Opinion
F071948
11-01-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY ROCHELEAU, JR., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Julie A. Hokans and Jessica C. Leal, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 1463797)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra Attorneys General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Smith, J.
-ooOoo-
When defendant Robert Anthony Rocheleau, Jr., appealed in 2015, he contended his prior felony conviction that had been reduced to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18) could not support a prior felony "strike" conviction allegation under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and thus we should vacate his doubled sentence. In 2016, we affirmed. The Supreme Court granted review and has now transferred the case back to us to vacate our decision and reconsider the case in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks), filed on July 30, 2018. In this opinion, we vacate our prior decision, strike the prior strike conviction allegation, modify the sentence, and affirm the judgment as modified.
All statutory references are to the Penal Code unless otherwise noted.
Defendant characterizes his doubled sentence as an enhancement. The Three Strikes law, however, does not utilize enhancements; it is an alternative sentencing scheme. (See People v. Cressy (1996) 47 Cal.App.4th 981, 991.)
PROCEDURAL SUMMARY
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
On April 2, 2015, defendant pled no contest to misuse of personal identification (§ 530.5, subd. (a)) and admitted having suffered a prior strike conviction in 2007 for grand theft (§ 487, subd. (c)(2)), within the meaning of the Three Strikes law.
After the plea, defendant filed a petition to reduce the prior grand theft felony conviction to a misdemeanor pursuant to Proposition 47. The trial court granted the petition, but it denied defendant's motion to dismiss the prior strike conviction allegation based on that conviction.
On June 11, 2015, the trial court sentenced defendant to 16 months in prison, doubled pursuant to the Three Strikes law, for a total of 32 months.
On July 9, 2015, defendant filed a notice of appeal.
On July 27, 2016, we filed our opinion in People v. Rocheleau (July 27, 2016, F071948) [nonpub. opn.]. We concluded that the reduction of a prior felony conviction to a misdemeanor pursuant to Proposition 47 did not affect the prior felony conviction's operation as a strike under the Three Strikes law. (Ibid.)
On October 12, 2016, the Supreme Court granted review (S236866) and, on September 26, 2018, transferred the case back to this court to reconsider in light of its recently published opinion in Buycks, which held that a felony conviction reduced to a misdemeanor under Proposition 47 cannot form the basis of a felony-based enhancement, such as a prior prison term enhancement under section 667.5, subdivision (b) (Buycks, supra, 5 Cal.5th at pp. 889-891).
On November 1, 2018, defendant filed a supplemental brief, arguing that the reasoning of Buycks applies not only to felony-based enhancements, but also to prior strike conviction allegations under the Three Strikes law. The People did not submit a brief.
On May 1, 2019, we directed the parties to submit supplemental briefing on the issue of mootness, and the parties have complied.
DISCUSSION
I. Mootness
As a general rule, appellate review is limited to actual controversies; a case that involves " 'only abstract or academic questions of law cannot be maintained.' " (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) " ' "[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." ' " (Ibid.) In other words, "[a]n appeal should be dismissed as moot when the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.)
Here, defendant was sentenced to 32 months on June 11, 2015, and he would likely have served his entire sentence on February 11, 2018, months before this matter was transferred back to this court. The People argue, therefore, that the appeal is moot because we can no longer offer defendant any relief and our opinion would be merely advisory. We agree with defendant, however, that the appeal is not moot. He is "entitled to an opportunity to clear [his] name and rid [himself] of the stigma of criminality." (People v. DeLong, supra, 101 Cal.App.4th at p. 484; id. at pp. 486-492; see In re Byrnes (1945) 26 Cal.2d 824, 827 ["Although it is conceded that, as the petitioner has served his full term for the offenses of which he was convicted in the first trial, he cannot obtain relief as to them so far as imprisonment is concerned, the question presented is not moot and he is entitled to an appeal from the judgments in that case for the purpose of clearing his name."].) If defendant prevails on this appeal, we can grant him relief from the collateral consequence of having a Three Strikes allegation and sentence on his record. Accordingly, we address the merits of the appeal. II. Buycks's Application to the Three Strikes Law
Proposition 47 reduces certain drug- and theft-related felonies and "wobblers" to misdemeanors for eligible offenders. (Buycks, supra, 5 Cal.5th at p. 871.) Once a felony is reduced to a misdemeanor under Proposition 47, it "shall be considered a misdemeanor for all purposes ...." (§ 1170.18, subd. (k).)
