felony to a misdemeanor. The court granted the reduction.
A week later, on July 7, 2015, the court asked the parties to brief whether an enhancement for a prior prison term should be stricken in case No. 291074 due to the court's reduction to a misdemeanor of the offense for which appellant served the prior prison term.
At a hearing on September 18, 2015, the court denied the petition to strike the prior "without prejudice," and without explanation for its ruling.
Appellant filed a timely notice of appeal.
As noted, on September 29, 2017, a panel of this Division reversed and remanded the matter to the trial court with directions to grant appellant's petition to strike the enhancement. (People v. Trimble (Sept. 29, 2017, A147345) [nonpub. opn.].)
On December 13, 2017, our Supreme Court granted the People's petition for review, and on September 26, 2018, transferred the matter back to this court with directions to vacate our original decision and to reconsider the cause in light of Buycks.
Following the transfer back to this court, we gave both appellant and respondent the opportunity to file supplemental briefs, but neither party did so.
DISCUSSION
In Buycks, our Supreme Court held that "a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to [a] misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect." (Buycks, supra, 5 Cal.5th at p. 879.) Proposition 47 took effect on November 5, 2014. (Buycks, at p. 883.)
Section 1170.18, subdivision (k) provides in relevant part: "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 . . . ."
Appellant was sentenced in the present case on May 9, 2013. There is no indication that he filed an appeal from the judgment. Hence, the judgment in which the court imposed the challenged enhancement became final 60 days after sentencing (see Cal. Rules of Court, Rule 8.308(a)), almost 16 months before the passage of Proposition 47.
"A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired. [Citation.]" (Buycks, supra, 5 Cal.5th at p. 866, fn. 5.) --------
Pursuant to the holding in Buycks, appellant may not now challenge the enhancement at issue because the judgment containing that enhancement was final when Proposition 47 took effect. (See Buycks, supra, 5 Cal.5th at p. 879.) The trial court properly denied the petition.
DISPOSITION
Our prior decision is vacated. The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.