Opinion
G050926
08-15-2016
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY QUIRINO, Defendant and Appellant.
Paul J. Katz, 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, Peter Quon, Jr., and Lise S. Jacobson , 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF1858) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed in part, reversed in part and remanded with directions. Paul J. Katz, 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, Peter Quon, Jr., and Lise S. Jacobson , Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Richard Quirino appeals following his convictions on charges of second degree robbery (Penal Code §§ 211, 212.5, subd. (c)), possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a)), and two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Quirino does not challenge those convictions, which stem from two separate incidents. Instead he challenges the sufficiency of the evidence to support findings that he committed the firearm possession in the first incident, and the methamphetamine possession in the second incident, for the benefit of a criminal street gang. He also contends his sentence enhancement for a prior prison term under section 667.5 must be set aside because the earlier felony for which the prison term was served has since been reduced to a misdemeanor pursuant to Proposition 47, an initiative passed by the California voters in November 2014.
All further statutory references are to the Penal Code unless otherwise stated.
Finally, Quirino contends the court erred by imposing a $50 laboratory analysis fee pursuant to Health and Safety Code section 11372.5. He points out the statute applies only to specified drug offenses, not including the one he was convicted of. The Attorney General concedes the imposition of the laboratory fee was erroneous, but disputes Quirino's other contentions.
We agree with Quirino that the evidence is insufficient to support his gang enhancements. There was nothing in the circumstances of either the gun possession Quirino committed in the first incident, or his possession of methamphetamine in the second, suggesting he intended to commit them for the benefit of his gang. The gang expert opined, in effect, that the commission of any robberies, thefts, weapons offenses or drug crimes by a member of a criminal street gang, in or near the gang's territory, would necessarily benefit the gang, and thus suggest an intent to do so. That assertion is too sweeping, and too generic, to constitute sufficient evidence of Quirino's specific intent in committing these particular crimes.
We also agree with Quirino's assertion that the reduction of his earlier felony to a misdemeanor pursuant to Proposition 47 means that offense is no longer eligible to support imposition of a prior prison enhancement under section 667.5, subdivision (b).
We consequently reverse the judgment in part, and remand the case to the trial court with directions to strike the laboratory fee and resentence Quirino in accordance with this opinion. In all other respects, the judgment is affirmed.
FACTS
The first incident occurred in the afternoon of November 11, 2011. The victim was riding a bicycle along the Santa Ana Riverbed Trail when he passed Quirino and a younger male, also riding bicycles. Quirino, who was wearing a red baseball cap, then rode up next to the victim and forced him to stop by grabbing his backpack. Quirino told the victim "now you're fucked up," and lifted his shirt to show a wooden-handled revolver tucked into his waistband. He then demanded the victim "give me all your fucking money," and took the victim's wallet from his back pocket. The victim gave Quirino his back pack as well, and noted Quirino's breath smelled of alcohol.
Quirino told the victim he needed the money for his sick mother, warned him not to call the police, and rode away. The younger male who had been with Quirino when the victim first rode by, stayed about 80 feet away from Quirino and the victim during the robbery. After Quirino and his friend departed, the victim called the police.
The second incident occurred 12 days later, on November 23, 2011. Police officers were patrolling an area claimed by a criminal street gang — about one-half mile from the river trail where the earlier robbery had taken place. When the officers spotted Quirino, and told him to stop, he ran away. The officers chased him and then shot him with a taser as he attempted to scale a chain link fence. After the officers subdued Quirino, they searched him and found a loaded .22 caliber revolver, a baggie containing five grams of methamphetamine, and a syringe. The officers also seized a light blue bandana that Quirino had been wearing around his neck, as well as a gang registration notification with his name on it.
Based on Quirino's resemblance to the robber described by the victim in the first incident, plus the proximity of the two incidents, Quirino was identified as a possible suspect in the first incident. He was later identified by the victim as the robber.
