Filed 11/5/18 In re Hernandez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re JUSTIN HERNANDEZ
on
Habeas Corpus.
| D069664
(San Bernardino County Super. Ct. No. FSB1301847) |
ORIGINAL PROCEEDING in habeas corpus. Relief granted.
Eric R. Larson, by appointment of the Court of Appeal, for petitioner.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for respondent.
Justin Hernandez filed a petition for writ of habeas corpus challenging a one-year sentence enhancement for service of a prior prison term for a conviction of a felony that was reclassified as a misdemeanor while his appeal of the judgment imposing the enhancement was pending. We initially denied the petition, but the Supreme Court of California granted review and transferred the matter back to us for reconsideration after it decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We vacated our denial order and ordered the People to show cause why Hernandez should not be granted relief. The People have conceded the challenged enhancement must be stricken under Buycks. We agree and order the enhancement stricken.
BACKGROUND
A jury found Hernandez guilty of robbery (Pen. Code, § 211; undesignated section references are to this Code), conspiracy to commit robbery (§§ 182, subd. (a)(1), 211), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found Hernandez personally used a firearm during the robbery (§ 12022.53, subd. (b)), and the superior court found he had a prior conviction that constituted a strike (§ 667, subds. (b)-(i)) and served four prior prison terms (§ 667.5, subd. (b)). The court sentenced Hernandez to prison for 24 years, which included four consecutive terms of one year each for his prior service of four prison terms. (§ 667.5, subd. (b).) Hernandez filed a notice of appeal from the judgment of conviction. (§ 1237, subd. (a).)
While his appeal was pending, Hernandez successfully petitioned the superior court under Proposition 47 (§ 1170.18, subds. (f), (g)) to reclassify as a misdemeanor a felony conviction that he suffered in 2003 in San Bernardino County Superior Court Case No. FVI016568 and for which he served a prison term. Hernandez then petitioned this court for a writ of habeas corpus (§ 1473, subd. (a)), claiming his prison sentence had to be reduced by one year because the reclassified conviction no longer supported the prior prison term enhancement based on that conviction. We denied the petition, on the ground the reclassification operated prospectively only.
The Supreme Court of California granted Hernandez's petition for review and transferred the matter back to us with directions to vacate our order and to reconsider the matter in light of Buycks, supra, 5 Cal.5th 857. The Buycks court held that "as to nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, . . . Proposition 47 and the Estrada rule[[1]] authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure." (Buycks, at p. 888.) We vacated our decision and ordered the People to show cause why we should not grant the relief Hernandez sought.
In their return, the People concede that under Buycks the prior prison term enhancement challenged by Hernandez should be stricken. In his traverse, Hernandez again requests the enhancement be stricken, and for the first time asks for full resentencing, so that the superior court can exercise its recently granted discretion to strike the 10-year firearm enhancement. (See § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.)
DISCUSSION
We agree with the parties that under Buycks, supra, 5 Cal.5th 857, the reclassification of Hernandez's 2003 felony conviction as a misdemeanor under Proposition 47 requires striking the prior prison term enhancement based on that conviction. Since the judgment containing that enhancement was pending on appeal when the conviction underlying the enhancement was reclassified, his right to have the enhancement stricken may be enforced by petition for writ of habeas corpus. (Buycks, at p. 894.) Hernandez, however, is not entitled to have the entire sentence vacated and to be resentenced, as requested in his traverse. He did not ask for that relief in his petition, and "a habeas corpus petitioner may not raise additional issues in the traverse." (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235; accord, In re Lawley (2008) 42 Cal.4th 1231, 1248 [" 'attempts to introduce additional claims . . . in a traverse do not expand the scope of the proceeding[,] which is limited to the claims [that] the court initially determined stated a prima facie case for relief' "].)
DISPOSITION
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
[1] In re Estrada (1965) 63 Cal.2d 740 established the following rule of limited retroactivity for changes in criminal law: A change mitigating punishment "can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Under Estrada, the reduction of a felony conviction to a misdemeanor conviction pursuant to Proposition 47 "can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014." (Buycks, supra, 5 Cal.5th at p. 883.)
