Opinion
G052425
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL LUNA, Defendant and Appellant.
Buckley & Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND GRANTING PETITION FOR REHEARING; CHANGE IN JUDGMENT
Defendant filed a petition for rehearing, arguing that once his felony conviction was reduced to a misdemeanor, his three remaining priors were subject to the five-year washout period. Because the trial court never addressed this issue, he asks we remand to permit the trial court to do so. We asked the Attorney General for a response, which we have received. The Attorney General agrees with defendant that remand is appropriate. We agree that given the circumstances, the request is appropriate, and accordingly, the petition for rehearing is GRANTED.
The opinion is hereby modified as follows:
1. On page 1, in the first paragraph, "Affirmed as modified" is modified to: "Reversed and remanded."
2. On page 2, last sentence of first full paragraph, is modified to read: "Additionally, defendant's other priors must be reevaluated to determine if they are subject to the five-year washout period. Accordingly, we reverse and remand."
3. On page 7, above the heading for the disposition section, the following paragraph is added: "Defendant also argues his remaining prison priors are subject to the five-year washout period. Because the trial court ruled the conviction was still a prison prior, it never addressed this issue, and the record on appeal is insufficiently developed for us to do so. Accordingly, we remand for the trial court to determine whether the remaining priors are subject to the washout period."
4. On pages 7 and 8, the disposition section is stricken and replaced with the following: "The judgment is reversed and remanded for further proceedings consistent with this opinion."
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVW1300011) OPINION Appeal from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Affirmed as modified. Buckley & Buckley and Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
This is an appeal from a sentencing decision based on the rather complex series of procedural events that we will discuss in detail below. The ultimate question posed is whether under Proposition 47, a felony redesignated as a misdemeanor can serve as the basis for a prison prior enhancement under Penal Code section 667.5, subdivision (b). We conclude that such a misdemeanor cannot do so, and accordingly, we affirm as modified.
Subsequent statutory references are to the Penal Code unless otherwise indicated. --------
I
FACTS
In 2013, a jury found defendant Ismael Luna guilty of first degree burglary (§ 459, count one), possession of a firearm by a felon (§ 29800, subd. (a)(1), count two), and possession of ammunition by a felon (§ 30305, subd. (a)(1), count three). A number of enhancements and priors were found true, including, as relevant here, four prison priors (§ 667.5, subd. (b)). One of the felony priors was a 2009 conviction for possession of a controlled substance pursuant to former Health and Safety Code section 11377, subdivision (a).
Defendant was originally sentenced in 2013 to the upper term of six years on the burglary, with concurrent sentences on the remaining counts. Although the minute order and abstract of judgement reflected four one-year sentences on the prison priors, the transcript of the proceedings did not mention them. Because of the uncertainty with respect to whether the trial court intended to impose sentence on the priors, or alternatively, to strike them, we reversed the sentence on appeal and remanded the matter for a new sentencing hearing in December 2014. (People v. Luna (Dec. 30, 2014, G050272) [nonpub. opn.].)
Meanwhile, in November 2014, the voters approved Proposition 47, the "Safe Neighborhood and Schools Act." Proposition 47 reclassified certain offenses from felonies to misdemeanors and created a postconviction resentencing procedure for those convicted of felony offenses that have been reclassified. (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1093.) Among the crimes reclassified was the possession of a controlled substance. (§ 1170.18, subds. (a), (b).)
In April 2015, the court held a resentencing hearing. The court indicated it had intended, at the first sentencing hearing, to impose sentence on the priors. As the court began to impose sentence, however, it realized that at least one of the priors could be impacted by Proposition 47, and those issues must be resolved before sentence was imposed. Accordingly, the sentencing hearing was continued.
In May, defendant was granted relief under Proposition 47 on his 2009 conviction for possession of a controlled substance. That offense, which had been the fourth felony prior that was found true at the time of the 2013 trial, was reduced to a misdemeanor pursuant to section 1170.18.
The continued resentencing hearing took place in July. At that time, both parties argued about the import of the reduction of the possession prior to a misdemeanor. The prosecution argued that Proposition 47 provided no basis for sentencing relief for prison priors, while defendant argued, essentially, that the prior "felony" no longer existed as a matter of law.
The trial court discussed the nature of the remand and our comments in the prior opinion about why resentencing was warranted. The trial court stated this court wanted the trial court "to go back to [the date of the original sentencing], to let them know, let the defendant know, and everybody know, what my intended sentence was with the priors. That is it; not subsequent action." The trial court felt it lacked "jurisdiction to revisit those prior convictions from 2013 when they were felonies."
Accordingly, the court sentenced defendant to one year on each of the four felony prison priors, including the controlled substance offense which had been classified as a misdemeanor. The court further sentenced defendant to the upper term of six years on the burglary offense, and concurrent terms on the remaining offenses, for a total of 10 years, less time served.
Defendant now appeals.
II
DISCUSSION
This court must decide whether a felony conviction that has been redesignated as a misdemeanor may serve as the basis for a prior prison enhancement under section 667.5, subdivision (b). Because this is a matter of statutory construction, our review of this issue on appeal is de novo. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
As we noted above, possession of a controlled substance is one of the offenses reclassified as a misdemeanor under Proposition 47. (§ 1170.18, subds. (a), (b).) Section 1170.18, subdivision (a), states that an individual "currently serving a sentence" may petition for resentencing under section 1170.18, subdivision (a), of the statute. Under section 1170.18, subdivision (f), states someone who has "completed his or her sentence" of a reclassified offense may apply to have the conviction reclassified as a misdemeanor. Section 1170.18, subdivision (k), which was also enacted as part of Proposition 47, states in relevant part: "Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) [of section 1170.18] shall be considered a misdemeanor for all purposes . . . ."
