Opinion
E070873
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JASON DONALD MAGARRO, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1501741) OPINION APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed as modified. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In a plea to the court, defendant and appellant Jason Donald Magarro pleaded guilty as charged to felony possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)(1); count 1); felony attempted second degree burglary of a vehicle (§§ 459/664, subd. (a), 460, subd. (b); count 2); misdemeanor unlawful possession of a stun gun with a prior conviction (§ 22610, subd. (a); count 3); and misdemeanor possession of burglary tools (§ 466; count 4). Defendant also admitted that he had suffered four prior prison terms (§ 667.5, subd. (b)). In return, defendant was granted probation on various terms and conditions of probation.
All future statutory references are to the Penal Code unless otherwise stated.
Subsequently, defendant violated his probation several times. Eventually, the trial court terminated defendant's probation and sentenced him to a total term of seven years eight months in state prison, consisting of three years on count 1, plus eight months on count 2, and consecutive one-year terms for each of the four prior prison term enhancements. Defendant was later resentenced to seven years four months. On appeal, defendant argues the trial court violated his constitutional due process right when it sentenced him to the statutory maximum of seven years eight months instead of the maximum sentence of three years eight months agreed to in his plea agreement. For reasons explained, we disagree.
We note the parties' initial briefs refer to defendant's sentence as seven years eight months. As such, to avoid any confusion and for the sake of consistency, we will refer to defendant's original sentence of seven years eight months where relevant.
During the pendency of this appeal, defendant successfully petitioned under Proposition 47 (the Safe Neighborhoods and Schools Act) to have two of his four prior convictions reduced to misdemeanors (§ 1170.18). And, following oral argument, we granted defendant's request to file a supplemental brief. In his supplemental brief, defendant contends this court should reduce his sentence by two years since two of his one-year prior prison term enhancements have been reduced to misdemeanors under Proposition 47. In the alternative, defendant asserts this court should remand the case to the trial court for reentry of his plea and/or for resentencing, in light of the other irregularities in his plea and sentence. Pursuant to People v. Buycks (2018) 5 Cal.5th 857 (Buycks), we strike the two prior prison terms enhancements, and decline defendant's request to remand the case to the superior court. Accordingly, we modify the judgment by striking the two prior prison term enhancements but otherwise affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
According to defendant's plea form, on November 3, 2014, defendant willfully and unlawfully possessed ammunition when he was prohibited from possessing a weapon or ammunition. Defendant also unlawfully attempted to enter a vehicle not belonging to him with the intent to commit larceny. In addition, defendant unlawfully possessed tools used for burglary with the intent to break and enter, and a stun gun after being previously convicted of misuse of a stun gun.
On November 4, 2014, the Orange County District Attorney's office filed a felony complaint charging defendant with felony possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 1); felony attempted second degree burglary of a vehicle (§§ 664, subd. (a)/459, 460, subd. (b); count 2); misdemeanor unlawful possession of a stun gun with a prior (§ 22610, subd. (a); count 3); and misdemeanor possession of burglary tools (§ 466; count 4). The complaint also alleged that defendant had suffered four prior prison terms (§ 667.5, subd. (b)).
On January 30, 2015, in a plea to the court, defendant pleaded guilty to all of the offenses as charged and admitted the truth of the four prior prison term allegations. Prior to pleading guilty, defendant executed a written "Advisement and Waiver of Rights for a Felony Guilty Plea" form (plea form). On the plea form, in pertinent part, defendant placed his initials next to paragraph 2 which provides, "I understand that I am pleading guilty, and admitting the following offenses, special punishment allegations, and prior convictions, carrying the possible penalties as follows:" A chart then listed the potential sentences for counts 1 and 2 as "16 - 2 - 3," for counts 3 and 4 as "0 - 180 d" and for each of the four prison priors as "1 yr." This section also calculated the "Total Penalty Years" for count 1 as seven years, and for count 2 as eight months, and stated "misdo." for counts 3 and 4. Furthermore, this section calculated the "Maximum Total Punishment" as seven years eight months. Defendant also initialed paragraph 24 which states, "Proposed disposition: I voluntarily agree and understand the court will: (Initial all that apply) [¶] . . . [¶] (e) Grant me probation under the terms and conditions set forth on the attached pages 6 and 7 that I have initialed and signed. I understand I have the right to reject probation and have the court impose a final sentence. However, I agree to accept probation on the terms and conditions set forth on the attached pages 6 and 7. I further understand that if I am found in violation of any of the terms or conditions of probation, the court may sentence me to . . . state prison . . . for a maximum period of 3 years and 8 months." The plea form was signed by defendant and his attorney. The deputy district attorney initialed the plea form and noted, "Plea to ct." In addition, the line next to "Plea to the Court" was checked.
