Filed 11/13/18 In re Edwards CA2/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

PETITION for writ of habeas corpus, Superior Court of Los Angeles County, Christopher G. Estes, Judge. Petition granted.

Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Rhett E. Edwards was convicted of transportation of and possession for sale of a controlled substance, methamphetamine, and false personation. Edwards admitted serving prison terms for prior felony offenses within the meaning of Penal Code section 667.5, subdivision (b),[1] and consequently his sentence was enhanced by seven one-year terms. After passage of Proposition 47, the Safe Neighborhoods and Schools Act, Edwards successfully petitioned to have four of those seven prior felonies designated as misdemeanors. He then moved in the trial court for resentencing in the instant matter, arguing that four of the section 667.5, subdivision (b) enhancements were invalid because the designation of the prior felonies as misdemeanors negated an element of the section 667.5 enhancements. The trial court denied his request, and we affirmed the trial court’s order. Our California Supreme Court granted review and has transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We deem Edwards’s appeal a petition for a writ of habeas corpus, grant his petition, order his sentence vacated, and remand for resentencing.

PROCEDURAL BACKGROUND

A jury convicted Edwards of transportation of a controlled substance, methamphetamine (Health & Saf. Code, § 11379, subd. (a)); possession for sale of a controlled substance, methamphetamine (Health & Saf. Code, § 11378); and false personation (§ 529, subd. (a)(3)). Edwards admitted suffering one prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (c)) and serving prison terms for 10 prior felony offenses within the meaning of section 667.5, subdivision (b). On January 22, 2014, the trial court sentenced Edwards to 14 years in county jail, consisting of the upper term of four years on the transportation offense, a three-year Health and Safety Code section 11370.2, subdivision (c) enhancement, and seven one-year prior prison term enhancements pursuant to section § 667.5, subd. (b).[2] Edwards timely appealed the judgment.

On November 4, 2014, while Edwards’s appeal was pending, the voters enacted Proposition 47, which went into effect the following day. (Buycks, supra, 5 Cal.5th at pp. 870–871, 883.) Proposition 47 amended portions of the Penal and Health and Safety Codes to reclassify as misdemeanors certain drug and theft offenses that previously were felonies or “wobblers,”[3] unless committed by ineligible offenders. (Buycks, at pp. 871, 877; People v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47 also enacted section 1170.18, which created procedures whereby eligible defendants who are currently serving sentences for felony convictions of one of the enumerated crimes may petition for resentencing, or if they have completed their sentences, to have such convictions designated misdemeanors. (Buycks, at p. 871; People v. Morales, at p. 404.)

On March 25, 2015, the trial court granted Edwards’s application, pursuant to Proposition 47, to designate as misdemeanors four of the seven prior felony convictions that served as the basis for the section 667.5, subdivision (b) enhancements in the instant matter.

On April 1, 2015, Edwards moved for recall of his sentence and resentencing in the instant matter. He argued that because four of the prior felony convictions underlying the section 667.5, subdivision (b) enhancements had been reduced to misdemeanors, those priors could no longer serve as predicate offenses supporting imposition of four of the enhancements. On May 7, 2015, the trial court denied Edwards’s request, concluding that Proposition 47 did not “unravel[ ] the underlying [section] 667.5(b) punishment.”

On May 8, 2015, Edwards filed a notice of appeal from the trial court’s order denying his resentencing request.

In October 2015, we affirmed the judgment in Edwards’s direct appeal. (People v. Edwards (Oct. 16, 2015, B254610, nonpub. opn.) In July 2016, we affirmed the trial court’s order denying Edwards’s request for recall and resentencing. (People v. Edwards (July 25, 2016, B263931, nonpub. opn.)[4]

Edwards petitioned for review of our decision in case no. B263931, and our Supreme Court granted review. On September 19, 2018, the Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Buycks. In accordance with that order, we vacate our July 25, 2016 opinion and reconsider the matter.

DISCUSSION

1. Because four of Edwards’s prior felony convictions have been designated misdemeanors, they no longer support imposition of section 667.5, subdivision (b) enhancements

Edwards contends that under Buycks, his sentence must be vacated and remanded for resentencing because a section 667.5, subdivision (b) enhancement cannot be based upon an underlying conviction that has been reduced to a misdemeanor pursuant to Proposition 47. The People agree, and so do we.

As noted, Proposition 47 enacted section 1170.18, which created two procedures by which a person may seek to have a prior felony conviction classified as a misdemeanor. (Buycks, supra, 5 Cal.5th at pp. 871, 876, fn. 4.) Section 1170.18, subdivisions (a) and (b) provide that persons currently serving felony sentences for Proposition 47 eligible offenses may petition to have their sentences recalled and be resentenced to a misdemeanor. (Buycks, at p. 876, fn. 4.) Persons who have already completed their felony sentences for such offenses may apply to have them designated as misdemeanors. (§ 1170.18, subds. (f), (g); Buycks, at p. 876, fn. 4; People v. Abdallah (2016) 246 Cal.App.4th 736, 743–744.) Subdivision (k) of section 1170.18 states that 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 . . . .”

