Opinion
F081299
04-22-2021
THE PEOPLE, Plaintiff and Respondent, v. MARISA ELENA LOPEZ MIRANDA, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CRL012576, 18CR-06043)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Paul C. Lo, Judge. Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
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Charged with eight offenses, defendant Marisa Elena Lopez Miranda pled no contest pursuant to a plea agreement to three counts, including one felony, and admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)). One of the prior prison term allegations was based on a 2006 felony case involving drug offenses and possession of a bad check, and the second was based on a 2009 felony conviction for forgery. Her plea was conditioned on her receiving a five-year prison sentence, which was comprised in part of two one-year enhancements for each of the prior prison terms. The People in return dismissed the remaining counts. The court imposed the five-year sentence, but suspended the execution of the sentence and placed Miranda on probation.
Undesignated statutory references are to the Penal Code.
Later, the trial court granted Miranda's petition under Proposition 47 to have her 2009 forgery conviction reduced to a misdemeanor. After numerous probation violations, the court terminated probation, lifted the suspension of execution of her sentence, and ordered her to serve a six-year prison sentence comprised of the initial five-year sentence plus one year for her conviction in a different case. Miranda filed a notice of appeal.
Miranda's opening brief raised four issues. However, the parties have filed a written stipulation jointly asserting that Miranda's two one-year prior prison term enhancements must be stricken because her 2009 conviction was reduced to a misdemeanor and her 2006 felony consequently "washed out." They have further stipulated the judgment be modified accordingly and a remittitur be issued immediately.
After reviewing the parties' stipulation, we requested supplemental briefing regarding the issues currently under review in the Supreme Court in People v. Hernandez (2020) 55 Cal.App.5th 942, review granted January 27, 2021, S265739 (Hernandez), including if a defendant's prior prison term enhancements are stricken, does the remainder of the sentence agreed to under a plea agreement remain intact or must the case be remanded to allow the People to withdraw from the plea agreement and to obtain the trial court's approval? The parties agree the holding in Hernandez, which was decided by this court, has no bearing on this case.
We conclude Miranda's two one-year prior prison term enhancements must be stricken and the remainder of the plea agreement must remain intact. We also find good cause for issuing an immediate remittitur.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2014, Miranda was charged with unlawful driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a); count 1), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2), driving under the influence of any drug (Veh. Code, § 23152, subd. (e); count 3), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4), possession of burglary tools (§ 466; count 5), possession of a smoking device (Health & Saf. Code, § 11364.1, subd. (a)(1); count 6), giving false information to a police officer (§ 148.9, subd. (a); count 7), and driving without a license (Veh. Code, § 12500, subd. (a); count 8).
It was further alleged as to counts one and two that Miranda had served two prior prison terms within the meaning of section 667.5, subdivision (b). The first prior prison term was for 2006 convictions for possession of a controlled substance in prison (§ 4573.6, subd. (a)), possession of a bad check (§ 475, subd. (a)), and possession of a controlled substance (Health and Saf. Code, § 11377, subd. (a)). The second prior prison term was for a 2009 conviction for forgery (§ 470, subd. (a)).
On December 19, 2014, Miranda pled no contest to counts one, two, and four and admitted the two prior prison term allegations. Count three was included in the oral pronouncement of the plea, but was not included on the plea form, and the remaining counts were dismissed. Pursuant to the plea agreement, Miranda was sentenced to three years in prison on count one plus two one-year consecutive terms for each of the prior prison term enhancements, for a total of five years. The total five-year term was imposed, but execution of the sentenced was suspended, and Miranda was placed on probation.
On August 22, 2016, while Miranda was still on probation, she petitioned the Tulare County Superior Court under section 1170.18—which was enacted by the passage of Proposition 47—to reduce her 2009 felony forgery conviction to a misdemeanor. The court granted the petition and the conviction was reduced to misdemeanor.
On September 26, 2018, Miranda admitted a violation of probation in the present case. Her probation was revoked and reinstated with new conditions. On January 29, 2019, her probation was revoked and again reinstated with new terms.