Defendant also executed a written "Admission of Prior Convictions and Prior Prison Terms" form (admission form). On the admission form, defendant initialed paragraph 1 which states, "I understand the complaint or Information alleges that I have sustained the following . . . prior prison term(s) . . ." and then lists the four prior prison terms. This paragraph also indicates that the "Years Increase in Current Sentence" is one year for each prior prison term. Defendant also initialed paragraph 2 which indicates a "Total increase in Sentence" of four years. In addition, he initialed paragraph 3 which states, "I understand that if I admit the . . . prior prison term(s) set forth in paragraph 1 of this form, my admission will have the effect on my sentence as indicated on line 2, the reverse side of this form or as set forth below." The next page in the clerk's transcript, which is presumably the reverse side of the admission form, states in pertinent part: "2. Effect on sentence: [¶] . . . [¶] (P.C. § 667.5(b)) For prior conviction(s) alleged pursuant to Penal Code Section 667.5(b), my current sentence to State Prison may be increased by 1 year for each such prior conviction for which I served a separate prison term . . . ."
Immediately after defendant pleaded guilty to the charges and admitted the truth of the prior prison term allegations, the Orange County Superior Court suspended imposition of sentence and placed defendant on supervised probation for a period of three years on various terms and conditions of probation, including serving 180 days in county jail. The court did not recite any sentencing agreement.
On May 5, 2015, defendant's probation was transferred to San Bernardino County at his request.
On September 22, 2015, the San Bernardino County Superior Court found that defendant had violated his probation. The court thereafter reinstated defendant's probation on modified terms and conditions of probation.
Defendant violated his probation again, and on June 28, 2016, defendant admitted that he had violated his probation. Thereafter, the court again reinstated defendant's probation on modified terms.
On February 28, 2017, a petition to revoke defendant's probation was filed, alleging that defendant had violated four terms and conditions of his probation by violating the law, failing to follow all reasonable directives of his probation officer, possessing a controlled substance, and possessing drug paraphernalia. Specifically, the petition noted that on January 26, 2017, defendant was arrested and cite-released for possession of drug paraphernalia by the Orange County Sheriff's Department; on January 31, 2017, defendant failed to appear for an office visit; and February 8, 2017, defendant was arrested and cite-released for possession of a controlled substance by the Irvine Police Department; and on February 12, 2017, defendant was arrested by the Los Angeles County Sheriff's Department for allegedly committing attempted murder, assault with a deadly weapon on a peace officer, resisting a peace officer, possession of a controlled substance, possession of drug paraphernalia, and assaulting a flight crew member. Defendant's probation was subsequently revoked.
On June 29, 2018, defendant filed a motion for specific performance of the plea agreement. Defendant argued that if the court concludes he violated probation, the court should then sentence him to three years eight months, "the maximum sentence that was indicated on his original plea."
A formal probation revocation hearing was held on July 10, 2018. Following admission of evidence, the trial court found that defendant had violated his probation. The court thereafter terminated defendant's probation and sentenced him to a total term of seven years eight months in state prison with 532 days of credit for time served. The sentence consisted of consecutive terms of three years on count 1, eight months on count 2, and one year for each of the four prior prison term allegations. Prior to sentencing, defense counsel explained that she had unsuccessfully attempted to contact the Orange County deputy public defender who represented defendant at his plea hearing but argued that, based on the plea form, the maximum term defendant could be sentenced to was three years eight months. The prosecutor stated that defendant could be sentenced to the maximum term of seven years eight months but requested the opportunity to subpoena the Orange County deputy public defender. The prosecutor noted that there was a separate admission page for the prior prison term enhancements which provided for an increased sentence of four years.