Quirino was charged with one count of second degree robbery and one count of being a felon in possession of a firearm in connection with the first incident, and one count of possessing methamphetamine while armed and one count of being a felon in possession of a firearm in connection with the second incident.
At trial, the prosecution's gang expert testified about Hispanic gangs generally, and about gangs in the City of Santa Ana in particular. He stated that Hispanic gangs are "turf oriented" and tend to commit their crimes within their own territory. Gang members gain "respect" by sowing fear in the community, and committing serious or violent crimes enhances an individual gang member's status within the gang, as well as enhancing the gang's status within the gang community. They are expected to "put[] in work" for the gang, meaning they will commit crimes such as "narcotic sales, robberies and other types of theft to support the gang . . . ." Hispanic gang members like to brag about their crimes to fellow gang members and usually commit their crimes with other gang members as witnesses.
The expert described Quirino's alleged gang as a traditional Hispanic street gang with a territory claimed by the gang on the perimeter of the Santa Ana river trail. He characterized the trail as a "robbery zone" shared between Quirino's alleged gang and a rival gang. He explained that Quirino's alleged gang in particular is known for committing assaults with firearms, robberies and thefts, narcotics trafficking, and possessing firearms and other weapons. Its gang color is light blue, which members sometimes display by carrying a light blue bandana.
DISCUSSION
Sufficiency of the Gang Evidence
Quirino contends the evidence was insufficient to sustain the findings that his crime of possessing a gun during the first incident, and his crime of possessing methamphetamine during the second incident, were committed for the benefit of a criminal street gang and with the intent to promote the gang's criminal conduct. (§ 186.22, subd. (b) [providing for a sentence enhancement when a defendant "is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members"].)
"We review claims of insufficient evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to determine if substantial evidence exists for a reasonable trier of fact to find the [allegations] true beyond a reasonable doubt." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) By definition, however, evidence is not substantial if based on mere speculation, guesswork or conjecture. (Reese v. Smith (1937) 9 Cal.2d 324, 328.)
Quirino's gang enhancements were based on the expert testimony of the prosecutor's gang expert. Such testimony is appropriate because "'California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness [citation] and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion.'" (People v. Vang (2011) 52 Cal.4th 1038, 1044.) However, "[w]here an expert bases his conclusion upon . . . factors which are speculative, remote or conjectural, . . . [Citations.] . . . the expert's opinion cannot rise to the dignity of substantial evidence." (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
As explained in People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa), "[a] gang expert's testimony alone is insufficient to find an offense gang related. [Citation.] '[T]he record must provide some evidentiary support, other than merely the defendant's record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.'" (Id. at p. 657, first italics added.)
The First Incident
In the first incident, the gang enhancement was tied to the count alleging Quirino's possession of the gun used in the robbery, rather than the robbery itself. Although Quirino was seen with a companion on the bike path, he acted alone in the robbery. He displayed no gang colors, did not invoke the gang's name, and only displayed the gun he possessed to the victim, by raising his shirt to reveal it tucked in the waistband of his pants. He told the victim he needed money because his mother was sick.
The expert testified, in somewhat conclusory fashion, that a gang member's gun possession would benefit the gang because the gun could be used for offensive purposes, such as in a robbery, and could also be used for defensive purposes like protection from rival gang members. However, such generic opinion evidence, standing alone, does not rise to the level of substantial evidence. As stated in Ochoa, supra, 179 Cal.App.4th 650, a gang expert's testimony "that the carjacking could benefit defendant's gang in a number of ways" was insufficient in the absence of "specific evidentiary support for drawing such inferences" in connection the particular incident. (Id. at p. 662). Thus, in Ochoa, "there was no indication that defendant had used the vehicle to transport other gang members. There was no testimony that defendant used the vehicle to transport drugs or manifested any intention to do so. While the [expert] testified that defendant may have been motivated to commit the instant crimes in order to exact retaliation against another individual, he failed to provide any evidentiary support for this conclusion. There was never any suggestion that the alleged victim of the brandishing charge was a rival gang member or had committed any offenses against defendant or his gang. The sergeant's testimony, as to how defendant's crimes would benefit [the criminal street gang], was based solely on speculation, not evidence." (Id. at pp. 662-663, fn. omitted.)
