Opinion
C078836
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR HONDELERO DAZO, SR., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF-14-1970) OPINION ON TRANSFER
In our prior opinion in this case we decided that if a defendant admits prior prison term allegations (Pen. Code, § 667.5, subd. (b)) before the passage of Proposition 47 and is sentenced after its passage, those allegations—based on convictions now deemed misdemeanors pursuant to Proposition 47—were still valid. Thereafter, the Supreme Court granted defendant's petition for review and ultimately transferred the case with directions for this court to vacate our prior decision and to reconsider the cause in light of the recently decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks). (See People v. Dazo (Jan. 26, 2016, C078836) [nonpub. opn.], review granted Apr. 13, 2016, S232486, and ordered vacated and transferred Sept. 19, 2018.) Applying Buycks, we conclude such prison priors are invalid.
Undesignated statutory references are to the version of the Penal Code in effect at the time these events occurred unless otherwise stated.
PROCEDURAL BACKGROUND
On July 11, 2014, defendant Victor Hondelero Dazo, Sr., pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)) while admitting allegations of a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (c)) and three prior prison terms. The stipulated sentence was eight years in state prison. The prior prison term allegations were based on a May 3, 2010 conviction for possession of a controlled substance for sale (Health & Saf. Code, § 11378), a May 2, 1996 conviction for possession of a controlled substance (Health & Saf. Code, § 11377), and a February 15, 1995 conviction for second degree burglary (Pen. Code, § 459). Sentencing was stayed for several months due to defendant's health problems.
On February 6, 2015, defendant filed a "motion to dismiss prison priors due to resentencing pursuant to Penal Code [section] 1170.18." At the February 25, 2015 sentencing hearing, the trial court reduced the 1996 prior conviction for possession of a controlled substance (Health & Saf. Code, § 11377) to a misdemeanor and declined to dismiss the prior prison term enhancements. It then imposed the stipulated eight-year prison term, which included three years for the prison priors.
DISCUSSION
Defendant contends the trial court erred when it found that designating a prior conviction as a misdemeanor would not affect the validity of the prior prison term allegation based on such a conviction.
Proposition 47, "the Safe Neighborhoods and Schools Act" (the Act), which was enacted on November 4, 2014, requires "misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70.) Among the affected crimes is possession of a controlled substance, which is now a misdemeanor barring certain exceptions not relevant here. (See Health & Saf. Code, § 11377.) Since the prior prison term enhancement requires that the defendant was convicted of a felony and served a prison term for that conviction (Pen. Code, § 667.5, subd. (b) ["the court shall impose a one-year term 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"]), this raises the question of whether a prior prison term enhancement based on what is now a misdemeanor conviction survives the Act.
In Buycks, supra, 5 Cal.5th 857, the Supreme Court held that "Proposition 47's mandate that the resentenced or redesignated offense 'be considered a misdemeanor for all purposes' (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors" (id. at p. 871). Therefore, Proposition 47 authorizes striking a section 667.5 enhancement "if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure." (Buycks, at p. 888.) A prison prior based on a felony that is now a misdemeanor after Proposition 47 is no longer valid.
The trial court reduced the 1996 conviction for possession of a controlled substance to a misdemeanor; the prison prior based on that conviction is now invalid. Since possession of a controlled substance for sale (Health & Saf. Code, § 11378) is not one of the crimes reduced to a misdemeanor by Proposition 47 (see § 1170.18, subd. (a)), the prison prior based on that conviction remains valid after Buycks. While a second degree burglary conviction can be a misdemeanor following Proposition 47, only those burglaries "defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)" qualify. (§ 459.5, subd. (a); see § 1170.18, subd. (a).) Neither the trial court's oral pronouncement nor the minute order show any ruling from the court regarding the portion of defendant's motion in which he requested that the 1995 second degree burglary conviction be reduced to a misdemeanor. On remand, the trial court shall rule on the motion, and, if the second degree burglary is reduced to a misdemeanor, then the corresponding prison prior is no longer valid.
Although there is a greater than five-year period between the May 3, 2010 possession for sale prior and the February 15, 1995 second degree burglary prior, it is premature to determine whether the 1995 prior is now invalid under the five-year "washout" provision of section 667.5, since the complaint contained a prior prison term allegation based on defendant's conviction for an unspecified felony on February 15, 1997. If the trial court denies defendant's petition to reduce the 1995 prior to a misdemeanor on remand, it should then determine whether the prison prior based on that conviction is washed out. --------
DISPOSITION
The sentence is vacated. The prior prison term enhancement based on the 1996 conviction for possession of a controlled substance (Health & Saf. Code, § 11377) is stricken and the matter is remanded for further proceedings consistent with this opinion.
BUTZ, Acting P. J. We concur: DUARTE, J. HOCH, J.