The court sentenced defendant to a total term of seven years eight months, reasoning as follows: "So [the plea form is] governed by contract principals [sic], right? Is there an ambiguity in the contract, is it not? But the contract, such as it is, and I say that because it's governed by contract principles. [The plea form is] not strictly speaking a contract, but close enough for our purposes analytically. I have to look at the whole document, right? I have to look at all of it to see if there is some sort of ambiguity or inconsistency in the contract. I don't think there is. I think it makes it—seems to make sense to me that looking at the document, [defendant] admitted that he had suffered prison terms; that he admitted suffering for or having committed four violations of the law. He specifically initialed and signed the document, acknowledging that his sentence could be increased by four years because of the prior prison terms. He did so represented by counsel. [¶] The reference to three years, eight months on Page 3 is consistent with the maximum sentence that could be imposed on the underlying convictions, although, not really, because two of them are misdemeanors. And he could do a consecutive 180 days on each of those, right? So his actual exposure is closer to four years, eight months when we figure in the misdemeanors, plus the four prior prison term enhancements. So, if anything, I mean, perhaps that three years, eight months reflects an understanding that he wouldn't be sentenced to the—to the additional time under the misdemeanors. And, specifically, he gave up the right to be sentenced by the initial judge who took the plea, also. [¶] There's nothing in the document itself which suggests to me that there was an intent to stay or otherwise not impose the four years. Everything about the document to me, says that this was contemplated as part of the bargain. [¶] The defense is correct to specifically enforce the plea agreement. And that's exactly right, but the question is what was the agreement, right? And I understand your position is no, that three years, eight months on Page 3 [of the plea form] is dispositive, that's the beginning and the end of it, but that would require ignoring other parts of the contract, including that separate addendum, which I find pretty compelling. . . . [¶] There are 58 counties in this state. I would venture to guess there are 58 different ways pleas are taken. And when probation is transferred, here we are trying to figure out what did they mean. . . . I don't have any authority to transfer it back to Orange County. I have to make the decision based on the evidence I have before me. If we had parole evidence, if you will, to interpret the contract, I'd hear it, but we don't. I'm just left with the four corners of the document. [¶] So with that, I am going to revoke [defendant]'s probation. I will say, based on the facts presented, I do think the imposition of that seven year, eight month term is appropriate."
On July 12, 2018, defendant filed a timely notice of appeal and request for a certificate of probable cause. The court granted defendant's request for a certificate of probable cause on July 16, 2018.
On October 1, 2018, the Department of Corrections and Rehabilitation sent a letter to the San Bernardino Superior Court, noting an error in defendant's statutory maximum sentence. Specifically, defendant's consecutive sentence for the attempted burglary of a vehicle should have been four months, rather than eight months.
On January 25, 2019, the San Bernardino County Superior Court resentenced defendant to seven years four months and forwarded an amended abstract of judgment to the Department of Corrections which was filed on January 28, 2019.
On June 4, 2019, this court held oral argument on the matter and the case was submitted for decision.
Thereafter, on June 12, 2019, the Orange County Superior Court reduced two of defendant's prior possession of methamphetamine convictions in violation of Health and Safety Code section 11377, subdivision (a), to misdemeanors (case Nos. 07HF1295 and 10SF0354).
On June 20, 2019, defendant filed an "Application to Unsubmit Case and Leave to File Supplemental Brief."
On July 16, 2019, this court granted defendant's application to vacate submission of the case and to file a supplemental brief "only as to the newly raised issue of the superior court's reduction to misdemeanors of the felonies underlying [defendant's] two one-year prior-felony-prison-term enhancements (Pen. Code, § 667.5, subdivision (b))."
