Opinion
A148105
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER WILLIAM CLINE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR305306)
Appellant Christopher William Cline pleaded no contest to possession of methamphetamine for sale and admitted a one-year sentence enhancement under Penal Code section 667.5, subdivision (b) based on his having served a prior prison term for a 2008 felony petty theft. The trial court imposed a four-year sentence but suspended execution of the sentence and placed appellant on probation. Following his violation of probation, appellant moved to dismiss the prior prison term enhancement from the sentence because the 2008 petty theft had recently been designated a misdemeanor pursuant to Proposition 47 (The Safe Neighborhoods and Schools Act). The trial court denied the request and executed the suspended four-year sentence. We affirm.
BACKGROUND
In March 2014, appellant was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378); the information also alleged sentencing enhancements for three prior prison terms (Pen. Code, § 667.5, subd. (b)). In April, appellant pleaded no contest to the drug charge and admitted one of the prison priors. The enhancement was based on the prison sentence he served for a 2008 petty theft (§ 666) conviction. The remaining enhancement allegations were dismissed. In May, the trial court imposed the upper term of three years for the drug offense plus one additional year for the enhancement; the court then suspended execution of the sentence and placed appellant on probation.
All undesignated section references are to the Penal Code.
In October 2015, the trial court found appellant violated probation. In February 2016, the court indicated it was inclined to deny a further grant of probation and to execute the suspended sentence. In March 2016, appellant moved to dismiss the prior prison term enhancement from the suspended sentence. He explained that the petty theft conviction underlying the enhancement had been designated a misdemeanor under Proposition 47 pursuant to a section 1170.18 petition granted earlier that month. The court denied appellant's motion to dismiss the enhancement and ordered execution of the suspended four-year sentence, comprised of three years for the drug conviction plus one year for the prior prison term.
This appeal followed.
DISCUSSION
Appellant contends that once the offense giving rise to his prior prison term was reduced to a misdemeanor under section 1170.18, it could no longer support the prior prison term sentence enhancement under section 667.5, subdivision (b). We reject the claim.
The effect of Proposition 47 on prior prison term enhancements is currently before the California Supreme Court in several cases. (See, e.g., People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 7, 2016, S232900.) --------
Section 667.5, subdivision (b), provides that where a current offense is any felony for which a prison sentence is imposed, "the court shall impose a one-year term for each prior separate prison term . . . imposed . . . for any felony." Imposition of the enhancement "requires proof 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." (People v. Tenner (1993) 6 Cal.4th 559, 563.) Appellant contends the first element is no longer present, because his 2008 felony petty theft conviction has been reduced to a misdemeanor "for all purposes" (§ 1170.18, subd. (k)).
"Proposition 47 [made] certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 1170.18, subdivision (a) provides that a person serving a sentence for a felony conviction who would have been guilty of a misdemeanor under Proposition 47 may petition for a recall of sentence and request resentencing. Section 1170.18, subdivision (f) provides a similar procedure for a person who has completed a sentence for a felony conviction to file an application to have the felony designated as a misdemeanor. Any felony conviction that is reduced to a misdemeanor under these provisions "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
Appellant argues that, due to section 1170.18, subdivision (k), the 2008 petty theft conviction cannot serve as the basis for the one-year section 667.5, subdivision (b) enhancement. However, the section 1170.18 procedures do not provide for "either the recall and resentencing or the redesignation, dismissal, or striking of sentence enhancements." (People v. Jones (2016) 1 Cal.App.5th 221, 228, review granted Sept. 14, 2016, S235901.) Indeed, the procedures set forth in section 1170.18 that must be followed to obtain the resentencing and redesignation benefits of Proposition 47 indicate the electorate's intent for limited prospective application of the relief available under the new law. (People v. Shabazz (2015) 237 Cal.App.4th 303, 313-314; People v. Rivera (2015) 233 Cal.App.4th 1085, 1100.)
Appellant's reliance on People v. Park (2013) 56 Cal.4th 782, is misplaced. After the defendant in Park successfully completed probation for a "wobbler" offense that was charged as a felony, the trial court reduced the offense to a misdemeanor under section 17, subdivision (b)(3). (Park, at p. 787.) The following year, the defendant was charged with a separate crime, and the prosecution also alleged a five-year serious felony sentence enhancement under section 667, subdivision (a), based on the prior felony conviction that had been reduced to a misdemeanor. (Park, at pp. 787-788.) The trial court imposed the sentence enhancement, but the Supreme Court reversed. (Id. at pp. 788, 806.) The Court reasoned that when the felony was reduced to a misdemeanor, it became a "misdemeanor for all purposes" under section 17, subdivision (b), and thus could not be the basis for a serious felony enhancement in a subsequent criminal proceeding. (Park, at pp. 795, 798.) But the court noted there was "no dispute that . . . defendant would be subject to the section 667(a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." (Park, at p. 802.) That is the situation here: appellant was convicted of the present crime and the sentence enhancement was imposed before the offense underlying the enhancement was reduced to a misdemeanor. (See People v. Scott (2014) 58 Cal.4th 1415, 1423 ["a defendant is 'sentenced' when a judgment imposing punishment is pronounced even if execution of the sentence is then suspended. A defendant is not sentenced again when the trial court lifts the suspension of the sentence and orders the previously imposed sentence to be executed."].)
By analogy to Park, appellant remains subject to the section 667.5, subdivision (b) enhancement. (See People v. Diaz (Feb. 17, 2017, B269048) ___ Cal.App.5th ___ [trial court erred in striking § 667.5, subd. (b) enhancement following reclassification of prior felony]; People v. Abdallah (2016) 246 Cal.App.4th 736, 747-748 [Proposition 47 precludes court from using prior felony for prior prison term enhancement where defendant is sentenced after prior conviction has been reduced to misdemeanor].) The trial court did not err in ordering execution of the full suspended sentence imposed in 2014.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.