Opinion
C083731
01-29-2018
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP ALLEN DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F8207)
Following a jury trial, defendant Phillip Allen Davis was convicted of assault by means of force likely to produce a great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The trial court sustained two strike (§ 1170.12) and two prior prison term allegations and sentenced defendant to an eight-year state prison term.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends one of the prison priors is unauthorized because the underlying felony had been reduced to a misdemeanor pursuant to section 1170.18 before the trial court sustained the enhancement allegation. He additionally claims trial counsel was ineffective in failing to object to the enhancement on this ground. We shall strike the prison prior and affirm the judgment as modified.
BACKGROUND
We omit a summary of the facts of defendant's crime as they are unnecessary to resolve this appeal.
The complaint contained three prior prison term allegations, the first based on a 2010 conviction for criminal threats (§ 422) in Shasta County, a 2006 conviction for battery with serious bodily injury (§ 243, subd. (d)) in El Dorado County, and a 2006 conviction for receiving stolen property (§ 496, subd. (a)) in Shasta County.
On March 24, 2015, defendant filed a section 1170.18 petition to reduce the Shasta County receiving stolen property prior to a misdemeanor. The Shasta County Superior Court granted the petition on May 1, 2015.
We grant defendant's request to take judicial notice of defendant's resentencing petition in the Shasta County Superior Court and the court's ruling on it. --------
On September 28, 2016, the trial court dismissed the allegation based on the 2006 conviction for battery with serious bodily injury and sustained the two other prison priors. Defense counsel raised no objection to the prior based on the receiving conviction that had been reduced to a misdemeanor.
DISCUSSION
Proposition 47 made "certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Convicts currently serving or who have completed a sentence for a crime subject to Proposition 47 may petition to have the offense reduced to a misdemeanor and to be resentenced, if applicable. (§ 1170.18, subds. (a), (b), (g).) "A felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (§ 1170.18, subd. (k) ("subdivision (k)").)
"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. Tenner (1993) 6 Cal.4th 559, 563.)
Defendant contends that the "for all purposes" language of subdivision (k) prevents his receiving prior from being considered a felony in any proceeding after the crime was reduced to a misdemeanor. We agree.
In People v. Kindall (2016) 6 Cal.App.5th 1199 (Kindall), this court held, where a felony underlying a prior prison term has been redesignated as a misdemeanor "for all purposes" under Proposition 47 before the prior was adjudicated, a defendant cannot be subject to additional punishment for that prior prison term pursuant to section 667.5, subdivision (b). (Kindall, at p. 1205.) There, this court modified the judgment to strike prior prison terms erroneously imposed, holding once a felony prior is reduced to a misdemeanor, it ceases "to exist as [a] felon[y] for all purposes moving forward." (Ibid.) Under that circumstance, the People can no longer prove defendant was previously convicted of that felony because "the now-reduced conviction[] at issue had ceased to exist as [a] felon[y]; in [its] place [was a] previous misdemeanor conviction[], for all purposes. These purposes include the adjudication of charged enhancements." (Ibid.)
The Attorney General asserts that Kindall is incorrect because the situation presented in Kindall and here involves the retroactive rather than prospective application of the prior felony conviction. No so.
In People v. Park (2013) 56 Cal.4th 782 (Park), the Supreme Court held that a felony conviction properly reduced to a misdemeanor under section 17, subdivision (b) could not subsequently be used to support an enhancement under section 667, subdivision (a). (Park, at p. 798.) The Supreme Court distinguished this from a retroactive application of the conviction's felony status. "There is no dispute that, under the rule in [prior California Supreme Court] cases, [the] defendant would be subject to the section 667[, subdivision] (a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." (Id. at p. 802.)
We addressed the Park dicta in Kindall. "The dicta from Park cited above does not govern the instant case, because it does not speak to the adjudication of the priors, and the required findings regarding the convictions at issue at the time the truth of the allegations is found, which is the question we must answer here. Similarly, the case on which the People rely in their briefing to describe a 'trigger date' for the priors' application concerned an entirely different question than that at hand here." (Kindall, supra, 6 Cal.App.5th at pp. 1204-1205.)
We see no reason to depart from Kindall. The receiving prior was a misdemeanor when the trial court made the true finding, so the prison prior based on this conviction cannot stand. We shall strike the prison prior.
Since we are striking the prison prior, we decline to address defendant's ineffective assistance of counsel claim.
DISPOSITION
The judgment is modified to strike the prison prior based on the 2006 conviction for receiving stolen property. As modified, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.