Filed 12/4/18 P. v. Long CA3

Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Daniel Kirk Long appeals from the trial court’s order granting his petition for resentencing pursuant to Penal Code section 1170.18[1] as to case No.

62-117731 and denying it as to case Nos. 62-125434 and 62-125470, and from the

court’s order denying his request for reconsideration of its ruling. He contends the trial court should have stricken prior prison term and on-bail enhancements in case Nos.

62-125434 and 62-125470 when resentencing him in case No. 62-117731 because the felonies underlying those enhancements previously had been reduced to misdemeanors pursuant to section 1170.18. Defendant also contends that section 1170.18 applies retroactively to those enhancements. We originally held the enhancements remained valid. Thereafter, the Supreme Court granted defendant’s petition for review and ultimately transferred the case with directions for this court to vacate our prior decision and to reconsider the cause in light of the recently decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks). Applying Buycks, we conclude the enhancements are now invalid and defendant is entitled to relief.

We reverse and remand for further proceedings.

BACKGROUND

We dispense with the facts of defendant’s crimes as they are unnecessary to resolve this appeal.

On June 6, 2013, defendant pleaded no contest to two counts of second degree commercial burglary (§ 459) with a maximum term of two years eight months in

state prison in case No. 62-117731. On May 13, 2014, in case Nos. 62-125434 and

62-125470, defendant pleaded no contest to two counts of second degree burglary of an automobile (§ 459), and admitted enhancements for three prior prison terms (§ 667.5, subd. (b)), and for being on bail (§ 12022.1) in case No. 62-117731. The felony underlying one of the prior prison term enhancements was a 2009 Placer County conviction for receiving stolen property. (§ 496, subd. (a).) Sentencing defendant in all three cases, the trial court imposed a stipulated split term of nine years, consisting of five years in county jail and four years of supervised release. Defendant’s commercial burglary conviction in case No. 62-117731 was designated the principal term.

Defendant subsequently filed a petition for resentencing as to the two commercial burglary convictions in case No. 62-117731. The People filed a response indicating no opposition to granting the petition. Defendant then filed a supplemental petition for resentencing on the on bail and one of the prior prison term enhancements in case Nos. 62-125434 and 62-125470. The People filed oppositions to the supplemental petition.[2]

The trial court reduced the two commercial burglaries in case No. 62-117731 to misdemeanor shoplifting (§ 459.5) convictions and denied the supplemental petition on the enhancements. Resentencing defendant, the court imposed an eight-year eight-month term consisting of four years eight months in county jail and four years of supervised release. Defendant subsequently filed a request for reconsideration of the ruling, which the trial court denied.

DISCUSSION

I

Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which was enacted on November 4, 2014, requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70.) Among the affected crimes are second degree commercial burglary and receiving stolen property, which, subject to certain exceptions not relevant here, are now misdemeanors when the amount in question does not exceed $950. (See §§ 496, 459.5.)

The Act also created section 1170.18, which provides in pertinent part: “A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).) “Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k) (“subdivision (k)”).)

Application of both the prior prison term and on-bail enhancements are contingent on felony convictions in a prior case. The prior prison term enhancement requires that defendant be convicted of a felony and have served a prison term for that conviction. (§ 667.5, subd. (b).) Under section 12022.1, “if a person charged with a felony (the primary offense) is released on bail or on his or her own recognizance and subsequently is arrested for committing another felony (the secondary offense) while released from custody on the primary offense, and if that person is convicted of both offenses, he or she ‘shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.’ ” (People v. Walker (2002) 29 Cal.4th 577, 582.) While not an element of the enhancement, a felony conviction for the primary offense is an essential prerequisite to its imposition. (In re Jovan B. (1993) 6 Cal.4th 801, 814; In re Ramey (1999) 70 Cal.App.4th 508, 512.) Reducing the prior felony underlying the enhancements pursuant to section 1170.18 therefore raises issues regarding their ongoing viability.

The Supreme Court held in Buycks that “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. In addition, finality aside, a defendant who successfully petitions for resentencing on a current Proposition 47 eligible conviction may, at the time of resentencing, challenge a felony-based enhancement contained in the same judgment because the prior felony conviction on which it was based has since been reduced to a misdemeanor.” (Buycks, supra, 5 Cal.5th at p. 879.) This applies to prior prison term and on bail enhancements; neither enhancement can be based on a felony reduced to a misdemeanor under Proposition 47. (See id. at pp. 888, 890.) While defendant’s conviction was final before Proposition 47 was enacted, his successful section 1170.18 resentencing petition as to the second degree burglary convictions meant, under Buycks, that he was entitled to resentencing on the entire case, and therefore, the prison prior and on bail enhancements are no longer valid. We shall reverse the order denying the petition as to those enhancements and remand for additional proceedings consistent with this opinion.

DISPOSITION

The order denying defendant’s section 1170.18 petition as to the on bail and prior prison term enhancements is reversed and the matter is remanded for additional proceedings consistent with this opinion.

HULL , Acting P. J.

We concur:

MAURO , J.

MURRAY , J.