Opinion
A146213
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES RAY WASHINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR163469)
Defendant James Ray Washington appeals from the trial court's denial of his application to redesignate his 2002 felony conviction for possession of cocaine as a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). The trial court concluded that defendant's 2004 conviction for second degree robbery, for which he is serving an indeterminate term of 25 years to life under the Three Strikes law, disqualified him from relief under Proposition 47. For the reasons discussed below, we conclude that the 2004 second degree robbery conviction did not disqualify defendant from relief and, accordingly, reverse and remand to the trial court with directions to redesignate his 2002 felony conviction for possession of cocaine as a misdemeanor.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2002, pursuant to a negotiated disposition in the above-entitled Solano County matter, defendant entered a no contest plea to one felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and was sentenced to two years in state prison.
On February 19, 2004, in an unrelated Napa County matter, defendant pled guilty to one count of second degree robbery (Pen. Code, § 211) and was sentenced to an indeterminate term of 25 years to life under the Three Strikes law (§ 677, subds. (b)-(i)). This court affirmed the 2004 conviction on appeal. (People v. Washington (Jan. 21, 2005, A107506) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise indicated.
We grant the Attorney General's unopposed request that we take judicial notice of the record in the prior appeal, which establishes the factual predicate for the argument that defendant is ineligible for relief under Proposition 47—namely, that he is serving an indeterminate term of 25 years to life under the Three Strikes law.
Many years later, following the enactment of Proposition 47, defendant submitted an application to redesignate his 2002 felony conviction for possession of cocaine as a misdemeanor. The prosecution opposed the application, arguing that defendant's indeterminate sentence of 25 years to life in the Napa County matter rendered him ineligible for relief under Proposition 47. The trial court agreed and denied the application. Defendant timely appeals.
DISCUSSION
Proposition 47 and its Reclassification Procedures
Proposition 47, enacted by the electorate in November of 2014, reclassified certain drug- and theft-related offenses from felonies or wobblers to misdemeanors, unless committed by an ineligible defendant. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) As pertinent here, Proposition 47 reduced possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), from a felony to a misdemeanor, unless the defendant has one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) (commonly referred to as "super strike" offenses) or for an offense requiring registration as a sex offender pursuant to section 290, subdivision (c). (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.)
Proposition 47 also enacted section 1170.18, which created a procedure whereby an eligible defendant who has suffered a felony conviction of one of the reclassified crimes can petition to have it designated as a misdemeanor. (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.) Section 1170.18 establishes two separate procedures for reclassifying a prior offense as a misdemeanor.
An eligible defendant who is currently serving a felony sentence for an offense reclassified as a misdemeanor may petition to recall the sentence and request resentencing. (§ 1170.18, subd. (a).) If the petitioner meets the statutory eligibility criteria, he or she is entitled to resentencing unless the trial court determines, in its discretion, that resentencing would pose "an unreasonable risk of danger to public safety." (Id., subd. (b).)
An eligible person who has already completed his or her sentence for an offense reclassified as a misdemeanor may file an application to have his or her felony conviction redesignated as a misdemeanor. (§ 1170.18, subd. (f).) No hearing is required unless requested by the applicant, and if the application satisfies the criteria in section 1170.18, subdivision (f), the court "shall" designate the felony offense as a misdemeanor. (Id., subds. (g), (h).) A trial court does not have discretion to deny the application based on current dangerousness. (People v. Lewis (2016) 4 Cal.App.5th 1085, 1092.)
Section 1170.18, subdivisions (f) through (h), provide in full as follows: "(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors. [¶] (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor. [¶] (h) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)."
While the parties do not expressly address the question of which of the two procedures applies, it is clear that the latter procedure governs the present case because defendant has long since completed the two-year sentence he received in 2002 for felony possession of cocaine, including any related period of parole. (See People v. Jefferson (1999) 21 Cal.4th 86, 95-96, citing §§ 3000, subd. (b), 3057 [maximum period of parole for most determinate sentences is three years and maximum period of confinement for any violations thereof is one year].) Thus, the trial court correctly characterized defendant's request as "an application for reduction of a charge to a misdemeanor pursuant to [section] 1170.18(f)."
The parties' briefs in both this court and the trial court similarly reference section 1170.18, subdivision (f).
Defendant's Entitlement to Relief Under Proposition 47
Turning to the merits of the appeal, the Attorney General advances three arguments why the trial court's ruling should be affirmed. We address each of them in turn.
First, the Attorney General asserts that any issues relating to redesignation of defendant's 2002 felony conviction for possession of cocaine are moot, reasoning that "[b]ecause [defendant] is currently serving a life sentence under the three strikes law based on his commission of numerous serious crimes unrelated to his drug possession offense, the reduction of his felony drug offense to a misdemeanor will have no practical effect." This argument was squarely rejected in People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez), a case decided after the completion of appellate briefing in this matter. As the Court of Appeal explained in Hernandez, "if defendant is ultimately successful with his section 1170.18 petition, he will have one of his felony convictions reduced to a misdemeanor. Having one less felony conviction is undeniably a potential benefit, such that the issue is not moot. The question of defendant's eligibility . . . is therefore not one that ' "involves only abstract or academic questions of law" ' and is not moot." (Id. at p. 204, quoting People v. Delong (2002) 101 Cal.App.4th 482, 486.)
