Opinion
C088229
03-03-2020
THE PEOPLE, Plaintiff and Respondent, v. PETER ROBERT GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF181186)
Defendant Peter Robert Gomez pled no contest to possession for sale of a controlled substance and admitted two prior prison terms. On appeal, he contends the trial court erred in denying his earlier motion to strike these two prior prison term allegations based on Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). We agree and strike the one-year enhancements based on these prior prison term allegations. In all other respects, we affirm the judgment.
I. BACKGROUND
In 2003, 2006, and 2008, defendant was convicted of felony violations of Health and Safety Code section 11377. In 2015, the superior court redesignated these convictions as misdemeanors under Proposition 47.
In 2018, defendant was charged by information with transporting a controlled substance (count 1), possession for sale of a controlled substance (count 2), and destroying or concealing evidence (count 3). It was also alleged that he served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) for prior felony convictions in 2011 (allegation a), 1999 (allegation b), 1992 (allegation c), and 1989 (allegation d).
Undesignated statutory references are to the Penal Code.
Defendant unsuccessfully moved to dismiss allegations b, c, and d. He subsequently pled no contest to possession for sale of a controlled substance and admitted allegations b and c in exchange for an aggregate term of five years: three years for count 2 and one year each for the prior prison term enhancements, to be served as a split sentence. The prosecution dismissed the remaining counts and enhancement allegations. Under the plea agreement, if defendant successfully appealed the denial of his motion to dismiss allegations b and c, he would serve only a three-year split sentence.
In October 2018, the court sentenced defendant to an aggregative term of five years to be served as a split sentence—913 days in county jail followed by 912 days of mandatory supervision. The court granted defendant's request for a certificate of probable cause to appeal its ruling on the prison priors.
II. DISCUSSION
At the time of defendant's sentencing, section 667.5, subdivision (b) authorized a one-year sentence enhancement "for each prior separate prison term . . . for any felony; provided that no additional term shall be imposed under this subdivision for any prison term . . . prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody." (Italics added.)
The parties submitted supplemental briefing on the applicability of Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This bill limited eligibility for the one-year prison prior enhancement to people who have served a sentence for a sexually violent offense, as defined. (§ 667.5, subd. (b).) Because we conclude the enhancements must be stricken, we need not address the applicability of this new legislative change. --------
"The [italicized] phrase is commonly referred to as the 'washout rule' where a prior felony conviction and prison term can be 'washed out' or nullified for the purposes of section 667.5." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.) "According to the 'washout' rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply." (Ibid.; accord People v. Buycks (2018) 5 Cal.5th 857, 889 (Buycks).)
"At the November 4, 2014, General Election, California voters approved Proposition 47," which "reclassified as misdemeanors certain offenses that previously were felonies or 'wobblers.' " (Buycks, supra, 5 Cal.5th at pp. 870-871.) The initiative added section 1170.18, "which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors." (Buycks, supra, 5 Cal.5th at p. 871.) Further, 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 . . . ." (§ 1170.18, subd. (k).)
Defendant argues his sentence enhancements based on allegations b and c should be stricken under the washout rule now that his 2003, 2006, and 2008 convictions have been redesignated as misdemeanors. In the trial court, the prosecution argued the washout rule did not apply because reclassification of his violations of Health and Safety Code section 11377 as misdemeanors did not negate the fact he still went to prison for these offenses. On appeal, the People state merely that they disagree with defendant "but recognize[] that the Fifth District Court of Appeal's decision in People v. Warren (2018) 24 Cal.App.5th 899 (Warren) mandates that the enhancements be stricken in this case." We agree the enhancements must be stricken.
Warren was decided before Buycks and concluded that "the washout provision of section 667.5, subdivision (b), should be construed to allow a prior felony to wash out provided it is followed by a five-year period free of felony convictions and incarceration . . . , except that such incarceration shall not prevent the prior felony from washing out if it was imposed for an offense that has been designated a misdemeanor or resentenced as a misdemeanor pursuant to a petition filed under section 1170.18." (Warren, supra, 24 Cal.App.5th at p. 917.)
While it did not directly address this issue, Buycks disapproved People v. Acosta (2016) 247 Cal.App.4th 1072, "to the extent that it held that the 'misdemeanor for all purposes' language of section 1170.18, subdivision (k) alters only the status of felony convictions, not the fact that the defendant has served a qualifying prior felony prison term for purposes of a section 667.5, subdivision (b) enhancement." (Buycks, supra, 5 Cal.5th at p. 889, fn. 13.) Subsequent authorities have found this dicta persuasive and followed Warren. (People v. Baldwin (2018) 30 Cal.App.5th 648, 656-657; People v. Kelly (2018) 28 Cal.App.5th 866, 901-902.) We do as well. (See Aviles-Rodriguez v. Los Angeles Community College Dist. (2017) 14 Cal.App.5th 981, 990 ["As one appellate court has advised: 'Generally speaking, follow dicta from the California Supreme Court' "].)
III. DISPOSITION
The judgment is modified to strike the two 1-year prior prison term enhancements. As modified, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/S/_________
RENNER, J.
We concur:
/S/_________
HULL, Acting P. J.
/S/_________
MAURO, J.