Here, although there was evidence Quirino used the gun offensively to commit a robbery, there was no evidence that robbery was carried out for the benefit of a gang. The expert testified the robbery would benefit a criminal street gang because "the proceeds go back to the gang [and if] they happen to be with anyone else, then it's witnessed." But there again, our record contains no evidence that the proceeds of this robbery actually did go back to any criminal street gang. The only evidence directly bearing on the point was Quirino's own statement — quoted by the victim — that he needed the money because his mother was sick. That suggests a personal, rather than gang-related, motive for the crime. Of course, the jury was free to disbelieve that statement, but that disbelief would not constitute affirmative evidence the crime was committed for the benefit of the gang. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205 [disbelief of testimony has "the effect of removing that testimony from the evidentiary mix. Without more, the disregard or disbelief of the testimony of a witness is not affirmative evidence of a contrary conclusion"].)
And as to the assertion Quirino's crime benefitted the gang because it was "witnessed," the gang expert explained that Quirino's gun possession in this particular incident would enhance his reputation within the gang, and enhance the gang's reputation, because both his companion and the victim would be expected to talk about the robbery. However, as Quirino points out, there is no evidence that his companion was a gang member, and there is no evidence the companion would have even seen the gun when Quirino lifted his shirt to display it to the victim, given that the companion was standing more than 80 feet behind Quirino and his victim. In fact, the victim stated that Quirino's companion was standing so far away "I couldn't see him very well."
As for the victim himself, he did see a gun, but there was no evidence he associated either the gun or Quirino with a gang. And the mere fact the victim may have suspected Quirino was a member of some gang is not sufficient evidence to demonstrate his commission of a crime benefitted his gang. (Ochoa, supra, 179 Cal.App.4th at p. 663 ["While it is true that the carjacking victim testified that he believed 'a little' that defendant may have been a gang member, it is difficult to imagine how that would benefit [a criminal street gang] because the victim did not know to which gang, if any, defendant may have belonged"].)
In this case then, the only evidence that Quirino was acting for the benefit of his gang when he possessed the gun in the first incident was his membership in the gang, and the fact he possessed a gun. That is insufficient. "The gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes." (Ochoa, supra, 179 Cal.App.4th at p. 663.)
The Attorney General relies on this court's opinion in People v. Garcia (2007) 153 Cal.App.4th 1499, which she implies demonstrates that an active gang member that holds guns in high importance can be found guilty of possessing a gun for the benefit of a gang based on those facts alone, despite the fact the gang member claimed to have the gun for self-protection. (Id. at p. 1512.) But the gang expert in Garcia based his opinion in part on the fact Garcia's gun was given to him by other gang members, which "shows that they know it's for the — it's going to be used against rival gang members, or for the protection of the [gang]." (Id. at p. 1506.) In this case, by contrast, we have no information about the source of Quirino's gun, and the expert did not mention it.
Because there was insufficient evidence to support the gang expert's conclusion that Quirino's possession of a gun in the first incident was done for the benefit of a gang, the true finding on that gang enhancement cannot be sustained.
The Second Incident
In the second incident, the jury found it was Quirino's possession of the methamphetamine while armed that was committed with the intent to benefit his gang. The incident took place late at night, when police officers were patrolling gang territory. Quirino was alone when the officers spotted him, riding a bike in an alley, and when the officers told him to stop, he fled on foot. When apprehended, Quirino was wearing a baby blue bandana around his neck, and he was carrying 5 grams of methamphetamine, a syringe, and a loaded gun.
The gang expert testified that a gang member's possession of a gun while riding around the neighborhood late at night would benefit the gang because such behavior would be considered "posting up or patrolling the neighborhood to protect it from rivals that may enter while they are conducting business." However, as Quirino points out, what is missing from this scenario is any evidence that other gang members were "conducting business" in the area at that time. Absent such evidence, there is no basis to infer Quirino's conduct amounted to "posting up."
