Opinion
F074733
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. BYRON LAMONT THROWER, Defendant and Appellant.
Jan B. Norman, 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, Catherine Chatman and Michael Dolida, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF164071A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Jan B. Norman, 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, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Snauffer, J. and DeSantos, J.
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Defendant Byron Lamont Thrower was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [count 1]); second degree robbery (§ 212.5, subd. (c) [count 2]); and resisting arrest (§ 148, subd. (a)(1) [count 3]). The information further alleged he personally used a deadly weapon (§ 12022, subd. (b)) in connection with count 2; and he served four separate prior prison terms (§ 667.5, subd. (b)) in connection with counts 1 and 2. The information was later amended to add a second count of resisting arrest (§ 148, subd. (a)(1) [count 4]).
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
Following trial, the jury found defendant guilty as charged and found true the deadly weapon allegation. In a bifurcated proceeding, the prosecution withdrew two of the four prior prison term allegations. Thereafter, the trial court determined defendant had been convicted of narcotics possession (Health & Saf. Code, § 11350, subd. (a)) on September 23, 2011, and firearm possession by a felon (former § 12021, subd. (a)(1)) on November 17, 2009, and found true the two remaining prior prison term allegations.
Former section 12021, subdivision (a)(1) was repealed operative January 1, 2012, but its provisions were reenacted as section 29800, subdivision (a)(1). (Stats. 2010, ch. 711, §§ 4, 6.) Because defendant had been convicted under the repealed statute, which was merely renumbered without substantive change, we will refer to former section 12021 throughout this opinion for clarity and convenience. In addition, for brevity, we will omit the word "former" henceforth. (See, e.g., People v. Sanders (2012) 55 Cal.4th 731, 734, fn. 2.)
Defendant received an aggregate sentence of eight years: an upper term of five years, plus one year for the deadly weapon enhancement and two years for the two prior prison term enhancements, on count 2; a concurrent one-year term on count 3; and a concurrent one-year term on count 4. Execution of punishment on count 1 was stayed pursuant to section 654.
While defendant's case was pending on appeal, our court issued its opinion in People v. Warren (2018) 24 Cal.App.5th 899 (Warren) and the California Supreme Court issued its opinion in People v. Buycks (2018) 5 Cal.5th 857 (Buycks).
In view of Warren and Buycks, defendant makes two contentions on appeal. First, the prior prison term enhancement based on the Health and Safety Code section 11350 violation must be stricken because the underlying felony conviction was redesignated as a misdemeanor in 2018. Second, the prison term enhancement based on the section 12021 violation was " 'washed out' " pursuant to section 667.5, subdivision (b). The Attorney General concedes defendant is entitled to relief with respect to the former but maintains the washout provision does not apply to the latter. For the reasons set forth below, we conclude the two prior prison term enhancements must be stricken.
Defendant previously filed a motion asking us to judicially notice the trial court's February 2, 2018 minute order, which corroborates the redesignation. Our ruling was deferred pending consideration of the appeal on the merits. On appeal, the Attorney General does not object to defendant's request. We hereby grant the motion.
Initially, defendant argued his attorney rendered ineffective assistance by failing to file a petition to redesignate the felony narcotics possession conviction. As noted, a petition was subsequently filed and granted. (See ante, fn. 3.) Since we conclude the two prior prison term enhancements must be stricken, we need not address this claim.
STATEMENT OF FACTS
On May 2, 2016, around 4:45 a.m., defendant tried to purchase a hamburger, cheeseburger, sports drink, and water bottle at a convenience store in Bakersfield. The cashier bagged the items and ran defendant's electronic benefit transfer card through the card reader. However, the card was declined. The cashier repeated the process up to seven times, but the result did not change. When the cashier advised defendant to leave the merchandise on the counter and exit the premises, defendant cried "mother[]fucker," took the bag, and ran off.