III
DISCUSSION
A. Plea Agreement
Defendant argues the trial court violated his right to due process when it sentenced him to the statutory maximum of seven years eight months instead of the maximum sentence of three years eight months agreed by the parties in his plea agreement. Noting the differences between a negotiated plea agreement and a plea to the court, the People assert that the trial court properly sentenced defendant to seven years eight months because he was not promised a lesser maximum sentence at the time he entered his guilty plea. To resolve defendant's claim of error, we must construe the intent of the parties and the trial court as manifested in the language of the offers, the plea agreement, and the resulting judgment.
1. Governing Law
a. Plea Bargains
"'A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.'" (People v. Ames (1989) 213 Cal.App.3d 1214, 1217; see People v. Feyrer (2010) 48 Cal.4th 426, 436 ["A plea agreement 'is a tripartite agreement which requires the consent of the defendant, the People and the court.'"], superseded by statute on another ground as stated in People v. Park (2013) 56 Cal.4th 782, 789, fn. 4; People v. Segura (2008) 44 Cal.4th 921, 929-930 [same]; People v. Rabanales (2008) 168 Cal.App.4th 494, 502.) Only a prosecutor is authorized to negotiate a plea agreement, and a trial court may not substitute itself in the place of the prosecutor in the negotiation process or agree to a disposition over the objection of the prosecutor. (Segura, at p. 930.) Under the due process clause, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." (Santobello v. New York (1971) 404 U.S. 257, 262.) In other words, if a negotiated plea is accepted by the prosecutor and approved by the trial court, the defendant cannot be sentenced on the plea to a harsher punishment than that specified in the plea agreement. (§ 1192.5; People v. Masloski (2001) 25 Cal.4th 1212, 1217.) When, after a negotiated plea, a trial court imposes punishment significantly exceeding that to which the parties agreed, the defendant is entitled to relief. (People v. Kim (2011) 193 Cal.App.4th 1355, 1359, 1362.)
In short, a negotiated plea bargain is like an enforceable contract, with the defendant pleading in exchange for assurances as to the length of his sentence. (People v. Blount (2009) 175 Cal.App.4th 992, 997.) As such, a plea agreement is interpreted according to contract principles. (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).) The goal of contract interpretation is to give effect to the mutual intention of the parties as objectively expressed in the contract. (Ibid.) Where contractual language is clear and explicit, we determine intent from the written terms alone. (Ibid.) If the contractual language is ambiguous or uncertain, extrinsic evidence is properly considered to ascertain the reasonable expectations of the parties. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) An ambiguity may appear on the face of a contract, or extrinsic evidence may reveal a latent ambiguity in the contract. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) When and if an ambiguity is identified, it is resolved in favor of the defendant, because the proper focus is on what induced the defendant to plead guilty. (In re Timothy N. (2013) 216 Cal.App.4th 725, 734; People v. Toscano (2004) 124 Cal.App.4th 340, 345.)
When deciding whether there is an ambiguity, the trial court should provisionally receive (without actually admitting) the extrinsic evidence concerning the parties' intentions to determine whether the language is reasonably susceptible to the interpretation urged by the party. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet).) If the language is reasonably susceptible to the urged interpretation, the court should then admit the evidence and use it to determine the parties' objectively expressed mutual intentions. (Ibid.; Shelton, supra, 37 Cal.4th at p. 767.) To determine the parties' intent, the court considers the language in the agreement, as well as such objective matters as the surrounding circumstances under which the parties negotiated the contract, the subject matter of the contract, and the subsequent conduct of the parties prior to the development of the controversy. (Shelton, at p. 767; Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56 Cal.App.4th 1441, 1449.) "The question is what the parties' . . . objective expressions of intent would lead a reasonable person to believe." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
b. Open Plea
An open or indicated plea, in contrast to a plea bargain, is "one under which the defendant is not offered any promises. [Citation.] In other words, the defendant 'plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later chose to impose it.'" (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.) In connection with an open plea, "'the court may indicate "what sentence [it] will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea."'" (People v. Clancey (2013) 56 Cal.4th 562, 570 (Clancey).) An indicated sentence, however, is not a promise from the court, and there is no requirement that the People consent to the plea. (Id. at pp. 570, 575; People v. Turner (2004) 34 Cal.4th 406, 418-419.)