"'[S]ection 667.5[, subdivision] (b), . . . provides a special sentence enhancement for [a] particular subset of "prior felony convictions" that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment. . . .'" (People v. Jones (1993) 5 Cal.4th 1142, 1148 (Jones ).) It is intended to "'"to punish individuals" who have shown that they are "'hardened criminal[s] who [are] undeterred by the fear of prison.'"' [Citations.]" (People v. Abdallah (2016) 246 Cal.App.4th 736, 742 (Abdallah ).) 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."' [Citations.]" (Ibid., fn. omitted.)
The question of whether a redesignated misdemeanor can serve as the basis for a sentence enhancement under section 667.5, subdivision (b), was addressed in Abdallah. The defendant in that case was charged with several felony counts, including possession of methamphetamine while armed with a firearm. It was further alleged the defendant was subject to a prior prison enhancement under section 667.5, subdivision (b). The enhancement allegation was based on a prison term served for a 2002 felony, and then a subsequent conviction in 2011, which was within five years of the completion of his earlier term. The defendant was convicted, and prior to sentencing, he obtained an order reclassifying his 2011 offense as a misdemeanor. At sentencing, the trial court imposed the one-year enhancement under section 667.5, subdivision (b). (Abdallah, supra, 246 Cal.App.4th at pp. 739-740.)
On appeal, the defendant argued the enhancement was invalid. He contended that because his 2011 felony conviction had been reclassified as a misdemeanor under Proposition 47, he had not committed a felony conviction within five years of completing his prison term for the 2002 felony conviction. The Attorney General argued the reclassification did not change the "fact [that the defendant] committed a felony offense less than five years after his release from custody for a prior felony." (Abdallah, supra, 246 Cal.App.4th at p. 743.)
The court rejected the Attorney General's argument. "Proposition 47 borrowed the 'for all purposes' language of section 1170.18, subdivision (k), from section 17, subdivision (b), which describes the effect of a judicial declaration that a wobbler offense is a misdemeanor. (See § 17, subd. (b)(3) [where a crime is a wobbler, 'it is a misdemeanor for all purposes . . . . [¶] . . . [¶] [w]hen . . . the court declares the offense to be a misdemeanor'].)" (Abdallah, supra, 246 Cal.App.4th at p. 745.)
The court explained that in People v. Park (2013) 56 Cal.4th 782 (Park), the Supreme Court had relied on this "for all purposes" language in reversing a prior serious felony conviction enhancement (see § 667, subd. (a)) that the trial court had imposed based on an offense that another court had previously declared to be a misdemeanor under section 17(b). "The Supreme Court held that 'when the court in the prior proceeding properly exercised its discretion by reducing the [felony] conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence.' [Citation.] The court observed that . . . 'reduction of a wobbler to a misdemeanor under . . . section 17[, subdivision] (b) generally precludes its use as a prior felony conviction in a subsequent prosecution.' [Citation.]" (Abdallah, supra, 246 Cal.App.4th at pp. 745-746.)
Accordingly, the court determined "[t]he same logic applies to sections 667.5, subdivision (b), and 1170.18, subdivision (k). [The fourth requirement of s]ection 667.5, subdivision (b), excludes from the prior prison term enhancement a defendant who has neither committed 'an offense which results in a felony conviction' nor been subject to [a prison term] within five years of release on parole or official discharge from another felony conviction resulting in the defendant's incarceration. Once the trial court recalled [the defendant's] 2011 felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k), reclassified that conviction as a misdemeanor 'for all purposes.' [Citation.] Therefore, at the time of sentencing in this case, [the defendant] was not a person who had committed 'an offense which result[ed] in a felony conviction' within five years after his release on parole for his prior conviction. [Citations.] Thus, the trial court erred by imposing the one-year sentence enhancement under section 667.5, subdivision (b)." (Abdallah, supra, 246 Cal.App.4th at p. 746.)
While we recognize this issue will ultimately be decided by the California Supreme Court, we find Abdallah's logic compelling, and adopt its reasoning. The 2009 conviction, once reduced to a misdemeanor, cannot be the basis for a sentence enhancement under section 667.5, subdivision (b). We shall, accordingly, order the one-year enhancement stricken from defendant's sentence.
The trial court's concerns with respect to its jurisdiction on remand does not alter our decision. In In re Estrada (1965) 63 Cal.2d 740, the California Supreme Court held that legislatively mandated sentence reductions must be applied in all cases where the judgment is not final. "The holding in Estrada was founded on the premise that '"[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law."'" (People v. Brown (2012) 54 Cal.4th 314, 325.) The imposition of a sentence enhancement based on the felony status of a prior crime falls within this rule. Accordingly, the trial court had the legal authority to address the change of circumstances due to the reduction of the 2009 felony to a misdemeanor.
III
DISPOSITION
The judgment is affirmed as modified. The clerk of the trial court is directed to prepare an amended abstract of judgment striking the one-year enhancement under section 667.5, subdivision (b), as to the 2009 conviction for possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The abstract shall reflect an aggregate sentence of nine years. A copy of the amended abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation.
MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.