Filed 11/5/18 P. v. Cisneros CA2/6

Opinion on remand 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MANUEL CISNEROS, Defendant and Appellant.

2d Crim. No. B263694 (Super. Ct. No. 2012023176) (Ventura County) OPINION ON REMAND

Anthony Manuel Cisneros appeals from an order denying his petition to recall his felony sentence and strike a one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b).[1] The petition was filed pursuant to section 1170.18, which was added to the Penal Code by Proposition 47. The underlying offense for the prior prison term was a felony when appellant was sentenced. It was subsequently reduced to a misdemeanor pursuant to section 1170.18.

In an unpublished opinion filed on March 21, 2016, we affirmed. The California Supreme Court granted appellant’s petition for 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 People v. Buycks (2018) 5 Cal.5th 857 [(Buycks)].” We vacate our prior decision and reverse.

Procedural Background

In November 2013 appellant pleaded guilty to the felony offense of evading a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)) and the misdemeanor offense of hit-and-run driving. (Id., § 20002, subd. (a).) He admitted two prior prison term enhancements. (§ 667.5, subd. (b).) The felony underlying one of the enhancements was a 2009 conviction (case no. 2009024805) for possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a).

In March 2014, the trial court sentenced appellant to prison for four years: two years for evading a pursuing peace officer plus one year for each of the two prior prison term enhancements. For misdemeanor hit-and-run driving, the court imposed a concurrent term of 180 days in the county jail.

When appellant was sentenced in March 2014, a violation of Health and Safety Code section 11377, subdivision (a) was an alternate felony-misdemeanor, also known as a “wobbler.” The passage of Proposition 47 in November 2014 made the offense a straight misdemeanor unless the defendant has one or more prior convictions of specified serious felonies, which appellant does not have.

In March 2015, the trial court granted appellant’s petition to reduce to a misdemeanor his 2009 felony conviction for violating Health and Safety Code section 11377, subdivision (a). The petition was pursuant to section 1170.18, subdivisions (f) and (g), which apply when the petitioner has completed his sentence for a felony conviction that would have been a misdemeanor under Proposition 47.

In April 2015 appellant filed a petition requesting that his March 2014 felony sentence be recalled and “reduced from four years to three years because one of his prison priors is based on a conviction that has been reduced to a misdemeanor for all purposes.”[2] The trial court denied the petition.

Discussion

Pursuant to Buycks, “[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.” (Buycks, supra, 5 Cal.5^th at p. 879; see also id. at p. 888 [“as to nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, we conclude that Proposition 47 and the Estrada rule [In re Estrada (1965) 63 Cal.2d 740] authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure”].)

In a letter to this court dated September 28, 2018, the People concede: “Because appellant’s current case was not final at the time Proposition 47 was enacted, he is entitled to relief. In light of Buycks, supra, this Court should modify the judgment by striking one of appellant’s prior prison term enhancements.”

Disposition

Our prior decision is vacated. The order denying appellant’s petition under Proposition 47 to recall his sentence and strike one of the prior prison term enhancements (§ 667.5, subd. (b)) is reversed. The matter is remanded to the trial court with directions to strike the prior prison term enhancement based on his 2009 conviction (case no. 2009024805) for possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). This will reduce appellant’s aggregate prison sentence from four years to three years. The trial court shall prepare an amended abstract of judgment and send a certified copy to the Director of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.