The cashier chased defendant outside. When the cashier got close enough to defendant, he tried to retake the bag. Consequently, the bag tore apart and the items fell on the ground. Defendant picked up the beverages and attempted to flee, but the cashier grabbed his shoulder and told him to leave the items. In response, defendant pulled out a knife and said, "Don't touch me. Don't come . . . closer . . . I['ll] kill you." The cashier, who was afraid, backed away "three, four arm length[s]." After defendant fled, the cashier phoned 911.
Bakersfield Police Officer Jauch was dispatched to the scene. He spoke with the cashier, who reported what had occurred. Thereafter, Jauch patrolled the area in his vehicle and found defendant with the sports drink and water bottle on his person. Jauch activated the spotlight, exited the vehicle, and yelled, "Bakersfield Police Department, stop." Defendant retorted, "Man, what the fuck did I do?" He then "pac[ed] back and forth fairly quickly." Jauch ordered defendant to lie down on the ground. Defendant remarked, "Man, I didn't do shit." Jauch took out his firearm and again ordered defendant to lie down on the ground. Defendant "lunged forward onto his stomach and rapidly started doing push-ups." Jauch ordered defendant to stop and "place his arms straight out in front of him." Finally, defendant complied.
Meanwhile, Officer Vaughn arrived as Jauch's backup. He approached defendant when the latter was on the ground and grabbed his right wrist. However, defendant "tried to . . . pull it back." While Vaughn held onto the wrist, Jauch "jumped on [defendant] and secured his left hand." Once handcuffed, defendant stopped resisting.
DISCUSSION
I. Pertinent law
a. Sentence enhancement for a prior prison term
Section 667.5, subdivision (b) "imposes a one-year enhancement for a prior, separate prison term served on a felony conviction. 'Imposition of a sentence enhancement under . . . section 667.5 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.]" (People v. Kelly (2018) 28 Cal.App.5th 886, 896 (Kelly).) Section 667.5, subdivision (b) "provides for a one-year sentence enhancement on a new felony conviction resulting in a prison sentence where the defendant has previously been convicted of a felony and served a prison term. The enhancement is imposed for 'each prior separate prison term . . . for any felony.' Under the washout provision, however, the enhancement is not imposed if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration." (Warren, supra, 24 Cal.App.5th at p. 909, quoting § 667.5, subd. (b), italics omitted.) "Thus, '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.' [Citation.]" (Buycks, supra, 5 Cal.5th at p. 889, italics omitted.)
b. Proposition 47
On November 4, 2014, California voters enacted Proposition 47, which took effect the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 "reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for reducing convictions to misdemeanors, depending on whether the person was currently serving a sentence for an eligible felony conviction or had completed his sentence." (Kelly, supra, 28 Cal.App.5th at p. 897.) "Relevant to the instant appeal, section 1170.18, subdivision (f), authorizes the court to redesignate convictions for persons who have already completed their sentences." (Kelly, supra, at p. 897.) "[I]n addition to affording persons the ability to retroactively have their felony convictions be reduced to misdemeanors, Proposition 47, through section 1170.18, subdivision (k), mandates that the reduced conviction 'shall be considered a misdemeanor for all purposes.' " (Buycks, supra, 5 Cal.5th at p. 878, italics omitted.)
Our Supreme Court held "the reduction of a felony conviction to a misdemeanor conviction under Proposition 47 exists as 'a misdemeanor for all purposes' prospectively, but, under the Estrada rule, it can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014." (Buycks, supra, 5 Cal.5th at p. 883.) "[A]s 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 under the measure." (Buycks, supra, at p. 888.) "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.' [Citation.] Therefore, if the 'felony conviction that is . . . 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' [citations], 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." (Buycks, supra, at p. 889.)
