Opinion
F068313
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMMY RICHARD QUAIR, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 13CM1205)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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This case comes before us a second time. Sammy Richard Quair (defendant) was charged by first amended information with possession of a firearm after having been convicted of a felony (Pen. Code, § 29800, subd. (a)(1); count 1), possession of ammunition while prohibited from possessing a firearm (§ 30305, subd. (a)(1); count 2), misdemeanor exhibition of a firearm (§ 417, subd. (a)(2); count 3), and misdemeanor obstruction of a peace officer (§ 148, subd. (a)(1); counts 4 & 5). As to counts 1 and 2, it was alleged defendant had served three prior prison terms. (§ 667.5, subd. (b).) Defendant subsequently pled no contest to counts 1 through 3, guilty to counts 4 and 5, and admitted the prior prison term allegations, with no agreement as to sentence. On September 6, 2013, he was sentenced to a total of five years eight months in prison. The sentence on count 1 included a one-year consecutive term for each of the prior prison term enhancements. The enhancements were again imposed, but stayed, as to count 2.
Justice Gomes was part of the panel that originally heard this matter. He passed away on March 6, 2018. Justice Levy was assigned to this case in his stead.
Further statutory references are to the Penal Code unless otherwise stated.
On November 4, 2014, voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (Proposition 47 or the Act), which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) Insofar as is pertinent here, it also provided a mechanism by which a person who had completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, could apply to the trial court that entered the judgment of conviction and have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)
While defendant's appeal was pending, the convictions underlying two of the prior prison term enhancements imposed in the current case were designated as misdemeanors under the Act. The issue before us is whether the two 1-year terms imposed by the trial court pursuant to section 667.5, subdivision (b), for those prior convictions must now be stricken because, subsequent to defendant's September 6, 2013, sentencing, those prior convictions were reduced to misdemeanors pursuant to section 1170.18, subdivision (f).
Originally, we held that a previously imposed sentence enhanced by a section 667.5, subdivision (b) prior prison term is not altered by the granting of a Proposition 47 application reducing the felony that gave rise to that prior prison term to a misdemeanor. We agreed with defendant that the enhancements could be imposed only once, however. We modified the judgment accordingly and affirmed the judgment as so modified.
The California Supreme Court granted review, and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We have done so, and conclude defendant is entitled to have stricken two of the prior prison term enhancements for which sentence was imposed. He is also entitled to have the remaining enhancement imposed only once. We will affirm the convictions, but remand the matter for resentencing.
DISCUSSION
As the circumstances of the present offenses are irrelevant to the issues on appeal, we dispense with a statement of facts.
Section 1170.18, enacted as part of Proposition 47, provides in pertinent part:
"(f) A person who has completed his or her sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.
"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
With respect to each felony count, the first amended information alleged, and the trial court found, upon defendant's admission, that defendant had incurred the following enhancements under section 667.5, subdivision (b): (1) A conviction for violating section 666, suffered on September 13, 1995, in Kings County Superior Court case No. 95CM1869, and (2) A conviction for violating Health and Safety Code section 11377, subdivision (a), suffered on September 26, 2001, in Butte County Superior Court case No. CM015569. At the time defendant suffered those convictions, both offenses were felonies. (Health & Saf. Code, former § 11377, subd. (a); former § 666; see § 17, subd. (b).)
The third prior prison term enhancement alleged and admitted — a conviction for violating Vehicle Code section 10851, subdivision (a), suffered on March 11, 1991, in Kings County Superior Court case No. 10087 — is not at issue on this appeal.
Post-Proposition 47, Health and Safety Code section 11377, subdivision (a) is a misdemeanor, punishable "by imprisonment in a county jail for a period of not more than one year," unless the offender has certain specified prior convictions. According to the probation officer's report, defendant has no such prior convictions, and the Attorney General does not claim otherwise. Thus, had the Act been in effect at the time defendant committed the violation of Health and Safety Code section 11377, subdivision (a), he could only have been convicted of a misdemeanor.
The prior convictions enumerated in the statute are "for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code." (Health & Saf. Code, § 11377, subd. (a).)
Petty theft, in violation of section 490, is a misdemeanor, as it is "punishable by fine . . . or by imprisonment in the county jail not exceeding six months, or both." Section 666 was amended by Proposition 47 to provide, in pertinent part: "(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. [¶] (b) Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368." Insofar as the record on appeal shows, defendant is not a person described in subdivision (b) of section 666, and so could not have been charged with violating that statute had the Act been in effect at the time of his prior offense.
