Filed 12/21/18 In re Kappler CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
| In re
DAVID WAYNE KAPPLER,
On Habeas Corpus.
| B276251
(Los Angeles County Super. Ct. No. GA088890) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael D. Carter, Judge. Deemed petition for writ of habeas corpus and granted.
Brad K. Kaiserman, 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, Mary Sanchez and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
We reconsider this case on remand from the California Supreme Court, which vacated our prior decision and directed us to reconsider in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We deem the appeal a petition for a writ of habeas corpus, grant the petition, order the sentence vacated, and remand for resentencing.
PROCEDURAL BACKGROUND
In December 2013, appellant David Wayne Kappler was charged by information with one count of second degree commercial burglary. (Pen. Code, § 459.)[1] The information alleged that appellant had suffered one prior serious felony conviction (§ 1192.7), and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served four prior prison terms (§ 667.5, subd. (b)). On April 29, 2014, a jury convicted appellant of second degree commercial burglary. The trial court found true the prior strike allegation and three of the four prior prison term allegations (case Nos. FWV07936, FCH02895, and SWF012510).
On June 10, 2014, the court sentenced appellant to a term of six years in prison, which included one year each for two of his prior prison terms under section 667.5, subdivision (b).[2] The prior felony conviction underlying one of the section 667.5, subdivision (b) enhancements was a 2006 conviction for a violation of Health and Safety Code section 11377, possession of a controlled substance, case No. SWF012510. The court ordered the sentence stayed for his third prior prison term, a 1995 controlled substance conviction in case No. FWV07936.
“At the November 4, 2014 General Election, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reclassified as misdemeanors certain offenses that previously were felonies or ‘wobblers.’ It also added . . . section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors.”[3] (Buycks, supra, 5 Cal.5th at pp. 870–871, fns. omitted.)
On November 2, 2015, appellant’s conviction in case No. SWF012510 was reduced to a misdemeanor pursuant to Proposition 47.
On April 26, 2016, appellant filed a motion for resentencing in the instant case on the basis that the one-year enhancement imposed for the conviction in case No. SWF012510 could not be imposed because the felony conviction had been reduced to a misdemeanor and therefore no longer qualified for the section 667.5, subdivision (b) enhancement. The court denied the motion, and we affirmed the judgment. (People v. Kappler (July 7, 2017, B276251) [nonpub. opn.].) In light of Buycks, we now strike the enhancement.
DISCUSSION
Proposition 47 “created procedures to ameliorate convictions for those currently serving a sentence for a qualifying felony, as well as those who have completed their sentences for a qualifying felony, regardless of whether those judgments are final. [Citation.]” (Buycks, supra, 5 Cal.5th at p. 877.) Section 1170.18 provides, in pertinent part, that a “felony conviction that is recalled and resentenced . . . or designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).)
Buycks held that “the ‘misdemeanor for all purposes’ provision [of section 1170.18, subdivision (k)] operates prospectively—by having ameliorative effect on any new collateral consequence imposed after a successful Proposition 47 resentencing. However, [under the rule of In re Estrada (1965) 63 Cal.2d 740] because Proposition 47 is a measure designed to ameliorate punishment, the ‘misdemeanor for all purposes’ language also requires felony-based section 667.5 . . . enhancements to be retroactively stricken, but only with regard to judgments that were not final at the time the initiative took effect.”[4] (Buycks, supra, 5 Cal.5th at p. 876.) Respondent therefore agrees that appellant’s section 667.5, subdivision (b) enhancement in case No. SWF012510 must be stricken.[5]
“ecause 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, [Buycks] describe[d] other available procedural mechanisms to strike such enhancements.” (Buycks, supra, 5 Cal.5th at p. 892.) First, the court held that under the full resentencing rule, “at the time of resentencing of a Proposition 47 eligible felony conviction, the trial court must reevaluate the applicability of any enhancement . . . predicated on a felony conviction now reduced to a misdemeanor.”[b][6] (Id. at p. 894.) Second, the court concluded “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.” (Id. at p. 895.) Respondent does not object to the court treating the appeal as a petition for writ of habeas corpus, and we exercise our discretion to do so. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4.)
DISPOSITION
The petition for writ of habeas corpus is granted. The section 667.5, subdivision (b) enhancement based on case No. SWF012510 is stricken. The sentence is vacated and the matter is remanded for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J. COLLINS, J.
[1] Unspecified statutory references are to the Penal Code.
[2] Section 667.5, subdivision (b) provides, with certain exceptions, that: “where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, 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.”
[3] Appellant’s direct appeal of his conviction was pending when Proposition 47 was approved. He therefore abandoned his appeal, and we dismissed it on February 2, 2015.
[4] “A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired. [Citation.]” (Buycks, supra, 5 Cal.5th at p. 876, fn. 5.) Appellant’s judgment was not final when Proposition 47 took effect because it was pending on appeal.
[5] Although neither party has raised the issue, we further note that the trial court erroneously stayed the section 667.5, subdivision (b) enhancement for appellant’s 1995 controlled substance conviction in case No. FWV07936. “[T]he trial court may not stay the one-year enhancement [under section 667.5(b)], which is mandatory unless stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 354.)
[6] Under the full resentencing rule, “when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citation.]” (Buycks, supra, 5 Cal.5th at p. 893.)