By indicating a sentence, "the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision." (Clancey, supra, 56 Cal.4th at p. 575.) Accordingly, if the factual predicate underlying an indicated sentence is disproved at trial, the court may withdraw that indicated sentence. (Id. at p. 576.) Furthermore, the court retains broad discretion to modify an indicated sentence even if its factual predicate is not disproved. (Id. at pp. 576-577.) In particular, "[t]he development of new information at sentencing may persuade the trial court that the sentence previously indicated is no longer appropriate for this defendant or these offenses. Or, after considering the available information more carefully, the trial court may likewise conclude that the indicated sentence is not appropriate." (Id. at p. 576.) Therefore, a court may sentence a defendant differently than an indicated sentence based on additional new information or a reexamination of the relevant circumstances. (Ibid.)
In Clancey, supra, 56 Cal.4th 562, our Supreme Court stated: "[A]n indicated sentence is not a promise that a particular sentence will ultimately be imposed at sentencing. Nor does it divest a trial court of its ability to exercise its discretion at the sentencing hearing, whether based on the evidence and argument presented by the parties or on a more careful and refined judgment as to the appropriate sentence . . . . [T]he utility of the indicated-sentence procedure . . . depends to a great extent on whether the record then before the court contains the information about the defendant and the defendant's offenses that is relevant to sentencing." (Id. at p. 576, italics omitted.) Therefore, a trial court retains its "full discretion" at sentencing to select a fair and just punishment despite any previous indicated sentence. (Ibid.)
c. Standard of Review
On appeal, we review de novo the trial court's threshold ruling on whether the contractual language is reasonably susceptible to the urged interpretation. (Winet, supra, 4 Cal.App.4th at p. 1165.) We also independently determine the meaning of the contract if no extrinsic evidence was admitted. (Id. at p. 1166; Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439.)
2. Analysis
Here, defendant's plea was an open plea to the court, not a plea bargain. Although not mentioned by either party, the plea form specifically states it is an open plea. Contrary to defendant's claim, the deputy district attorney did not sign the plea form and explicitly noted, "Plea to ct." Moreover, the line next to "Plea to the Court" on the plea form was checked. The record accordingly indicates that the offer was not negotiated by or made with the approval of the People.
The record further suggests that it was a proper open plea offer—that is, there is no evidence to indicate the trial court bargained or negotiated the terms of the plea with defendant. Instead, it appears the court offered defendant probation if he pleaded as charged in the complaint with a maximum sentence of seven years eight months. In other words, if defendant pleaded guilty to all the charges and admitted the truth of all of the prior prison term allegations, defendant would be placed on probation with a maximum sentence of seven years eight months, which defendant freely accepted and appreciated. (See Clancey, supra, 56 Cal.4th at pp. 575-576.) Nor did the trial court promise defendant that if he failed to abide by the terms of his plea, he would be sentenced to only three years eight months in prison. (See id. at p. 575.)
At the plea hearing, defendant was not offered a lesser maximum sentence as an inducement to plead guilty. In fact, immediately after defendant pleaded guilty as charged in the complaint, the trial court suspended sentence and placed defendant on probation. The court, however, did not give any indication on the record that defendant would be subject to a maximum sentence lower than the statutory maximum if he violated probation. This omission is significant, particularly in light of defendant's agreement to be sentenced by a different judge than the one who actually took the plea. It is also not reasonable to believe that in addition to giving defendant the benefit of being placed on probation, the trial court would also have promised defendant a lower maximum sentence if he violated probation. Furthermore, defendant did not testify at the sentencing hearing that the Orange County Superior Court had promised him that he would only be sentenced to a maximum term of three years eight months if he violated probation or that he pleaded guilty in reliance on this promise.
