Filed 11/20/18 P. v. Hall CA2/6

Opinion on transfer from the 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. ERIC MONTIEL HALL, Defendant and Appellant.

2d Crim. No. (Super. Ct. Nos. 2012031834, 2012024033) (Ventura County) OPINION ON REMAND

In these two consolidated cases, Eric Montiel Hall appeals from orders resentencing him in case no. 2012024033 (hereafter case no. 033) and denying his petition for resentencing in case no. 2012031834 (hereafter case no. 834). Appellant filed petitions for resentencing pursuant to Penal Code section 1170.18, enacted by Proposition 47 on November 5, 2014.[1] As to case no. 834, appellant claims that the trial court erroneously refused to strike prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b). The underlying offenses for the prior prison terms were felonies when appellant was sentenced. They were subsequently reduced to misdemeanors pursuant to section 1170.18.

In an unpublished opinion filed on March 21, 2016, we affirmed in case no. 834 and dismissed as moot the appeal in case no. 033. The California Supreme Court granted appellant’s petition for review. On September 19, 2018, the Supreme Court directed us 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. Based on Buycks, we reverse in case no. 834. We dismiss as moot the appeal in case no. 033.

Procedural Background

In case no. 834, a jury found appellant guilty of possessing methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and transporting methamphetamine (count 2; id., § 11379, subd. (a).) Appellant admitted five prior prison term enhancements. (§ 667.5, subd. (b).) In October 2013 he was sentenced to an aggregate term of nine years: the upper term of four years on count 2, a concurrent two-year middle term on count 1, plus a consecutive one-year term for each of the five prior prison term enhancements. The trial court ordered appellant to serve the first six years of his sentence in county jail and the remaining three years on mandatory supervision. (§ 1170, subd. (h)(5)(B).)

In case no. 033, appellant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted the same five prior prison term enhancements that he had admitted in case no. 834. On the same day that appellant was sentenced in case no. 834, in case no. 033 he was sentenced to county jail for two years, to be served concurrently with the sentence imposed in case no. 834. In case no. 033 the court stayed the five prior-prison-term enhancements pursuant to section 654.

When appellant was sentenced for possession of cocaine in case no. 033, the offense was a felony. The passage of Proposition 47 made the offense a misdemeanor unless the defendant has one or more prior convictions of specified serious felonies, which appellant does not have.

Appellant prepared petitions requesting resentencing in case nos. 834 and 033 pursuant to section 1170.18. In December 2014 the trial court conducted a hearing on the petitions. In case no. 033 the trial court granted the petition and resentenced appellant to one year in county jail for misdemeanor possession of cocaine.

In case no. 834 the felony offenses of which appellant had been convicted - possessing methamphetamine for sale and transporting methamphetamine - were not eligible for reduction to misdemeanors because they remained felonies under Proposition 47. Appellant argued that the court should nevertheless strike prior prison term enhancements based on felony convictions that would have been misdemeanors if Proposition 47 had been in effect at the time of the commission of the offenses. The trial court denied the petition.

Appellant filed separate notices of appeal in case nos. 033 and 834. The cases were consolidated on appeal.

After filing the notices of appeal, appellant petitioned the trial court to designate as misdemeanors three prior felony convictions underlying two prior prison term enhancements in case no. 834. The petitions were based on section 1170.18, subdivisions (f) and (g), which apply to “[a] person who has completed his or her sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense.” (Id., subd. (f).) The trial court granted the petitions.

The two prior prison term enhancements with underlying convictions reduced to misdemeanors are as follows: (1) Special Allegation 1 in the information, with underlying 2010 convictions of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) in case no. 2010014747 and petty theft with a prior (§ 666, subd. (a)) in case no. 2010045724; and (2) Special Allegation 4 in the information, with an underlying 1995 conviction of petty theft with a prior in case no. CR37299.

The information’s Special Allegation 3 was a prior prison term enhancement with an underlying 2001 conviction of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) in case no. 20000103836. Appellant did not petition to have this prior conviction designated a misdemeanor under Proposition 47.

In Case No. 033, We Dismiss the Appeal as Moot

In his opening brief, appellant states: “The focus of this brief is on the ruling in case number [834], since the reduction of the other case [case no. 033] to a misdemeanor, and the completion of probation, has mooted any issue related to it.” Accordingly, in case no. 033 we dismiss the appeal as moot.

Case No. 834

Pursuant to Buycks, in case no. 834 the trial court may strike only the two prior prison term enhancements (Special Allegations 1 and 4) based on felonies previously reduced to misdemeanors under Proposition 47. “[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.”[2] (Buycks, supra, 5 Cal.5th 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”].) The judgment containing the enhancements was not final when Proposition 47 took effect on November 5, 2014. In an unpublished opinion, we affirmed the judgment in May 2015. (People v. Hall (May 12, 2015, B252260).)

In a letter dated October 3, 2018, the Attorney General concludes: “Appellant’s sentence in case number 2012031834 should be reduced by striking the two section 667.5, subdivision (b) enhancements based on the felony convictions that were reduced to misdemeanors pursuant to Proposition 47.” In a letter dated October 22, 2018, appellant “agrees with the Attorney General’s conclusion.”

Disposition

Our prior decision is vacated. In case no. 2012024033, the appeal is dismissed as moot. In case no. 2012031834, the trial court’s order denying appellant’s petition under Proposition 47 to recall his sentence and strike prior prison term enhancements (§ 667.5, subd. (b)) is reversed to the extent that the court did not strike the following two prior prison term enhancements: (1) Special Allegation 1 in the information, i.e., prior prison term with underlying 2010 convictions of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) in case no. 2010014747 and petty theft with a prior (§ 666, subd. (a)) in case no. 2010045724; and (2) Special Allegation 4 in the information, i.e., prior prison term with an underlying 1995 conviction of petty theft with a prior in case no. CR37299. In all other respects, the order denying the petition in case no. 2012031834 is affirmed. The matter is remanded to the trial court with directions to reduce appellant’s sentence by striking the two prior prison term enhancements.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.