Opinion
D068319
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. HERBERT KELM, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT (Super. Ct. No. SCD256541) APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Appeal is treated as a petition for writ of habeas corpus. Relief granted. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Allison V. Acosta and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Herbert Kelm pleaded guilty to possession of methamphetamine for sale under a plea agreement in 2014. (Health & Saf. Code, § 11378.) Kelm also admitted he had suffered a prison prior under Penal Code section 667.5, subdivision (b), and section 668 based on a 2011 felony conviction. Under the stipulated plea agreement, the trial court sentenced Kelm to three years in custody, and an additional four years under mandatory supervision.
Further statutory references are to the Penal Code unless otherwise noted.
After California voters approved Proposition 47, the Safe Neighborhoods and Schools Act of 2014, Kelm successfully petitioned to have the 2011 felony conviction designated as a misdemeanor. He then filed a postjudgment motion in this case to strike the prison prior enhancement, which the trial court denied.
In our original nonpublished opinion, we concluded Proposition 47 was not intended to have retroactive collateral consequences and affirmed the trial court order denying Kelm's motion to strike his prison prior enhancement. The California Supreme Court granted review of our decision and ordered action deferred pending disposition of People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900 (Valenzuela), which similarly held Proposition 47 did not have retroactive effect on a prison prior enhancement.
In July 2018, our Supreme Court issued People v. Buycks (2018) 5 Cal.5th 857 (Buycks), a consolidated decision in Buycks, Valenzuela, and In re Guiomar (S238888), regarding the effect of Proposition 47 on felony-based enhancements. (Buycks, at p. 871.) As discussed in more detail post, the court held that a successful Proposition 47 petitioner could subsequently challenge a felony-based enhancement based on a now reduced felony in certain circumstances. (Buycks, at p. 879.) The Supreme Court transferred this case back to us for reconsideration in light of Buycks.
Kelm and the Attorney General submitted supplemental briefs regarding the import of Buycks. They agree Kelm is entitled to relief, but the Attorney General contends that because Kelm's offense in this case is not eligible for reduction under Proposition 47, a petition for writ of habeas corpus is the only way for him to seek relief. For reasons we shall explain, we agree relief is warranted and a writ of habeas corpus is the appropriate method. Accordingly, we vacate our original opinion, treat Kelm's appeal as a petition for writ of habeas corpus, and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011, Kelm was convicted of unlawful possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), and a prison sentence was imposed. Three years later in 2014, Kelm was arrested for possession of methamphetamine for sale. He pleaded guilty to a violation of Health and Safety Code section 11378. He also admitted one of three prior conviction enhancements under Health and Safety Code section 11370.2, subdivision (c), and one of two alleged prison priors under section 667.5, subdivision (b), and section 668. The prison prior was based on the 2011 conviction. On September 18, 2014, the trial court sentenced Kelm to a stipulated term of seven years in local prison, consisting of a base term of three years, three years for the prior conviction enhancement, and one year for the prison prior. It does not appear Kelm appealed this judgment.
Proposition 47 was approved by California voters on November 4, 2014, and became effective on November 5, 2014. (Initiative Measure Prop. 47, § 14, approved on Nov. 4, 2014, eff. Nov. 5, 2014.) Proposition 47 "amended portions of the Health and Safety Code and the Penal Code to reclassify certain drug possession and theft-related offenses from felonies or wobblers to misdemeanors . . . ." (Buycks, supra, 5 Cal.5th at p. 877.) It also "created procedures to ameliorate convictions for those currently serving a sentence for a qualifying felony, as well as those who have completed their sentences for a qualifying felony, regardless of whether those judgments are final." (Ibid.)
In February 2015, Kelm filed a petition in his 2011 case seeking to have the felony conviction designated as a misdemeanor. Kelm's petition was granted.
In May 2015, Kelm filed a "Motion to dismiss prison prior because of resentencing" in this case, seeking to strike the prison prior enhancement as a result of his successful petition in the 2011 case. The court denied Kelm's motion, and he appealed.
DISCUSSION
I. Relevant Legal Principles
The resentencing provision of Proposition 47 is contained in section 1170.18. Pertinent here, section 1170.18, subdivision (k) states that "a felony conviction that is recalled and resentenced . . . 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."