The expert also stated the gang would benefit from Quirino's crime because "they can gain the resources from the narcotic sales. He is protecting the neighborhood and is actually spreading fear within the neighborhood wearing the bandana, riding around at night, and people know he is out there, and they are aware." But again, there is no evidence in the record of any narcotic sales — by Quirino or anyone else — or that anything else was going on that Quirino might have needed to provide protection either for or against.
And while it may be true that Quirino's wearing of the bandana could spread fear, that sartorial act — as contrasted with the gun and methamphetamine possession — is not a crime being committed. The actual crimes Quirino was committing were possessory in nature, and could not be seen by anyone. There was no evidence he had displayed either the methamphetamine or the gun to any person in the second incident.
Consequently, while the gang expert demonstrated there were gang-related reasons why a gang member might engage in the sort of conduct Quirino was engaged in during the second incident, there was no evidence that any of those gang-related scenarios happened. As explained in People v. Ramon (2009) 175 Cal.App.4th 843, in the absence of such evidence, there is nothing to support the inference suggested by the gang expert. In Ramon, the defendant was stopped by police while driving a stolen truck in his gang's territory, with another gang member in the passenger seat. A gang expert testified at trial that car theft was one of the gang's primary activities. (Id. at p. 847.) He opined that by driving a stolen vehicle within his gang's territory, the defendant could use it to conduct crimes and then be free to abandon it without it being tied to him. (Id. at pp. 847-848.) Moreover, the vehicle could be used to spread fear and intimidation within the gang's territory. (Id. at p. 848.) However, the defendant's gang enhancements were vacated on appeal because there was no evidence in the record demonstrating why the defendant and his companion were driving around in the stolen truck, and the mere possibility they were doing so for gang-related reasons was not sufficient to support a verdict: "While it is possible the two were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence." (Id. at p. 851.)
Ultimately, the gang expert in this case opined that Quirino must have been acting for the benefit of a gang in the second incident because the notion of a gang member riding around the neighborhood with a gun and methamphetamine for his own use is not consistent with gang culture. He stated that the gang would not allow a gang member "to sell drugs or roam around that neighborhood without it benefitting [the gang]." But here again, there was no evidence Quirino was engaging in narcotics sales during the incident in question. To the contrary, he was alone and riding a bicycle. Unlike the defendant in People v. Ferraez (2002) 112 Cal.App.4th 925, in which the defendant admitted he had been attempting to sell rock cocaine found in his possession, and had been given permission to do so at that particular location by a gang aligned with his own. (Id. at p. 928.) As to the expert's broader point, it amounts to a blanket assertion that the gang controls every aspect of a gang member's conduct within the gang's territory — and thus that any conduct engaged in by a gang member can be presumed to have been carried out for the benefit of the gang. But because "[t]he gang enhancement cannot be sustained based solely on defendant's status as a member of the gang and his subsequent commission of crimes" (Ochoa, supra, 179 Cal.App.4th at p. 663), such a contention does not meet the definition of substantial evidence.
Based on the foregoing, we conclude the evidence was also insufficient to support the jury's finding that Quirino's possession of methamphetamine while armed was done for the benefit of a criminal street gang. Consequently, the true finding on that gang enhancement cannot stand.
Propriety of the Enhancement Based on Prior Prison Term
Section 667.5, subdivision (b) provides for a one-year sentence enhancement "for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony. . . ."
Section 1170, subdivision (h)(1) allows certain felonies to be punished by "a term of imprisonment in a county jail . . . ."
Quirino's sentence in this case included one such enhancement, stemming from a prison term he served for a felony burglary. However, in November 2014, after Quirino was sentenced, Proposition 47 went into effect and Quirino filed a petition under section 1170.18 to have his felony burglary conviction reduced to a misdemeanor. Section 1170.18, subdivision (k) - enacted as part of Proposition 47 - states that "[a]ny 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. . . ."