The Attorney General does not claim the prior conviction was improperly redesignated as a misdemeanor.
Subdivision (k) of section 1170.18, provides in pertinent part:
"Any felony conviction that is . . . designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."
The specified statutes contain restrictions and prohibitions on firearm possession for certain persons.
Defendant argues his convictions in Kings County Superior Court case No. 95CM1869 and Butte County Superior Court case No. CM015569 are now "misdemeanor[s] for all purposes" except certain firearm restrictions. (§ 1170.18, subd. (k).) He says these convictions "may not be used as prison prior enhancements because such enhancements are only for felony convictions. (Pen. Code, § 667.5, subd. (b).)" Recently, the California Supreme Court agreed.
In Buycks, supra, 5 Cal.5th 857, the California Supreme Court concluded that "a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect." (Id. at p. 879.) The court explained:
"[I]n describing the elements required for the imposition of a section 667.5, subdivision (b) enhancement, we have stated it '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.' [Citation.]
"With this understanding, the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant's previous felony conviction to a misdemeanor conviction because the defendant 'would have been guilty of a misdemeanor under' the measure had it 'been in effect at the time of the offense.' (§ 1170.18, subds. (a), (f).) Therefore, if the 'felony conviction that is recalled and resentenced . . . or designated as a misdemeanor' conviction becomes 'a misdemeanor for all purposes,' then it can no longer be said that the defendant 'was previously convicted of a felony' [citation], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, 'for all purposes,' it can only be said that the defendant was previously convicted of a misdemeanor.
"Consequently, 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, at pp. 889-890, fn. omitted.)
From the foregoing, it is apparent the two 1-year prior prison term enhancements based on Kings County Superior Court case No. 95CM1869 and Butte County Superior Court case No. CM015569, that were imposed as part of defendant's sentence in his current case, must be stricken. In Buycks, the California Supreme Court noted that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (Buycks, supra, 5 Cal.5th at p. 893.) The court found this rule applicable in the Proposition 47 context. (Buycks, supra, at pp. 893-894.) It further found, however, that where the sentencing court had imposed the maximum possible term, regardless of whether the enhancement at issue was stricken, there was "no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.)
Here, the trial court did not impose the maximum possible term. While this is not a situation in which, for example, the reduction from felony to misdemeanor affects the nonenhancement portion of the sentence (see, e.g., People v. Cortez (2016) 3 Cal.App.5th 308, 311-317; People v. McDowell (2016) 2 Cal.App.5th 978, 981-982), the striking of the two enhancements may affect the trial court's analysis of the appropriate sentence, although the original aggregate term cannot be increased on remand (see People v. Brunton (2018) 23 Cal.App.5th 1097, 1108). Accordingly, we find it appropriate to remand the matter for resentencing.
Additionally, as the Attorney General concedes, the trial court erred by attaching one set of the enhancements to count 1, and another set — based on the same prior prison terms — to count 2, even though it stayed the second set of enhancements.
A determinate term for a given offense may be lengthened by sentence enhancements. (People v. Ahmed (2011) 53 Cal.4th 156, 161.) " 'Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense.' " (People v. Williams (2004) 34 Cal.4th 397, 402, quoting People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell).) The first category focuses on a defendant's status as a repeat offender, while the second category focuses on the circumstances of the crime charged. (People v. Williams, supra, 34 Cal.4th at p. 402.) Enhancements for a prior prison term pursuant to section 667.5, subdivision (b) are status enhancements; they " 'have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.' " (People v. Williams, supra, at p. 402; accord, People v. Edwards (2011) 195 Cal.App.4th 1051, 1060 [prior prison term enhancements can be imposed only once, on aggregate sentence].) "As Tassell explained, section 1170.1 draws an important distinction between offense-based enhancements, which apply to every relevant count, and status-based enhancements, which apply only once." (People v. Sasser (2015) 61 Cal.4th 1, 15.)
Tassell was overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387, 401. --------
Upon remand, defendant's remaining prior prison term enhancement can be applied only once in arriving at the aggregate term.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court with directions to strike the two 1-year enhancements imposed, pursuant to Penal Code section 667.5, subdivision (b), for defendant's convictions in Kings County Superior Court case No. 95CM1869 and Butte County Superior Court case No. CM015569, and to resentence defendant consistent with this opinion.