"Wobblers are 'a special class of crimes involving conduct that varies widely in its level of seriousness,' and may therefore be 'chargeable or ... punishable as either a felony or a misdemeanor.' " (Buycks, supra, 5 Cal.5th at p. 871, fn. 1.)
Proposition 47 is designed to ameliorate punishment, and it is broadly and liberally construed to effectuate that purpose. (Buycks, supra, 5 Cal.5th at pp. 876, 881.) Proposition 47 applies to inmates currently serving sentences for eligible offenses, and it applies to those who have completed their sentences for eligible offenses, regardless of whether their judgments are final. (§ 1170.18, subds. (a) & (f); see Buycks, at pp. 876-877.) Thus, through its procedures, Proposition 47 mitigates direct penal consequences by reducing current sentences, and it mitigates collateral penal consequences by reducing punishment based on felony convictions, such as felony-based enhancements. (See Buycks, at p. 878 ["Our courts have characterized 'the possibility of increased punishment in the event of a subsequent conviction' as 'a collateral consequence.' "]; id. at p. 883.)
In this case, defendant had not even been sentenced when his prior felony was reduced to a misdemeanor under Proposition 47, but the trial court concluded the reduced felony could still support a prior strike conviction allegation under the Three Strikes law. On appeal, we agreed, based on the Supreme Court's prior decisions addressing what we considered the analogous reduction of wobblers to misdemeanors under section 17, subdivision (b) (17(b))—such as People v. Park (2013) 56 Cal.4th 782 (Park), People v. Feyrer (2010) 48 Cal.4th 426 (Feyrer), and People v. Banks (1959) 53 Cal.2d 370.
Wobblers have historically been considered felonies until the trial court treats them as misdemeanors, after which they are "misdemeanor[s] for all purposes." (§ 17(b); see Park, supra, 56 Cal.4th at p. 790.) But, in the section 17(b) context, the "misdemeanor for all purposes" status does not operate retroactively: "If ultimately a misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively ...." (Feyrer, supra, 48 Cal.4th at p. 439, italics added; People v. Banks, supra, 53 Cal.2d at pp. 381-382 [a felony reduced under § 17 is considered a misdemeanor for all purposes thereafter, but not retroactively].) The conviction retains its felony past, even though it is currently a "misdemeanor for all purposes."
Section 17(b) currently provides: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. [¶] (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. [¶] (3) When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. [¶] (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. [¶] (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint."
For this reason, the Supreme Court has recognized that a conviction reduced to a misdemeanor under section 17(b) after the time of initial sentencing remains within reach of the Three Strikes law because that law itself defines what constitutes a strike: "the determination whether a prior conviction qualifies as a strike for purposes of sentencing under that law is based 'upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.' (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)[, italics added].) The Three Strikes law also explicitly provides that the determination of whether a prior offense constitutes a strike is not affected by the 'suspension of imposition of judgment or sentence.' (§§ 667, subd. (d)(1)(A), 1170.12, subd. (b)(1)(A).) By this language, lawmakers made clear their intent to bring within the reach of the Three Strikes law a defendant whose wobbler was reduced to a misdemeanor [pursuant to section 17(b)] after the time of initial sentencing. (See Feyrer, supra, 48 Cal.4th at pp. 443-444 & fn. 8 [finding it evident that a wobbler reduced to a misdemeanor under § 17(b)(3) after suspension of imposition of sentence could be used as a prior felony conviction under the Three Strikes law in the event the defendant were to suffer a subsequent felony conviction]; see also People v. Franklin (1997) 57 Cal.App.4th 68, 73- 74 [§ 17(b)(2), which deemed a wobbler a 'misdemeanor for all purposes' when the offender is committed to, and successfully discharged from, the Youth Authority, was one of the laws displaced by § 667, subd. (d)(1)]; People v. Superior Court (Perez) [(1995)] 38 Cal.App.4th [347,] 362-363 [a prior offense remains a felony for purposes of the Three Strikes law when the court's exercise of discretion under § 17(b)(3) to reduce a wobbler to a misdemeanor occurs after initial sentencing].)" (Park, supra, 56 Cal.4th at pp. 794-795, italics added.) In light of these cases, we concluded in our prior opinion that we believed the logic regarding the reduction of felonies under section 17(b) extended to the reduction of felonies under Proposition 47, and thus a felony reduced after the time of initial sentencing "remains a felony, and therefore a strike, for the purposes of the Three Strikes law." (People v. Rocheleau (July 27, 2016, F071948) [nonpub. opn.].)