Buycks considered Proposition 47’s effect on felony-based enhancements in resentencing proceedings under section 1170.18, including “whether Proposition 47 requires the dismissal of a one-year sentencing enhancement for having served a prior prison term (§ 667.5, subd. (b)) when the felony underlying that prior prison term has been reduced to a misdemeanor under section 1170.18.” (Buycks, supra, 5 Cal.5th at p. 871.) The court concluded that in light of section 1170.18’s “misdemeanor for all purposes” language and Proposition 47’s overall intent to ameliorate punishment, the retroactivity rule of In re Estrada (1965) 63 Cal.2d 740, applied. (Buycks, at pp. 881, 883.) Under Estrada, a court presumes that newly enacted legislation mitigating criminal punishment reflects a determination that the former penalty was too severe and the ameliorative change was intended to apply to all nonfinal judgments. (Buycks, at p. 881.) Thus, Buycks concluded, “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.” (Id. at p. 879.)

Specifically in regard to section 667.5, subdivision (b) enhancements, Buycks concluded: “as 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, 5 Cal.5th at p. 888.) “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.” (People v. Tenner (1993) 6 Cal.4th 559, 563; Buycks, at p. 889.) Therefore, “the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. 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 recalled and resentenced . . . or 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. [¶] Consequently, section 1170.18, subdivision (k) can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure.” (Buycks, at pp. 889–890, fn. omitted.)

The judgment on Edwards’s current offenses, in which the section 667.5, subdivision (b) enhancements were imposed, was not final when Proposition 47 went into effect in November 2014. (See Buycks, supra, 5 Cal.5th at p. 876, fn. 5.) Accordingly, Buycks requires that Edwards’s sentence be vacated, and precludes imposition of the four section 667.5, subdivision (b) enhancements based on offenses that have been designated misdemeanors. (Buycks, at p. 889.)

2. Edwards’s appeal should be deemed a petition for a writ of habeas corpus

As noted, Proposition 47 expressly provides procedural mechanisms for (1) resentencing for persons currently serving sentences for felonies that are now misdemeanors under Proposition 47 (§ 1170.18, subds. (a), (b)); and (2) designation of such felonies as misdemeanors for persons who have already completed their sentences (§ 1170.18, subds. (f), (g).) Buycks explained that in addition, when a court considers a Proposition 47 petition for resentencing of a conviction, it should at that time consider a challenge to a prison prior enhancement if the underlying felony has been reduced to a misdemeanor. (Buycks, supra, 5 Cal.5th at pp. 893–894.) But, the court observed, “Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected by the reduction of a conviction to a misdemeanor in a separate judgment,” the circumstance present here. (Buycks, supra, 5 Cal.5th at p. 892.)

Buycks resolved this dilemma by reasoning that, under section 1170.18, subdivision (k), a petitioner may seek relief via a petition for a writ of habeas corpus. (Buycks, supra, 5 Cal.5th at p. 895.) The court explained: “the collateral consequences of Proposition 47’s mandate to have the redesignated offense ‘be considered a misdemeanor for all purposes’ can properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect. [¶] The . . . ‘misdemeanor for all purposes’ language of section 1170.18, subdivision (k), is an ameliorative provision distinct from the ameliorative provisions of subdivisions (a) and (f) of the same statute which provide express mechanisms for reducing felony convictions to misdemeanors. . . . A petition for habeas corpus seeking to vacate a section 667.5 prior prison term enhancement on the ground that it is based on a prior felony theft conviction that has since been reduced to a misdemeanor . . . would be invoking Estrada not to establish the initiative’s ameliorative effect on the prior theft conviction, but to show that section 1170.18, subdivision (k) has some retroactive effect to the extent permitted under Estrada.” (Id. at p. 895.) Noting that habeas petitions have been used to afford relief where a collateral attack on enhancements is concerned, Buycks held a habeas petition is the appropriate avenue for a defendant to seek relief under such circumstances. (Id. at pp. 895–896.)

Here, Edwards is seeking such relief, and accordingly a writ of habeas corpus is the proper vehicle to obtain relief. In the superior court, Edwards filed a motion for resentencing, rather than a habeas petition, and he has filed a notice of appeal, rather than a habeas petition, in this court. Given that Edwards sought relief long before Buycks clarified the proper procedure, his failure to proceed by means of a writ is understandable. Requiring Edwards to file a writ petition at this juncture would be a waste of judicial resources. We therefore treat Edwards’s appeal as a petition for writ of habeas corpus.[5] (See People v. Garrett (1998) 67 Cal.App.4th 1419, 1423.)

We grant Edwards’s petition. We order his sentence vacated and the matter remanded for resentencing. On remand, “ ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citations].” (Buycks, supra, 5 Cal.5th at p. 893; People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) Section 667.5, subdivision (b) enhancements may not be imposed based upon felonies which have been designated as misdemeanors.

DISPOSITION

Let a writ of habeas corpus issue directing the trial court to vacate Edwards’s sentence in Los Angeles Superior Court case no. MA060075, and to resentence Edwards anew. Upon resentencing, the section 667.5, subdivision (b) enhancements based upon the underlying felonies that have been designated as misdemeanors may not be reimposed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P.J.

We concur:

LAVIN, J.

DHANIDINA, J.