Opinion
G051849
01-10-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PHAM, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11WF2969) OPINION Appeal from an order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded with directions. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
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On September 18, 2019, the California Supreme Court ordered this matter transferred to this court with directions to vacate our decision in People v. Pham (Feb. 1, 2017, G051849) (nonpub. opn.), review granted May 10, 2017, S240522, and reconsider the cause in light of People v. Valenzuela (2019) 7 Cal.5th 415. Having so reconsidered the cause, we now reverse the order denying the motion of defendant Michael Pham to dismiss his conviction for street terrorism under Penal Code section 186.22, subdivision (a) (section 186.22(a)), and remand with directions to grant the motion and dismiss that conviction.
In January 2012, Pham pleaded guilty to, and was convicted of, one count (count 1) of felony drug possession (Health & Saf. Code, § 11377, subd. (a)) and one count (count 2) of misdemeanor street terrorism (§ 186.22(a)). After passage of Proposition 47 (the Safe Neighborhoods and Schools Act) in 2014, Pham brought a petition to reduce count 1 to a misdemeanor. The trial court granted the petition. Pham then moved to dismiss count 2 on the ground that reduction of count 1 to a misdemeanor meant there was no longer felonious conduct on which to base a conviction under section 186.22(a). The trial court denied the motion to dismiss count 2.
In our prior opinion, People v. Pham, supra, G051849, we affirmed. We followed People v. Valenzuela (2016) 5 Cal.App.5th 449, review granted March 1, 2017, S239122, in which the Court of Appeal held, on virtually identical facts, that reduction of a felony count to a misdemeanor pursuant to Proposition 47 did not affect a conviction for street terrorism because it required only that the defendant's conduct be felonious at the time of commission.
The California Supreme granted review of this case and deferred further action pending consideration and disposition of People v. Valenzuela, S240522. In People v. Valenzuela, supra, 7 Cal.5th at page 419, the Supreme Court reversed and concluded the reduction of a felony to a misdemeanor pursuant to Proposition 47 resentencing established the absence of felonious criminal conduct, an essential element of the crime of street terrorism. With this element absent, the trial court could not lawfully impose sentence on the street terrorism conviction and, therefore, the street terrorism conviction must be dismissed. (Ibid.)
After the Supreme Court ordered this matter transferred back to this court, we issued an order vacating our opinion filed on February 1, 2017 and inviting the parties to submit supplemental briefs addressing the effect of the People v. Valenzuela, supra, 7 Cal.5th 415 on the issues presented by the appeal.
In his supplemental brief, Pham argues that under People v. Valenzuela, supra, 7 Cal.5th 415 his street terrorism conviction must be dismissed. The Attorney General agrees. The Attorney General states in his supplemental brief: "Valenzuela, supra, 7 Cal.5th at p. 415, controls the outcome in this matter. [Citation.] Appellant's street terrorism conviction was based on his felony drug possession. That felony drug conviction was reduced to a misdemeanor pursuant to Proposition 47. Considering that the only behavior which satisfied the element of felonious conduct for street terrorism was no longer deemed a felony, all of the elements of the crime of street terrorism are no longer present. Accordingly, appellant's street terrorism conviction, pursuant to Valenzuela, must be dismissed."
We reach the same conclusion as did Pham and the Attorney General. An element of the crime of street terrorism is willful promotion, furtherance, or assistance "in any felonious criminal conduct" by gang members. (§ 186.22(a); see People v. Valenzuela, supra, 7 Cal.5th at pp. 422, 427.) Reducing Pham's felony drug possession conviction to a misdemeanor meant that element was absent. (People v. Valenzuela, supra, 7 Cal.5th at p. 427.) As a consequence, Pham's conviction for street terrorism must be dismissed. (Id. at p. 429.)
The order denying Pham's motion to dismiss count 2 is reversed. The matter is remanded with directions to grant the motion and dismiss the street terrorism conviction.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.