In May 2015, Quirino's petition was granted. We have taken judicial notice of the order reducing that felony to a misdemeanor. Quirino now asks us to strike the prior prison enhancement (which was properly imposed as of the day he was sentenced) on the ground the underlying conviction has since been reduced to a non-qualifying misdemeanor, and contends it is appropriate to do so because his sentence is not yet final.
The recent case of People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah) involves a similar direct attack on an enhancement, and holds that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). We agree with its analysis, and conclude it supports the same result here.
As Abdallah, supra, 246 Cal.App4th at page 742 pointed out, our Supreme Court has set forth the elements required to qualify for the prison prior: "Imposition of a sentence enhancement under Penal Code section 667.5[, subdivision (b)] 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." (People v Tenner (1993) 6 Cal.4th 559, 563.) And as Abdullah concluded, the first of those required elements is eliminated when the defendant's prior conviction is redesignated a misdemeanor. (Abdallah, at p. 746.)
In reaching that conclusion, the Abdallah court relied largely on People v. Park (2013) 56 Cal.4th 782 (Park), in which the Supreme Court considered whether a court order reducing a wobbler to a misdemeanor precluded its later use as the basis for a felony sentence enhancement. The high court held that it did, explaining "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." (Id. at p. 787.)
In People v. Flores (1979) 92 Cal.App.3d 461 (Flores), the appellate court reached a similar conclusion in a situation where it was legislation, rather than a court order, that redesignated the defendant's earlier crime as a misdemeanor. The Flores court held it was improper to rely on a defendant's prior felony conviction for possession of marijuana as the basis for a felony enhancement, once our Legislature had reduced the crime of possession to a misdemeanor. (Id. at pp. 470-471) In reaching that conclusion, the Flores court relied on In re Estrada (1965) 63 Cal.2d 740 (Estrada), for the proposition that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) And while the marijuana legislation in Flores did not expressly provide for the reduction of prior felony convictions to misdemeanor status, the court concluded that the legislation's clear language (including a requirement that all records pertaining to such convictions be destroyed) demonstrated it "intended to prohibit the use of the specified records for the purpose of imposing any collateral sanctions." (Flores, supra, 92 Cal.App.3d at p. 472.)
Thus, pursuant to Flores and Park, when a felony is reduced to a misdemeanor, whether by legislation or court order, it cannot thereafter be used to support a felony sentence enhancement.
But the Attorney General counters that the reduction of an underlying felony to misdemeanor should have no effect on its use as the basis of an enhancement under section 667.5, subdivision (b), because it is the fact of "[h]aving served a prior prison term" rather than the felony status of the prior crime, that "is the qualifying criterion for a sentence enhancement under . . . section 667.5, subdivision (b)" (citing People v. Gokey (1998) 62 Cal.App.4th 932, 936 ["Sentence enhancements for prior prison terms are based on the defendant's status as a recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise to the current conviction"]). In other words, the enhancement is directed not at those defendants who have committed prior felonies, but rather at those who were insufficiently deterred by having served a prior term in prison.
The point sounds persuasive in the abstract, but it is inconsistent with the Supreme Court's clear statement in People v. Prather (1990) 50 Cal.3d 428, 440, that "667.5[, subdivision (b)] is aimed primarily at the underlying felony conviction, and only secondarily, as an indicium of the felony's seriousness, at the prior prison term." (Italics added.) Here, the Attorney General fails to acknowledge Prather, and instead cites In re Preston (2009) 176 Cal.App.4th 1109, 1115 (Preston), for the opposite point. And Preston does quote a more recent Supreme Court opinion — People v. Jones (1993) 5 Cal.4th 1142 — for the proposition that "[t]he purpose of the section 667.5 [, subdivision (b)] enhancement is 'to punish individuals' who have shown that they are '"hardened criminal[s] who [are] undeterred by the fear of prison."'" (In re Preston, at p. 1115.) However, Jones does not say what Preston claims. Instead, the quoted language in Jones is actually taken from the Supreme Court's discussion of the underlying court of appeal opinion — reflecting a position the Supreme Court then deems "unpersuasive" because it is inconsistent with Prather. (Jones, at p. 1148.) Consequently, we must adhere to Prather for the proposition that "667.5(b) is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term." (Prather, at p. 440, Italics added.)
