Opinion
F074775
10-16-2019
THE PEOPLE, Plaintiff and Respondent, v. EMANUAL QUINTAR SANDERS, Defendant and Appellant.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF161265A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Snauffer, J.
-ooOoo-
A jury convicted appellant Emanual Quintar Sanders of robbery (Pen. Code, § 212.5, subd. (c); count 1); misdemeanor assault (§ 242), a lesser included offense of the assault with a deadly weapon offense (§ 245, subd. (a)(1)) charged in count 2; and misdemeanor brandishing an imitation firearm (§ 417.4; count 3). In a separate proceeding, the court found true two serious felony enhancements (§ 667, subd. (a)), eight prior prison term enhancements (§ 667.5, subd. (b)), and allegations that Sanders had two prior convictions within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
The jury deadlocked on the personal use of a deadly or dangerous weapon enhancement alleged in that count (§ 12022, subd. (b)(1)).
On appeal, Sanders contends his two most recent convictions cannot be used to impose prior prison term enhancements because they were reduced to misdemeanors and that this caused his remaining convictions to "washout" for purposes of imposing such enhancements. Respondent contends the court erred in imposing a one-year weapon enhancement. We find merit to both contentions and modify the judgment accordingly. In all other respects, we affirm.
FACTS
On August 21, 2015, while Matthew Smith and some friends were in a motel parking lot, Sanders struck Smith, got on top of him, and continued hitting him. Sanders took Smith's backpack that contained a laptop and two antique Japanese hooked swords. When Smith demanded his property be returned, an altercation ensued during which Sanders pulled out a pellet BB gun and struck Smith on the head with it, leaving a bump and bruising. When police officers searched Sanders after the robbery, they found a black pellet BB gun in his waistband.
On November 17, 2016, the court struck one of Sanders's strike convictions and sentenced him to an aggregate, determinate prison term of 26 years: an upper term of 10 years on his robbery conviction in count 1, a one-year personal use of a deadly weapon enhancement in that count, two 5-year serious felony enhancements, and five 1-year prior prison term enhancements. The court imposed stayed terms on counts 2 and 3.
Sanders served a prison term on all the convictions underlying his eight prior prison term enhancements except his 2005 possession of drugs conviction. This resulted in the court not imposing a prior prison term enhancement based on that conviction. The court also did not impose a prior prison term enhancement based on his 1992 attempted first degree burglary conviction or his 2000 robbery conviction because those convictions were used to impose two serious felony enhancements. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 [sentence cannot be enhanced for prior serious felony conviction and prison term served on that conviction].)
DISCUSSION
Background
The eight prior prison term enhancements the court found true were based on the following convictions:
| Offense | Date Convicted |
| 1. Grand Theft Person (§ 487, subd. (c)) | 6/8/2012 |
| 2. Possession of Drugs (Health & Saf. Code, § 11350, subd. (a)) | 3/19/2008 |
| 3. Receiving a Stolen Vehicle (§ 496d, subd. (a)) | 1/23/2006 |
| 4. Possession of Drugs (Health & Saf. Code, § 11350, subd. (a)) | 4/22/2005 |
| 5. Robbery (§ 212.5, subd. (c)) | 1/25/2000 |
| 6. Transportation of Drugs (Health & Saf. Code, § 11352, subd. (a)) | 1/27/1997 |
| 7. Attempted First Degree Burglary (§§ 664/459) | 9/03/1992 |
| 8. Grand Theft Person (§ 487.2) | 11/26/1990 |
Sanders's 2012 grand theft conviction was reduced to a misdemeanor on February 2, 2015, approximately six months before he committed the underlying offenses. His 2008 drug possession conviction was reduced to a misdemeanor on March 21, 2018, while this appeal was pending.
Sanders contends that because his 2012 grand theft conviction and his 2008 drug possession conviction were reduced to misdemeanors, the prior prison term enhancements based on those convictions must be stricken. He further contends that the reduction of these convictions triggered the washout period of section 667.5, subdivision (b), which precluded the imposition of any prison priors. Respondent concedes the reduction of Sanders's grand theft conviction to a misdemeanor precluded the trial court from imposing a prior prison term conviction based on that conviction. Respondent also notes that the court erred in imposing a one-year enhancement term on count 1 because the jury deadlocked on the weapon enhancement in that count. However, respondent contends the reduction of Sanders's 2008 drug possession conviction does not retroactively alter the sentence imposed by the trial court. Respondent further contends the reduction of Sanders's 2012 and 2008 convictions to misdemeanors does not affect the washout period of section 667.5, subdivision (b) because Sanders served prison terms on those convictions. We find merit to Sanders's contentions and we agree with respondent that the court erred when it imposed a one-year arming enhancement in count 1.
