Opinion
A146693
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGELA NICOLE WALKER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081216A)
Angela Nicole Walker was found guilty by a jury of two counts of second degree burglary, one count of grand theft and one count of possession of a controlled substance. She raises a single issue. She argues the trial court was wrong to impose a one-year enhancement for a prior term in state prison after her prior crime was reduced to a misdemeanor before she was sentenced in this case. We agree and strike the enhancement, but otherwise affirm.
BACKGROUND
In light of the single issue Walker raises on appeal, we will dispense with a discussion of the facts supporting the jury's verdict. We will instead focus on the nature of the offenses and the sentence imposed by the trial court.
An information charged Walker with two counts of second degree burglary in violation of Penal Code section 460, subdivision (b), one count of grand theft in violation of section 487, subdivision (a) and one count of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). Three other counts were dismissed when the prosecution stipulated to Walker's motion to strike.
Unless otherwise indicated, further references to statutes will be to the Penal Code. --------
The information also alleged Walker was ineligible for probation under section 1203, subdivision (e)(4) due to her convictions for seven prior crimes. Two of those prior crimes were first degree burglaries also alleged as serious or violent felonies that would require Walker's sentence to be doubled under section 1170.12, subdivision (c)(1), and two of them were also alleged as the basis for one year enhancements under section 667.5, subdivision (b) because Walker served time in prison for each of them. One prison term was served for the first degree burglaries, and the other was for a conviction in 2010 for receiving stolen property in violation of section 496, subdivision (a).
The jury found Walker guilty of all four counts alleged in the information, and the court found all the prior crime allegations and enhancements were true. At the time the court made the true finding under section 667.5, subdivision (b) for the time that Walker served in prison for the 2010 stolen property offense, it was advised that offense had been reduced to a misdemeanor under Proposition 47 (§ 1170.18, subd. (g)).
Walker moved the court to dismiss her prior strikes for first degree burglary under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied the motion. The court sentenced Walker to the low term of 16 months for one count of second degree burglary, doubled due to one prior serious or violent felony conviction for a total of 32 months. On the second count of second degree burglary Walker was given a consecutive one third the mid-term sentence, or eight months, to be doubled due to her other prior serious or violent felony for a total of 16 months. A three-year concurrent sentence for the grand theft was stayed under section 654. She was also given a concurrent 20-day sentence for the controlled substance offense. The court imposed two concurrent one-year enhancements for prior prison terms under section 667.5 subdivision (b), one for the time served for the first degree burglaries and the other for the 2010 receiving stolen property conviction that had been reduced to a misdemeanor. Thus, the total prison term imposed was four years, and the prior prison term enhancements do not affect the length of Walker's prison sentence.
Walker's appeal is timely.
DISCUSSION
Walker argues that the one-year enhancement imposed under section 667.5, subdivision (b) for her service of a prison term for her 2010 conviction for possession of stolen property must be stricken because that crime was reduced to a misdemeanor prior to sentencing in this case. Applying and following the principles articulated in People v. Park (2013) 56 Cal.4th 782 (Park) and People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah), we agree.
In Park, our Supreme Court held that, unless the legislature specifies otherwise, a prior felony reduced to a misdemeanor under section 17, subdivision (b)(3) before a defendant is sentenced for a later crime no longer qualifies as a prior serious felony conviction that could be used to enhance the defendant's sentence under section 667, subdivision (a). (Park, supra, 56 Cal.4th at p. 798.) The Park holding was largely based on the language in section 17, subdivision (b)(3) that a reclassified crime becomes a "misdemeanor for all purposes" and the cases interpreting and applying that language. (Id. at p. 793.)
Abdallah observes that Proposition 47 in section 1170.18, subdivision (k) uses the same phrase as section 17, subdivision (b)(3). A crime reduced to a misdemeanor under the act is a "misdemeanor for all purposes." (§ 1170.18, subd. (k).) Applying and following Park, the Abdallah court concluded that once Abdallah's prior offense was recalled and resentenced as a misdemeanor, it was a misdemeanor for all purposes and could not be used under section 667.5, subdivision (b) to enhance his sentence. (Abdallah, supra, 246 Cal.App.4th at p. 746.) So too, here.
The prior prison enhancement under section 667.5, subdivision (b) requires the prosecution to prove that "the defendant ' "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ' " (Abdallah, supra, 246 Cal.App.4th p. 742.) When Walker's 2010 felony was reclassified as a misdemeanor it could no longer be considered a previous felony conviction, and the first element of the section 667.5 subdivision (b) test was not met.
Walker's request for judicial notice filed May 9, 2016, is denied. The requested information is not necessary for our analysis of the issue raised in this appeal.
DISPOSITION
The one-year sentence enhancement imposed by the trial court under section 667.5, subdivision (b) for Walker's 2010 conviction in Solano County for receiving stolen property in violation of section 496, subdivision (a) shall be stricken from the judgment. In all other respects, the judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.