Opinion
E068363
09-06-2018
THE PEOPLE, Plaintiff and Respondent, v. ELVIS ARMANDO MARTINEZ-TUCK, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF146818) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Elvis Armando Martinez-Tuck appeals from the superior court's order denying his request to strike a prior prison term enhancement from a sentence imposed upon defendant in 2011. The superior court had previously reduced to a misdemeanor under Proposition 47 the felony upon which the enhancement was based. We conclude that Proposition 47 does not apply retroactively to previously imposed prior prison term enhancements once a judgment of conviction attains finality.
STATEMENT OF THE CASE
In 2008, in Riverside County Superior Court case No. RIF146818, defendant pled guilty to possessing methamphetamine. (Health & Saf. Code, § 11377.). The court sentenced him to 16 months in prison.
In 2011, in Riverside County Superior Court case No. RIF10001848, defendant pled guilty to active participation in a criminal street gang. (Pen. Code, § 186.22, subd. (a).) Defendant admitted a prior prison term enhancement under section 667.5, subdivision (b), and the court sentenced him to 13 years in state prison, including one year for the prior prison term enhancement.
Section references are to the Penal Code except where otherwise indicated.
Defendant appealed the 2011 conviction to this court. We recalculated defendant's presentence custody credits, but otherwise affirmed the judgment. (People v. Tuck (Apr. 25, 2013, E055503) [nonpub. opn.].) This court issued the remittitur on July 1, 2013.
Defendant's request for judicial notice, filed December 19, 2017, is granted.
In April 2016, the trial court granted defendant's petition, filed under section 1170.18, to have his 2008 conviction for possessing methamphetamine reduced to a misdemeanor.
The People clarified in its response to defendant's petition that, although defendant was still incarcerated, he had completed his sentence for the 2008 conviction. --------
In September 2016, defendant wrote a letter to the trial court asking that the prior prison term enhancement in his 2011 case be stricken because the underlying felony, the methamphetamine possession from the 2008 case, had been reduced to a misdemeanor. The court denied defendant's request on the ground that defendant "is serving a one-year prior that was valid at the time of his current sentence."
In April 2017, defendant wrote a similar letter to the court. The court denied the request on the same basis as in 2016.
This appeal followed.
DISCUSSION
Defendant argues his prior prison term enhancement should be stricken because the underlying felony was reduced to a misdemeanor. The People counter, and this court agrees, that Proposition 47 does not authorize the trial court to strike that enhancement when it had been properly imposed at sentencing and the judgment became final before the underlying felony was reduced to a misdemeanor.
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the conviction as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743-744 (Abdallah).) Section 1170.18, subdivision (f), authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, at pp. 743-744.) Based on its authority under section 1170.18, subdivision (f), the trial court redesignated defendant's 2008 conviction for possessing methamphetamine to a misdemeanor.
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. Because defendant's prior conviction was redesignated as a misdemeanor after the judgment in his 2011 case became final in 2013, the trial court was correct when it declined to strike the section 667.5, subdivision (b), enhancement.
Appellate courts have held that the plain language of the statute and its " 'for all purposes' " requirement precludes the imposition of a prior prison term enhancement where the underlying felony has been reduced to a misdemeanor under Proposition 47. (People v. Call (2017) 9 Cal.App.5th 856, 865; People v. Kindall (2016) 6 Cal.App.5th 1199, 1205; Abdallah, supra, 246 Cal.App.4th at p. 746.)
In Abdallah, supra, 246 Cal.App.4th 736, the defendant was tried and convicted prior to the enactment of Proposition 47, but sentenced thereafter. (Abdallah, at p. 739.) The trial court imposed a prison sentence including, among other things, a one-year enhancement for a felony prison prior (§ 667.5, subd. (b)), just after it had reduced the felony underlying that enhancement to a misdemeanor pursuant to Proposition 47. (Abdallah, at p. 740.) The Court of Appeal found error, holding that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from subsequently relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). (Abdallah, at p. 746.) As Abdallah points out, the California Supreme Court has described the elements required to qualify for a prison prior enhancement as follows: "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." (People v. Tenner (1993) 6 Cal.4th 559, 563; see Abdallah, at p. 742.) And as Abdallah concludes, the first of those required elements is eliminated when the defendant's prior conviction is redesignated a misdemeanor " 'for all purposes' " under section 1170.18, subdivision (k). (Abdallah, at p. 746.)
In People v. Jones (2016) 1 Cal.App.5th 221, review granted September 14, 2016, S235901, this court affirmed the trial court's order denying the defendant's motion to strike a prison prior enhancement of his sentence based on the circumstance that the underlying felony conviction had been reclassified as a misdemeanor after his conviction was final and he had begun serving his prison sentence. (Id. at p. 228.) We held that "section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow offenders to request and courts to grant retroactive designation of offenses . . . but no provision allows offenders to request or courts to order retroactively striking or otherwise altering an enhancement based on such a redesignated prior offense." (Id. at p. 230.) We found that "the direction of section 1170.18, subdivision (k) that any redesignated conviction 'shall be considered a misdemeanor for all purposes,' applies, at most, prospectively to preclude future or non-final sentence enhancements based on felony convictions redesignated as misdemeanors under Proposition 47." (Ibid.)
Together, Abdallah and Jones teach that once a conviction is reduced to a misdemeanor pursuant to Proposition 47, it may not subsequently be used as the basis for enhancing a new sentence, but section 1170.18 does not provide a mechanism for recall of a sentence and resentencing solely to strike an enhancement that is part of a sentence that is otherwise final.
Similarly, our Supreme Court recently held in People v. Buycks (2018) 5 Cal.5th 857, 879, that "a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect."
Here, defendant's 2011 sentence was otherwise final at the time his 2008 felony was reduced to a misdemeanor in 2016. For this reason, we hold that the trial court was without authority to grant defendant's request to strike the prior prison term enhancement that had been properly imposed in 2011.
DISPOSITION
The court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.