The retroactive collateral impact of section 1170.18 is an issue of statutory construction, which we review de novo. (People v. Taylor (1992) 6 Cal.App.4th 1084, 1090-1091.) We defer to authoritative Supreme Court precedent under the doctrine of stare decisis. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Buycks, the California Supreme Court granted review in Buycks, Valenzuela, and Guiomar concerning "Proposition 47's effect on felony-based enhancements in resentencing proceedings under section 1170.18." (Buycks, supra, 5 Cal.5th at p. 871.) The court concluded 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 . . . enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors." (Buycks at p. 871.) The court further concluded that although "the reduction of a felony conviction to a misdemeanor conviction under Proposition 47 exists as 'a misdemeanor for all purposes' prospectively, . . . under the Estrada rule, it can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014." (Id. at p. 883; id. at p. 881 ["The Estrada rule rests on the presumption that, in the absence of a savings clause . . . , 'a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' "].)
The Court of Appeal decisions in Buycks and Guiomar involved enhancements not at issue here. (See Buycks, supra, 5 Cal.5th at pp. 871-872.)
With respect to prison priors, the court held that section 1170.18, subdivision (k) "can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure." (Buycks, supra, 5 Cal.5th at p. 890.)
Addressing Valenzuela, the court explained the defendant there was convicted of carjacking and other offenses in 2014, and the court imposed a prior prison enhancement for a 2012 conviction. (Buycks, supra, 5 Cal.5th at pp. 873-874.) After Proposition 47 went into effect and while her appeal was pending, the defendant successfully petitioned for the 2012 conviction to be redesignated as a misdemeanor. (Id. at p. 874.) The Court of Appeal declined to strike the prison prior enhancement. (Ibid.) The California Supreme Court determined that "[b]ecause Valenzuela's judgment . . . was not final when Proposition 47 took effect, the Estrada rule applies to strike her section 667.5, subdivision (b) prior felony prison term enhancement." (Id. at p. 896.) The court reversed and remanded the judgment for further proceedings. (Ibid.)
The court also noted, in the alternative, that because Valenzuela had a Proposition 47 eligible conviction in the current case, "if the resentencing court grants her petition to reduce that conviction to a misdemeanor, the court must resentence her anew in that case, and it will be required to reevaluate the applicability of the section 667.5 enhancement at that time." (Buycks, supra, 5 Cal.5th at p. 896.)
II. Analysis
Kelm and the Attorney General agree Buycks supports Kelm's request to strike his prison prior enhancement. We concur.
Kelm was sentenced on September 18, 2014, but his judgment was not yet final when Proposition 47 went into effect on November 5, 2014. (See Buycks, supra, 5 Cal.5th at p. 876, fn. 5 ["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," citing People v. Kemp (1974) 10 Cal.3d 611, 614.].) As in Valenzuela, because Kelm's judgment was not final when Proposition 47 went into effect, Estrada applies to strike the prison prior enhancement based on his now reduced felony. Kelm is entitled to have the prison prior enhancement stricken from his sentence.
The Attorney General contends that although relief is available to Kelm, he has to file a petition for writ of habeas corpus. This contention is consistent with Buycks. There, the California Supreme Court explained that "because Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected," it would "describe other available procedural mechanisms to strike such enhancements." (Buycks, supra, 5 Cal.5th at p. 892.) First, the court determined that under the full resentencing rule, "at the time of resentencing of a Proposition 47 eligible felony conviction," the trial court had to "reevaluate the applicability" of an enhancement predicated on a now reduced felony conviction. (Id. at p. 894.) Second, the court concluded the collateral consequences of Proposition 47 could "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.)
Kelm's present offense is not eligible for resentencing, so the only avenue of relief contemplated in Buycks is a petition for writ of habeas corpus. The Attorney General acknowledges we have authority to treat this appeal as a writ. We exercise our discretion to treat Kelm's appeal as a petition for writ of habeas corpus, in light of the clear grounds for striking his prison prior enhancement and in the interests of judicial economy. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal as petition for writ of habeas corpus].)
Proposition 47 applies to certain drug possession offenses (§ 1170.18, subd. (a)), but not possession for sale. --------
DISPOSITION
The appeal is treated as a petition for writ of habeas corpus, and relief is granted. The matter is remanded to the trial court for resentencing.
HALLER, J. WE CONCUR: NARES, Acting P. J. IRION, J.