Moreover, the trial court's interpretation of defendant's plea and admission forms was the most reasonable interpretation. Paragraph 2 of the plea form clearly indicates "Maximum Total Punishment" as seven years eight months (the maximum statutory sentence for the two felony counts and the four prior prison terms). In addition, when viewed together, the plea and admission forms set forth a maximum sentence of seven years eight months. As noted by the People, if the three years eight months indicated in paragraph 24(e) of the plea form were the total maximum sentence defendant could receive, then the admission form, in which defendant acknowledged that his maximum sentence could be increased by four years, would be superfluous. Defendant's interpretation of the plea agreement is simply not reasonable. The record does not support the conclusion that the court or the People had induced defendant to plead guilty by promising him a maximum term of three years eight months if he violated probation.
Based on the foregoing, we reject defendant's argument that the trial court incorrectly construed the plea agreement to provide for a maximum sentence of seven years eight months if he violated probation. For the same reasons, we also reject defendant's contention that his sentence violated his right to due process because the trial court imposed a "punishment that significantly exceeds that which the parties have agreed upon." There was no agreement since this was an open plea to the court.
B. Sentence on Prior Prison Terms
In his supplemental brief, defendant argues in light of Buycks, supra, 5 Cal.5th 857, this court should reduce his sentence by two years because two of his one-year prior prison term enhancements had been reduced to misdemeanors under Proposition 47. In the alternative, defendant requests the matter be remanded for reentry of his plea and/or for resentencing due to "other irregularities" in his plea and sentence. The People assert that defendant can seek resentencing by filing a petition for writ of habeas corpus in the trial court. Alternatively, the People contend that this court could construe defendant's supplemental brief as a petition for writ of habeas corpus and grant relief.
We find no purpose in remanding the matter to the superior court or having defendant to file a petition for writ of habeas corpus in the trial court. For the sake of judicial economy, we strike the two prior prison term enhancements that had been reduced to misdemeanors.
The trial court imposed the maximum possible prison sentence under the terms of the plea agreement then corrected that maximum possible sentence by reducing the attempted burglary of a vehicle conviction to four months based on a legal error. There is no reason to believe that, if we remanded the case for resentencing, the trial court would change the sentence in any way other than to strike the two enhancements. Accordingly, there is no need to remand for resentencing; such a remand would be an idle act. (Cf. Buycks, supra, 5 Cal.5th at p. 896, fn. 15.) --------
In Buycks, supra, 5 Cal.5th 857, our Supreme Court held "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 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors." (Buycks, at p. 871.)
The Supreme Court "consider[ed] the terms of and intent behind the pertinent provisions of Proposition 47, including the significance of Proposition 47's mandate that the felonies reduced under its provisions 'shall be considered a misdemeanor for all purposes.' (§ 1170.18, subd. (k).) From this, [the court] conclude[d] that the 'misdemeanor for all purposes' provision operates prospectively—by having ameliorative effect on any new collateral consequence imposed after a successful Proposition 47 resentencing. However, because Proposition 47 is a measure designed to ameliorate punishment, the 'misdemeanor for all purposes' language also requires felony-based section 667.5 and 12022.1 enhancements to be retroactively stricken, but only with regard to judgments that were not final at the time the initiative took effect." (Buycks, supra, 5 Cal.5th at p. 876, fns. omitted.)
The judgment in this case was not final when Proposition 47 took effect on November 5, 2014, and when defendant successfully petitioned the Orange County Superior Court on June 12, 2019, to reduce two of his prior drug possession convictions to misdemeanors under Proposition 47. (See People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed]; People v. Vieira (2005) 35 Cal.4th 264, 305-306 [same].) Accordingly, defendant is entitled to have the two section 667.5 enhancements based on the convictions that were reduced to misdemeanors stricken. (Buycks, supra, 5 Cal.5th at p. 876.)
IV
DISPOSITION
The judgment is modified by striking defendant's two section 667.5, subdivision (b) enhancements based on superior court case Nos. 07HF1295 and 10SF0354, and, as modified, the judgment is affirmed. The trial court is directed to forward an amended abstract of judgment reflecting the above modification to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.