After Buycks, however, that conclusion is no longer valid. Buycks explained that Proposition 47's "misdemeanor for all purposes" language does not have the same meaning as section 17(b)'s "misdemeanor for all purposes" language because the statutes "do not concern the same subject and serve different goals." (Buycks, supra, 5 Cal.5th at p. 885.) With section 17(b), " 'the Legislature has empowered the courts to decide, in each individual case, whether the crime should be classified as a felony or a misdemeanor,' and, in exercising that discretion, 'the court considers the facts surrounding the offense and the characteristics of the offender.' " (Buycks, at p. 886.) "[A] section 17 sentencing determination merely serves to mitigate punishment for the unique circumstances of a single individual." (Ibid.)
By contrast, Proposition 47's "misdemeanor for all purposes" language "is rooted in legislation intended to reform the needs of the criminal law by reducing penalties with respect to particular criminal offenses." (Buycks, supra, 5 Cal.5th at p. 886.) It has a universal effect that goes beyond the unique circumstances of a single individual. (Ibid.) Unlike section 17(b), Proposition 47 "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).)" (Buycks, at p. 889.) Therefore, if a conviction is reduced to a "misdemeanor for all purposes" under Proposition 47, "then it can no longer be said that the defendant 'was previously convicted of a felony' [citation] .... Instead, 'for all purposes,' it can only be said that the defendant was previously convicted of a misdemeanor." (Buycks, at p. 889, italics added.)
Thus, we take Buycks to mean that, unlike the reduction of a felony conviction under section 17(b), the reduction of a felony conviction under Proposition 47 is retroactive to the moment of that conviction—that is, the conviction was never a felony. The conviction's felony past is wiped out and replaced with a misdemeanor past. In other words, the conviction is considered a misdemeanor not only for all purposes, but for all time.
Accordingly, we conclude a felony conviction reduced to a misdemeanor under Proposition 47—having never been a felony—cannot support a felony-based prior strike conviction alleged under the Three Strikes law because the reduction "negates an element required to support" a Three Strikes allegation—a prior felony conviction. (Buycks, supra, 5 Cal.5th at p. 889 [negating an element of a felony-based enhancement]; see § 667, subd. (b) [Three Strikes law requires that the defendant has "been previously convicted of one or more prior serious or violent felony convictions"].)
In this case, the trial court reduced defendant's prior felony conviction to a misdemeanor under Proposition 47 before sentencing him on the current offense. Consequently, the prior conviction was never a felony and could not support a prior strike allegation under the Three Strikes law. The Three Strikes law did not apply and the trial court erred when it doubled defendant's sentence from 16 months to 32 months in reliance on that prior conviction.
DISPOSITION
The prior strike conviction allegation based on the 2007 prior conviction is stricken and the 32-month sentence is modified to a 16-month sentence. The trial court is directed to amend the abstract of judgment to reflect a 16-month sentence (and no application of the Three Strikes law) and to forward certified copies to the appropriate entities. As so modified, the judgment is affirmed.