In re Estrada (1965) 63 Cal.2d 740. --------
II. Analysis
a. Prior prison term enhancement based on the Health and Safety Code section 11350 violation
As noted, "the Supreme Court has provided authority stating that enhancements under section 667.5 should not apply to prior convictions that were redesignated as misdemeanors." (Kelly, supra, 28 Cal.App.5th at p. 900.) Also, the Attorney General concedes defendant's felony narcotics possession conviction was redesignated as a misdemeanor on February 2, 2018, and the judgment in the instant case was not final at the time Proposition 47 took effect. Therefore, we conclude the prior prison term enhancement based on the Health and Safety Code section 11350 violation must be stricken.
b. Prior prison term enhancement based on the section 12021 violation
The Attorney General contends:
"In the present case, the 'wash out' rule does not apply because [defendant] did not satisfy both prongs of the test. Based on the reduction of his possession of a controlled substance conviction . . . from a felony to a misdemeanor[,] [defendant] can satisfy one prong (i.e., no commission of a felony) of the test. However, while his conviction for that crime may have been reduced, it does not change the fact that [defendant] was sentenced to sixteen months for that crime. . . . Thus, [defendant] cannot satisfy the other prong (i.e., lack of prison time) of the 'wash out' rule. Consequently, [defendant] is not entitled to any sentencing relief for his felon in possession of a firearm prior prison term enhancement."We disagree and addressed this argument in a previous case. In Warren, the majority of our court held:
"To summarize: (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. (2) Despite its literal terms, section 667.5, subdivision (b), manifests no intent inconsistent with this goal of Proposition 47. (3) Therefore, 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." (Warren, supra, 24 Cal.App.5th at p. 917.)"The enactment of Proposition 47, therefore, modified the literal terms of the washout provision of section 667.5[, subdivision ](b), in that a felony reduced to a misdemeanor under section 1170.18 shall be construed a misdemeanor for all purposes, including the effect of any punishment resulting thereform. Any prior prison term served as a result of a felony reduced to a misdemeanor under section 1170.18 shall not be construed as prison custody under the washout provision of section 667.5[, subdivision ](b)." (Kelly, supra, 28 Cal.App.5th at p. 901.)
Additionally, in Kelly, we recognized Buycks "lends further support to the reasoning and holdings of Warren." (Kelly, supra, 28 Cal.App.5th at p. 901.) The high court "found that Proposition 47 informed the voters that the act shall be broadly construed to mitigate criminal punishment and that the 'ameliorative changes are intended to "apply to every case to which it constitutionally could apply . . . ." ' [Citation.]" (Ibid.) This "broad interpretation of Proposition 47 by the California Supreme Court indicates that it should likewise apply to mitigate the effects of the washout rule." (Ibid.) Moreover, in a footnote, the high court disapproved People v. Acosta (2016) 247 Cal.App.4th 1072 " 'to the extent that it held that the "misdemeanor for all purposes" language of section 1170.18, subdivision (k) alters only the status of felony convictions, not the fact that the defendant has served a qualifying prior felony prison term for purposes of a section 667.5, subdivision (b) enhancement.' [Citation.]" (Kelly, supra, at p. 902, italics omitted.) "This language clearly indicates that the language of section 1170.18, subdivision (k), does alter more than just the fact of the underlying felony conviction" (Kelly, supra, at p. 902) and "[t]he term 'misdemeanor for all purposes' requires courts to disregard the prior prison terms associated with redesignated convictions, and treat the convictions, punishment, and other consequences of the convictions as if they were misdemeanor convictions in the first instance" (ibid., fn. omitted).
In accordance with Warren and Kelly, we conclude the prison custody attributable to defendant's 2011 narcotics possession conviction does not bar application of the washout provision to his 2009 firearm possession conviction. The prior prison term enhancement based on the section 12021 violation must be stricken.
DISPOSITION
The judgment is modified to strike the two prior prison term enhancements based on defendant's September 23, 2011 conviction for possession of narcotics (Health & Saf. Code, § 11350, subd. (a)) and his November 17, 2009 conviction for possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)). Defendant's aggregate sentence is reduced to six years. The trial court is directed to amend the abstract of judgment accordingly and to transmit certified copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.