On June 11, 2020, Miranda admitted a further violation of probation, and the court lifted the suspension on the execution of her sentence. The previously imposed five-year sentence was executed, and an additional year was imposed in a different case, for a total term of six years.
The trial court originally awarded Miranda with credits for 393 days in case number CRL012576 and 212 days in case number 18CR-06043. An additional 620 days' credits were awarded on January 19, 2021 when an error pertaining to the calculation of credits was corrected.
Miranda initially raised four issues on appeal, but has stipulated to waive all issues, including but not limited to the right to seek direct appellate review to any higher court, except for one: whether her two one-year prior prison term enhancements should be stricken pursuant to People v. Buycks (2018) 5 Cal.5th 857 (Buycks). The parties agree, and we concur, both one-year prison term enhancements must be stricken because Miranda's 2009 conviction was reduced to a misdemeanor and the 2006 conviction "washed out."
We also conclude, pursuant to the California Supreme Court's holding in Harris v. Superior Court (2016) 1 Cal.5th 984 (Harris), that the balance of Miranda's plea agreement must remain intact. Our opinion in Hernandez, supra, 55 Cal.App.5th 942, is not applicable here.
DISCUSSION
I. The two one-year prior prison term enhancements must be stricken
The parties are correct Miranda's two one-year prior prison term enhancements imposed under section 667.5, subdivision (b), must be stricken.
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).)
Proposition 47 also created a new resentencing provision, section 1170.18, that provides procedural mechanisms for (1) resentencing of inmates currently serving sentences for Proposition 47-eligible felonies that are now misdemeanors (§ 1170.18, subds. (a), (b)); and (2) designation of Proposition 47-eligible felonies as misdemeanors for persons who have already completed their sentences (§ 1170.18, subds. (f), (g) ). (See Buycks, supra, 5 Cal.5th at p. 876; Rivera, supra, 233 Cal.App.4th at p. 1092.) Once a felony is reduced to a misdemeanor under Proposition 47, it "shall be considered a misdemeanor for all purposes ...." (§ 1170.18, subd. (k).) In Buycks, the California Supreme Court concluded that where a nonfinal judgment contains a one-year prior prison term enhancement (§ 667.5, subd. (b)), "Proposition 47 and the Estrada rule authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure." (Buycks, at p. 888.) Accordingly, Miranda's prior prison term enhancement that is attached to her 2009 forgery conviction must be stricken. Consequently, the prior prison term enhancement that is attached to her 2006 conviction "washes out."
In re Estrada (1965) 63 Cal.2d 740.
A. Washing out
A section 667.5, subdivision (b), sentence 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.' " (In re Preston (2009) 176 Cal.App.4th 1109, 1115 (Preston); see People v. Tenner (1993) 6 Cal.4th 559, 563.)
Courts sometimes refer to the fourth requirement, which exempts from the enhancement defendants who have not reoffended for five years, as " 'washing out.' " (Preston, supra, 176 Cal.App.4th at p. 1115; see People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).) " 'The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.' " (Preston, at p. 1116; see People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) "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." (Fielder, at p. 1229; § 667.5, subd. (b); see 3 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Punishment, § 400, p. 618.) "Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply." (Fielder, at p. 1229.)
Miranda's 2006 convictions and subsequent prison term implicated the one-year enhancement under section 667.5, subdivision (b). However, after her 2009 felony was reduced to a misdemeanor, the fourth requirement of section 667.5, subdivision (b), was no longer satisfied because her record no longer contained an offense resulting in a felony conviction within five years of her release on parole for the 2006 felony conviction. As such, her 2006 conviction "washed out" and could not support a one-year prior prison term enhancement under section 667.5, subdivision (b).
Both of Miranda's one-year prior prison term enhancements must be stricken.