The Two Prior Prison Term Enhancements at Issue Must be Stricken
On November 4, 2014, California voters approved Proposition 47, which took effect the following day. (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) The legislation reduced to misdemeanors several drug-related offenses previously classified as felonies or wobblers (crimes punishable as either felonies or misdemeanors). (Ibid.) Proposition 47 also added section 1170.18, under which eligible defendants "who have already completed their felony sentences for Proposition 47 eligible offenses may petition to have their felony convictions be 'designated as misdemeanors.' (§ 1170.18, subd. (f).)" (People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 4 (Buycks).)
In Buycks, the Supreme Court held that Proposition 47 "negate[d] a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor." (Buycks, supra, 5 Cal.5th at p. 890.) Pursuant to the reasoning of In re Estrada (1965) 63 Cal.2d 740, the high court also determined that section 1170.18 can apply retroactively. (Buycks, supra, at pp. 881-883.) Therefore, "as to nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, ... 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." (Id. at p. 888.)
Since Sanders's judgment is not final and his 2012 grand theft and 2008 possession of drugs convictions were reduced to misdemeanors, in accord with Buycks, we will strike the prior prison term enhancements the trial court imposed based on those convictions.
Sanders also contends defense counsel provided ineffective representation by his failure to petition the court to reduce his 2008 drug possession conviction because this would have prevented the court from imposing a prior prison term enhancement based on that conviction. This contention is moot in light of our decision to strike the prison term enhancement that was based on that conviction.
Sanders's Remaining Convictions were Washed Out
Section 667.5, subdivision (b) imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Section 1170.18, subdivision (k) provides that once redesignated, prior convictions "shall be considered a misdemeanor for all purposes," except as it relates to possession or control of a firearm, an exception not applicable here.
"The purpose of the prior prison term enhancement of section 667.5, subdivision (b), is ' "to punish individuals" who have shown that they are
" 'hardened criminal[s] who [are] undeterred by the fear of prison.' " ' [Citations.] The 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." ' [Citations.]
"Courts sometimes refer to the fourth requirement, which exempts from the enhancement defendants who have not reoffended for five years, as ' " 'washing out.' " ' [Citations.] ' "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." ' [Citations.] '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.' [Citations.] '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.' " (People v. Abdallah (2016) 246 Cal.App.4th 736, 742-743, fn. omitted, italics in original.)
In People v. Warren (2018) 24 Cal.App.5th 899 (Warren), this court noted that: "(1) A goal of Proposition 47, when a prior offense is found pursuant to a Proposition 47 petition not to be worthy of treatment as a felony, is to relieve the defendant of the burden of a felony conviction, including the burden of a felony sentence[; and that] (2) [d]espite its literal terms, section 667.5, subdivision (b), manifests no intent inconsistent with this goal of Proposition 47." (Warren, supra, at p. 917.) Thus, we concluded that, "the washout provision of section 667.5, subdivision (b), should be construed to allow a prior felony to wash out provided it is followed by a five-year period free of felony convictions and incarceration in prison or in county jail pursuant to section 1170, subdivision (h), except that such incarceration shall not prevent the prior felony from washing out if it was imposed for an offense that has been designated a misdemeanor or resentenced as a misdemeanor pursuant to a petition filed under section 1170.18." (Ibid.; accord People v. Kelly (2018) 28 Cal.App.5th 886, 901-902.)
Since Sanders's 2012 grand theft conviction and his 2008 drug possession conviction were reduced to misdemeanors, more than five years passed during which Sanders was free of both prison custody and the conviction of a new offense resulting in a felony conviction. Therefore, his remaining convictions were washed out for purposes of imposing prior prison term enhancements and we will strike the remaining three such enhancements the court imposed.
The Weapon Enhancement in Count 1
The jury deadlocked on the weapon enhancement alleged in count 1. Thus, we agree with respondent that the court did not have the authority to impose a one-year weapon enhancement in that count because the jury did not unanimously find that enhancement true and we will also strike it.
DISPOSITION
The five 1-year prior prison term enhancements and the one-year weapon enhancement the trial court imposed on count 1 are stricken and Sanders's aggregate sentence is reduced from 26 years to 20 years. The trial court is directed to issue an amended abstract of judgment that incorporates these modifications and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.