Filed 3/14/18 P. v. Schmitt CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SCHMITT,

Defendant and Appellant.
D071686



(Super. Ct. No. SCE339936)

APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed.

Lewis A. Wenzell, 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, Steven T. Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Michael Schmitt was convicted of possession of a controlled substance in 2003. In 2015, Schmitt was convicted of another felony and sentenced to prison. Schmitt's sentence included a one-year enhancement term (Pen. Code, § 667.5, subd. (b)), based on Schmitt's 2003 felony conviction.
In 2017, Schmitt successfully petitioned to have his 2003 felony conviction reduced to a misdemeanor pursuant to Proposition 47, which the electorate approved in 2014.
Schmitt contends that he is entitled to additional relief, based on the reduction of his 2003 felony to a misdemeanor. According to Schmitt, the court should "delete" his one-year prior prison term enhancement in the current case because the 2003 conviction supporting the enhancement is no longer a felony conviction.
We conclude that Proposition 47 does not apply retroactively to previously imposed section 667.5, subdivision (b) sentence enhancements. The language of Proposition 47 does not indicate that it is intended to apply retroactively in this way. There is no evidence that voters intended the collateral retroactive effect that Schmitt requests, and there is a statutory presumption that amendments to the Penal Code operate prospectively. The fact that Proposition 47 was enacted prior to Schmitt being sentenced is irrelevant. Proposition 47 does not, itself, reduce a former felony conviction such as Schmitt's to a misdemeanor; rather, it provides for a process by which a defendant may obtain such a reduction. Schmitt's 2003 conviction was not reduced to a misdemeanor until after he was sentenced and his sentence became final. Thus, at the time of his sentencing, the conviction at issue was a felony conviction and the imposition of an enhancement for a prison prior was therefore lawful.
Accordingly, we affirm the trial court's judgment.
II.
PROCEDURAL BACKGROUND
On August 3, 2015, Schmitt pled guilty to the unlawful use of personal information of another (§ 530.5, subd. (a)), forgery (§ 476), and receiving stolen property (§ 496, subd. (a)), based on conduct in which he engaged in April 2014. Schmitt admitted that he had suffered a prior strike conviction (§ 667, subds. (b)–(i)), and two prison priors (§ 667.5, subd. (b)) based on a 2003 conviction for a violation of Health and Safety Code section 11350, subdivision (a) (case No. SCD172788) and a 2007 conviction (case No. SCD205676).
The trial court suspended imposition of sentence and placed Schmitt on formal probation for a period of three years, with 365 days in local custody.
The trial court revoked and reinstated Schmitt's probation on a number of occasions. On September 9, 2016, the court revoked and reinstated probation, and imposed the original sentence of four years in prison. The court suspended execution of the prison sentence pending successful completion of probation. Schmitt did not appeal.
On December 7, 2016, Schmitt's probation was again revoked, and the stay of execution of the prison sentence was lifted.
On January 13, 2017, Schmitt filed a notice of appeal from the court's December 7, 2016 order denying probation.
On January 24, 2017, the trial court reclassified Schmitt's 2003 conviction in case No. SCD172788 as a misdemeanor.
On March 24, 2017, Schmitt, proceeding pro se, filed a petition for writ of habeas corpus (In re Michael Schmitt on Habeas Corpus, D071930), which we ordered to be considered with this appeal.
III.
DISCUSSION
Schmitt contends that because his 2003 felony conviction for drug possession was reduced to a misdemeanor in 2017 (after the trial court entered judgment in his current case), the one-year enhancement imposed by the court pursuant to section 667.5, subdivision (b), which was based on Schmitt's 2003 conviction, must be stricken. According to Schmitt, the sentence imposed for the section 667.5 subdivision (b) enhancement is an unauthorized sentence and "should be corrected."
Section 1170.18, enacted as part of Proposition 47, provides in pertinent part:
"(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.

"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."

Also relevant here is subdivision (k) of section 1170.18, which provides, in pertinent part:
"A felony conviction that is . . . 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 a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."