And in light of that proposition, we have no trouble concluding, like the court in Abdallah, that the reduction of an earlier felony conviction to a misdemeanor would preclude the use of that conviction to support such an enhancement.
This leaves us with only an issue of timing. In Abdullah, the trial court had sentenced the defendant to the prison prior just after it had reduced the relevant underlying felony to a misdemeanor. (Abdallah, supra, 246 Cal.App.4th at p. 740.) Thus, the enhancement was erroneous at the moment it was imposed. In this case, by contrast, at the time Quirino was sentenced, his prior felony had not yet been reduced to a misdemeanor. Thus, unlike the trial court in Abdullah, our trial court did not err at the time of sentencing when it imposed the enhancement.
Relying on Estrada, supra, 63 Cal.2d 740, Quirino argues this is a distinction without a difference because 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 would seem to fall within this rule.
The Attorney General does not directly address Estrada, arguing instead that other cases demonstrate that Proposition 47 "does not apply retroactively." But the cases cited are distinguishable. For example, in People v. Rivera (2015) 233 Cal.App.4th 1085, the Court of Appeal considered whether the reduction of the defendant's felony conviction to a misdemeanor under Proposition 47, before the defendant's appeal from the conviction was heard, would affect the appellate court's jurisdiction to hear the appeal. (Rivera, at p. 1100.) The court concluded it did not because under California Rules of Court, rule 8.304, appellate jurisdiction is determined as of the time a defendant is charged. A "'felony case' means any criminal action in which a felony is charged, regardless of the outcome. A felony is 'charged' when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under . . . section 859a." (Cal. Rules of Court, rule 8.304(a)(2).) And at the time the defendant in Rivera was charged, his crime had been a felony. Effectively, the rule in Rivera is that the subsequent reduction of the defendant's felony conviction to a misdemeanor could not retroactively change the circumstances existing at the time he was charged. (Rivera, at p. 1101.)
The Supreme Court granted review on the other case discussed by the Attorney General, People v. Perez (2015) 239 Cal.App.4th 24, review granted November 18, 2015, S229046. Consequently we do not discuss it. --------
In this case, by contrast, it appears the propriety of Quirino's sentence enhancement must be assessed based on current facts, rather than on a set of facts that existed at some fixed point in the past. For the court to recognize the current status of a prior conviction is not the same thing as giving it retroactive effect. Here, we have already concluded that Quirino's gang enhancements must be reversed and we are thus remanding the case to the trial court for resentencing. On remand, the court must resentence Quirino in accordance with the facts currently in existence, including the fact that his prior felony burglary conviction has been reduced to a misdemeanor. 3. Laboratory Fee
Quirino's final contention is that the court erred by ordering him to pay a laboratory analysis fee pursuant to Health and Safety Code section 11372.5. That statute states, in pertinent part: "(a) Every person who is convicted of a violation of Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390, 11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the Business and Professions Code shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense."
As Quirino points out, he was not convicted of any of the offenses specified in the statute. Instead, he was convicted of violating section 11370.1 of the Health and Safety Code. He thus contends the laboratory analysis fee was not warranted. The Attorney General concedes the point, and agrees the laboratory fee should be stricken. We agree as well.
DISPOSITION
We reverse the judgment in part, and remand the case to the trial court with directions to strike the gang enhancements to the firearm possession and methamphetamine possession counts, to strike the laboratory fee imposed pursuant to Health and Safety Code section 11372.5, and to resentence Quirino in accordance with this opinion. In all other respects, we affirm the judgment.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.