Filed 11/20/18 P. v. Derritt CA4/2
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
DEANDRE LAMONT DERRITT,
Defendant and Appellant.
|
E064152
(Super.Ct.No. FWV1001109)
OPINION
|
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Reversed with directions.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Deandre Lamont Derritt appeals a postjudgment order denying his petition to vacate a two-year on-bail enhancement after the underlying prior felony conviction, a 2010 conviction for felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), was reduced to a misdemeanor pursuant to Proposition 47. (Pen. Code,[1] § 1170.18, subds. (f) & (g).) In a previous nonpublished opinion, we affirmed the trial court’s order. (People v. Derritt (Aug. 26, 2016, E064152) [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Buycks (2018) 5 Ca1.5th 857 (Buycks). For the reasons stated post, we reverse the postjudgment order and remand with directions to strike the two-year on-bail enhancement and recalculate the aggregate sentence.
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
In 2010, defendant was convicted of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); primary offense)[2] (case No. FWV903128; 2010 case). While released on bail for the primary offense, he was arrested for possession of a firearm by a felon and possession of ammunition (Pen. Code, § 12021, subd. (a) & former § 12316, subd. (b); secondary offenses) (case No. FWV1001109; 2012 case). On
June 15, 2012, a jury convicted him of his 2012 secondary offenses, finding that he had committed them while released on bail in his 2010 case (Pen. Code, § 12022.1), and that he had suffered six prior “strike” convictions (Pen. Code, § 1170.12, subds. (a)-(d)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)).[3] On September 6, 2012, the trial court sentenced defendant to prison for a term of 13 years four months. (People v. Derritt (Nov. 26, 2013, E057057) [nonpub. opn.].)
On November 26, 2013, this court ordered that defendant’s sentence in the 2012 case be altered by staying a consecutive term of one year four months for the possession of ammunition conviction. (People v. Derritt, supra, E057057.) We noted that “[t]ypically, when a sentence is reduced by such a significant amount we would remand the matter back to the trial court for resentencing, in order to protect the People’s interest in having the appropriate sentence pronounced. (People v. Burns (1984) 158 Cal.App.3d 1178, 1183.) However, in this case, the trial court has already imposed the upper prison terms for the firearm conviction and associated bail enhancement, so it appears the maximum sentence has been imposed.” (People v. Derritt, supra, E057057.) Thus, we modified defendant’s sentence in our disposition and directed the trial court to issue an amended abstract of judgment reflecting the modified sentence and forward it to the appropriate agencies. In all other respects, we affirmed the judgment, and the remittitur issued on January 29, 2014. (People v. Derritt, supra, E057057.)
On December 5, 2014, defendant successfully petitioned under Proposition 47 to have his 2010 primary offense designated a misdemeanor under section 1170.18.
On February 6, 2015, an amended abstract of judgment was filed in the 2012 case reflecting a new sentence of 12 years, following the stay of a consecutive one-year-four-month sentence on the possession of ammunition conviction pursuant to section 654.[4]
On July 2, 2015, defendant filed another petition under Proposition 47, seeking to dismiss the on-bail enhancement (§ 12022.1) in the 2012 case (case No. FWV1001109) because the 2010 primary offense upon which it was based was now a misdemeanor. On July 21, 2015, the trial court denied the petition. Defendant filed a notice of appeal on August 3, 2015.
On August 26, 2016, we affirmed the trial court’s ruling. (People v. Derritt, supra, E064152.) Defendant sought review in the California Supreme Court. In an order filed October 10, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Buycks, supra, 5 Cal.5th 857. On October 11, 2018, this court issued an order vacating our previous opinion filed on August 26, 2016, and inviting the parties to submit supplemental briefing. Both the People and defendant did so.
II. DISCUSSION
In Buycks, the Supreme Court held that “Proposition 47’s mandate that the resentenced or redesignated offense ‘be considered a misdemeanor for all purposes’ (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors. . . . nder some circumstances such challenges may be brought in a resentencing procedure under section 1170.18; they may also be brought on petition for writ of habeas corpus, in reliance on the retroactivity principle of In re Estrada (1965) 63 Cal.2d 740 . . . . In the latter instance, relief is limited to judgments that were not final at the time the initiative took effect on November 5, 2014.” (Buycks, supra, 5 Cal.5th at pp. 871-872.)
Relying on the language in Buycks, defendant contends that the on-bail enhancement that was imposed pursuant to section 12022.1 must be stayed because his case was not final when the primary offense became a “misdemeanor for all purposes” pursuant to section 1170.18, subdivision (k). We agree.
Although this court ordered defendant’s September 6, 2012 sentence modified via our November 26, 2013 opinion in case No. E057057, the trial court took no action to do so until February 6, 2015, when an amended abstract of judgment was filed.[5] Thus, defendant’s judgment was not final when Proposition 47 went into effect on November 5, 2014, or when defendant’s petition for the redesignation of his 2010 primary offense to a misdemeanor was granted on December 5, 2014. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987 [“[I]n a criminal case, judgment is synonymous with the imposition of [a] sentence.”]; People v. Spencer (1969) 71 Cal.2d 933, 934, fn.1 [“The appeal from the ‘sentence’ is the same as the appeal from the judgment since in a criminal action the terms are synonymous.”]; Burton v. Stewart (2007) 549 U.S. 147, 156 [“‘Final judgment in a criminal case means sentence. The sentence is the judgment.’”]; People v. Vieira (2005) 35 Cal.4th 264, 306 [“‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]’”]; Buycks, supra, 5 Cal.5th at p. 876, fn. 5 [“A judgment becomes final when the availability of an appeal and the time for filing a petition or certiorari with the United States Supreme Court have expired,” citing People v. Kemp (1974) 10 Cal.3d 611, 614].) Because defendant’s judgment was not final when Proposition 47 went into effect, In re Estrada (1965) 63 Cal.2d 740 applies to strike the on-bail enhancement based on defendant’s now reduced 2010 felony. Defendant is entitled to have the on-bail enhancement stricken from his 2012 sentence.
Assuming defendant should have filed a petition for a writ of habeas corpus because his 2012 secondary offenses are eligible for resentencing,[6] we exercise our discretion to treat defendant’s appeal as a petition for writ of habeas corpus, in light of the clear grounds for striking his on-bail enhancement and in the interest of judicial economy and decide the case on its merits. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal as petition for writ of habeas corpus].)
III. DISPOSITION
The postjudgment order denying defendant’s Proposition 47 petition is reversed. On remand, the trial court shall strike the two-year on-bail enhancement imposed pursuant to section 12022.1 in count 1 and imposed, but stayed, in count 2 and recalculate the aggregate sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
[u]RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] “Section 12022.1 defines the felony for which the defendant had been released from custody on bail or on own recognizance as the ‘primary offense,’ and the new felony committed while on release as the ‘secondary offense.’ (§ 12022.1, subd. (a).)” (Buycks, supra, 5 Cal.5th at p. 890.)
[3] We grant defendant’s request to take judicial notice of the record in case No. E057057, as well as the 2010 primary offense case (case No. FWV903128), which was the basis for the on-bail enhancement. (Evid. Code, §§ 451, subd. (a); 452, subd. (d).)
[4] In reviewing the clerk’s transcript in this appeal, it appears the September 6, 2012 minute order was changed on “2/04/15” (see the upper left corner of pp. 2-3 of the minute order), which prompted the amended abstract filed on February 6, 2015.
[5] See footnote 4, ante.
[6] Proposition 47 applies to certain drug possession offenses. (§ 1170.18, subd. (a).)