If a person has completed a felony sentence for an offense eligible for reduction to a misdemeanor under Proposition 47, he or she must file an application to have the felony reduced to a misdemeanor. (People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) If the application satisfies the criteria provided in section 1170.18, subdivision (f), the court must reduce the felony to a misdemeanor. (Shabazz, at pp. 310–311.)
Imposition of a one-year sentence enhancement under section 667.5, subdivision (b) "requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Schmitt argues that his 2003 prior conviction is "now formally a misdemeanor" and therefore, "cannot support a prior prison enhancement." However, his 2003 prior conviction was not "formally a misdemeanor" at the time Schmitt's sentence for the prior prison term enhancement was imposed. Nor was the prior conviction "formally a misdemeanor" at the time Schmitt's sentence became final. In fact, Schmitt committed the felonies to which the prior prison term enhancement is attached in 2014, was convicted of those offenses in 2015, and was sentenced for the prior prison term enhancement in 2016—all before his 2003 conviction in case No. SCD172788 was reduced to a misdemeanor on January 24, 2017. At best, Schmitt's prison sentence became final for purposes of challenging the imposition of the enhancement 60 days after September 9, 2016, which is when the court imposed and suspended Schmitt's four-year prison sentence. (See, e.g., People v. Martinez (2015) 240 Cal.App.4th 1006, 1011 ["An order imposing sentence, the execution of which is suspended and probation granted, is an appealable order."].)
Thus, at the time the court sentenced Schmitt and imposed the term for the relevant prison prior enhancement, and at the time that sentence became final, Schmitt had, in fact, been convicted of a felony for which he served a prison sentence. In fact, at the time the prison prior enhancement became final, Schmitt met all four of the necessary requirements for the imposition of an enhancement pursuant to section 667.5, subdivision (b).
Any reliance on the January 2017 reduction of Schmitt's felony conviction to a misdemeanor to vitiate the prior prison term enhancement that the trial court imposed would constitute a retroactive application of Proposition 47. Cases involving the question whether a prior prison term enhancement must be stricken if, after the judgment has become final, the prior conviction on which the enhancement was based is reduced from a felony to a misdemeanor pursuant to section 1170.18 and similar issues are currently pending before the Supreme Court. (See, e.g., People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900 (Valenzuela); People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 26, 2016, S233539; People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People v. Evans (2016) 6 Cal.App.5th 894, review granted Feb. 22, 2017, S239635; People v. Johnson (2017) 8 Cal.App.5th 111, review granted Apr. 12, 2017, S240509; In re Diaz (2017) 8 Cal.App.5th 812, review granted May 10, 2017, S240888.) As we explain below, we agree with these courts that Proposition 47's language, including the "misdemeanor for all purposes" designation in subdivision (k) of section 1170.18, does not operate to retroactively invalidate a prior sentence enhancement that was validly imposed under section 667.5, subdivision (b).
Section 3 specifies that no part of the Penal Code "is retroactive, unless expressly so declared." This language "erects a strong presumption of prospective operation, codifying the principle that, 'in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature [or electorate] . . . must have intended a retroactive application.' [Citations.] Accordingly, ' "a statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective." ' [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 324, italics added.) Proposition 47 does not contain a provision declaring its provisions to be automatically retroactive. Rather, it provides procedures making its provisions available retroactively to certain offenders who petition for resentencing or redesignation of their convictions. (§ 1170.18.) Thus, by its express terms, Proposition 47 has retroactive effect only to the extent that section 1170.18 provides a procedure to petition for reclassification or resentencing.
Schmitt served a prison term for the prior conviction at a time when the offense was a felony. It is a defendant's having committed a felony offense that resulted in a term of imprisonment, coupled with that defendant's continuing recidivism, that section 667.5, subdivision (b) punishes. Absent a clear statement of the electorate's intent to the contrary, we conclude that, because Schmitt served a prison term for his conviction in 2003 at a time when the offense of conviction was a felony, and because his current sentence enhancement was imposed and became final before the convictions were reduced, he is not entitled to relief.
Schmitt maintains that his case is distinguishable from Valenzuela, supra, 244 Cal.App.4th 692, in that Valenzuela involved a defendant who had been convicted and sentenced prior to Proposition 47's enactment. According to Schmitt, because his prior conviction was "subject to reduction [to a misdemeanor]" pursuant to Proposition 47 at the time of his sentencing, the use of that prior conviction to increase his sentence was unauthorized. However, as we have already explained, the enactment of Proposition 47 did not automatically reduce every potentially covered felony conviction to a misdemeanor. Rather, Proposition 47 provided for procedures whereby offenders may petition the court for resentencing on, or redesignation of, a felony conviction. Thus, the relevant date for purposes of reducing a prior felony conviction to a misdemeanor is not the date of the enactment of Proposition 47 but, rather, the date on which a court redesignates the prior felony as a misdemeanor. On the date that Schmitt's 2003 felony conviction was redesignated as a misdemeanor, his section 667.5, subdivision (b) enhancement was final. We therefore conclude that Schmitt's case is not substantively different from Valenzuela.
IV.
DISPOSITION
The judgment of the trial court is affirmed.




AARON, J.

WE CONCUR:




NARES, Acting P. J.




HALLER, J.