II. The remainder of the plea agreement must remain intact
Having reviewed the parties' supplemental briefing, we conclude the remainder of Miranda's plea agreement must be left intact; neither the People nor the trial court may withdraw their consent to the agreement. Harris, supra, 1 Cal.5th 984, squarely controls the outcome. In that case, the defendant pled guilty to felony grand theft and admitted a prior robbery conviction in exchange for a six-year prior prison term and dismissal of a robbery count. (Id. at pp. 987—988.) After sentencing, the defendant petitioned under Proposition 47 to have his theft conviction resentenced as a misdemeanor. (Id. at p. 988.) "The People argued the reduction violated the plea agreement and sought to withdraw from the bargain. [The Harris court] rejected the claim: 'Critical to this question is the intent behind Proposition 47. As we explained in Doe v. Harris [2013] 57 Cal.4th [64], 66, entering into a plea agreement does not insulate the parties "from changes in the law that the Legislature has intended to apply to them." (Italics added.) Here, of course, it was not the Legislature, but the electorate, that enacted Proposition 47. So the question is whether the electorate intended the change to apply to the parties to this plea agreement. We conclude it did." (Harris, at p. 991.) Noting that section 1170.18, subdivision (a) specifically applied to a person 'serving a sentence for a conviction, whether by trial or plea,' Harris reasoned that '[b]y expressly mentioning convictions by plea, Proposition 47 contemplated relief to all eligible defendants.' (Harris, at p. 991.) 'The resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the petitioner.' (Id. at p. 992.) In such cases, ' "the financial and social benefits of Proposition 47 would not be realized, and the voters' intent and expectations would be frustrated." ' " (People v. Stamps (2020) 9 Cal.5th 685, 702—703.)
The Harris court further explained: " '[T]he Legislature [or here, the electorate], for the public good and in furtherance of public policy, and subject to the limitations imposed by the federal and state Constitutions, has the authority to modify or invalidate the terms of an agreement.' [Citation.] The electorate exercised that authority in enacting Proposition 47. It adopted a public policy respecting the appropriate term of incarceration for persons convicted of certain crimes, including grand theft from the person. The policy applies retroactively to all persons who meet the qualifying criteria and are serving a prison sentence for one of those convictions, whether the conviction was by trial or plea. The electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement. The electorate did so when it enacted Proposition 47." (Harris, supra, 1 Cal.5th at p. 992.)
This court's recent opinion in Hernandez, supra, 55 Cal.App.5th 942, addressed a similar question, but in the context of Senate Bill No. 136's amendment to section 667.5, subdivision (b). (Hernandez, at p. 944.) Senate Bill No. 136 amended section 667.5, subdivision (b), effective January 1, 2020, to limit that subdivision's prior prison term enhancement to only prior prison terms for certain sexually violent offenses. (Hernandez, at p. 947.) The relevant question there was whether the People must be allowed to rescind their consent to a plea agreement after prior prison term enhancements are stricken under Senate Bill No. 136's amendments to section 667.5, subdivision (b). (Hernandez, at p. 944.) We held that the People are entitled to withdraw their assent to a plea agreement in that circumstance because the Legislature did not intend for Senate Bill No. 136's amendments to section 667.5, subdivision (b), to allow the trial court to unilaterally modify plea agreements once prior prison terms are stricken under that statute. (Hernandez, at pp. 957—959.) We noted the contrast in Harris's analysis of Proposition 47, namely that the Supreme Court recognized that the electorate's intent in enacting Proposition 47 was to bind the People to a unilateral change in a sentence. (Hernandez, at pp. 950—951.)
We follow the controlling authority of Harris, supra, 1 Cal.5th 984, and concur with the parties that the remainder of Miranda's plea agreement must remain intact.
DISPOSITION
The judgment is modified to reflect the striking of the two one-year prior prison term enhancements imposed under Penal Code section 667.5, subdivision (b). The trial court is directed to amend the abstract of judgment and forward certified copies to the appropriate entities. We further find good cause for granting the parties' stipulation for the immediate issuance of a remittitur. (Cal. Rules of Court, rule 8.272(c)(1).) The remittitur shall issue forthwith.