Second, the Attorney General claims that reclassification of defendant's drug possession offense would violate the terms of the 2002 plea agreement under which he entered a no contest plea to felony possession of cocaine in exchange for dismissal of other charges and an agreed upon sentence. The Court of Appeal decision on which the Attorney General relies has since been reversed by our Supreme Court, which rejected this very argument. (People v. Harris (2016) 1 Cal.5th 984.) Given the intervening Supreme Court decision, we reject the argument as well.
Finally, the Attorney General maintains that defendant's 2004 conviction for second degree robbery renders him ineligible for Proposition 47 relief. As noted above, a defendant is ineligible for such relief if he or she has "one or more prior convictions" for an offense enumerated in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).) Among these disqualifying convictions is a "serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).) According to the Attorney General, an offense is "punishable in California by life imprisonment or death" where, as here, it is punishable by an indeterminate life term in a particular case—in this instance, by virtue of the application of the Three Strikes law and the ensuing indeterminate sentence of 25 years to life.
A defendant's eligibility for relief under Proposition 47 is determined as of the date of his or her request for relief. (People v. Montgomery (2016) 247 Cal.App.4th 1385, 1392; People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184.) Therefore, it was proper for the trial court to consider the effect, if any, of defendant's 2004 second degree robbery conviction on his eligibility to have his prior 2002 drug possession conviction redesignated as a misdemeanor.
Under section 667, subdivision (e)(2)(C)(iv), a defendant is ineligible for Proposition 47 relief if he or she has "suffered a prior serious and/or violent felony conviction . . . for any of the following felonies: [¶] (I) A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶] (VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶] (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death."
The Court of Appeal rejected this argument in Hernandez, supra, 10 Cal.App.5th 192, as do we. The Hernandez court began its analysis by examining the plain language of section 667, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, at p. 199.) It noted that "[t]he word 'offense' generally refers to a criminal act" and, hence, that "[b]y using the term 'offense punishable . . . by life imprisonment,' section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender's sentence. Since the 'offense' of robbery has an associated statutory punishment of 'imprisonment in the state prison for two, three, or five years' (§ 213, subd. (a)(2)), it is not an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII))." (Ibid.)
The court next considered the context of section 667, subdivision (e)(2)(C)(iv)(VIII), "find[ing] it significant that the statute uses the term 'felonies' to describe the disqualifying prior convictions. The use of the term 'felonies' strongly indicates that the determination of whether an offense qualifies as a 'super strike' depends on the nature of the offense itself, not the nature of the defendant or the effect of other prior convictions on the defendant's sentence." (Hernandez, supra, 10 Cal.App.5th at p. 200.) The court also found it "significant that section 667, subdivision (e)(2)(C)(iv)(VIII) is the final subclause in a list of specific crimes and categories of crimes" and that "[n]one of the other seven subclauses of section 667, subdivision (e)(2)(C)(iv) focuses on characteristics of the offender or the effect of other prior convictions on the offender's sentence." (Ibid.)
The Hernandez court then turned to the stated purpose of Proposition 36, noting that " 'murderers, rapists, and child molesters' " would still receive life sentences but that "nothing in the text of Proposition 36 suggests that the electorate intended to disqualify an offender from the sentencing changes due to the offender's conviction of a serious or violent offense that resulted in an indeterminate life sentence under the Three Strikes law." (Hernandez, supra, 10 Cal.App.5th at pp. 200-201.) The court also found that its construction of the phrase " 'offense punishable in California by life imprisonment or death' " (§ 667, subd. (e)(2)(C)(iv)(VIII)) was consistent with the construction of similar statutory phrases. (Hernandez, supra, at pp. 201-202, discussing People v. Turner (2005) 134 Cal.App.4th 1591 and People v. Thomas (1999) 21 Cal.4th 1122.) It distinguished two cases relied on by the Attorney General here, People v. Williams (2014) 227 Cal.App.4th 733 and People v. Jones (2009) 47 Cal.4th 566. (Hernandez, supra, at pp. 202-203.)
Section 667, subdivision (e)(2)(C)(iv), was enacted by Proposition 36, the Three Strikes Reform Act of 2012 (Hernandez, supra, 10 Cal.App.5th at pp. 197-198) and was later incorporated into Proposition 47 (§ 1170.18, subd. (i)). --------
Adopting the reasoning of Hernandez, we conclude that defendant was not disqualified from relief under Proposition 47 by virtue of the fact that his 2004 second robbery conviction was punished by an indeterminate life term under the Three Strikes law because robbery itself is not "[a] serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subdivision (e)(2)(C)(iv)(VIII).) Rather, second degree robbery is ordinarily punishable by a determinate term of "two, three, or five years." (§ 213, subd. (a)(2).) Unlike in Hernandez, defendant here has already completed his sentence for the conviction he seeks to have redesignated and, therefore, is entitled to have it redesignated as a misdemeanor without a determination of current dangerousness. (People v. Lewis, supra, 4 Cal.App.5th at p. 1092.)
DISPOSITION
The order denying defendant's application is reversed, and the matter is remanded to the trial court with directions to enter a new and different order granting the application and reclassifying defendant's 2002 felony conviction for possession of cocaine in Solano Court Case No. VCR163469 as a misdemeanor.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.