Filed 10/4/17 P. v. Arreola CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
ALEXANDER RAMON ARREOLA et al.,
Defendants and Appellants.
|
F072109
(Super. Ct. Nos. BF159700A, BF159700B)
OPINION |
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant Alexander Ramon Arreola.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Mabel Medina Espinoza.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Alexander Ramon Arreola appeals his 2015 sentence, arguing it improperly includes a one-year enhancement for a prior prison term under Penal Code section 667.5, subdivision (b) (section 667.5(b))[1], because the underlying prior conviction had previously been reduced to a misdemeanor pursuant to the Safe Neighborhoods and Schools Act (hereafter Proposition 47 or the Act.) We agree and modify the judgment as to him.
Appellant Mabel Medina Espinoza’s case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment as to her.
FACTUAL AND PROCEDURAL HISTORY
On April 5, 2015, at around 7:00 a.m., Nathan Del Rio arrived home from his overnight shift at work and parked his truck in front of his house. At around 9:00 a.m., Del Rio’s mother-in-law woke him to tell him there were people in his truck. Del Rio ran outside and saw two people, later identified as Arreola and his wife Espinoza, sitting in the front seat of his truck. When Del Rio yelled at them to “get out of my truck,” they got out and started to run. After running a short distance, Arreola stopped and asked Del Rio if he could go back to the truck and get his “stuff.” Del Rio said no and started to call the police, at which point Arreola ran off again.
When Del Rio went back to his truck, he saw that the rear passenger window was shattered. The interior of the truck was “trashed” and the ignition drilled out. The contents of the glove box and center console, as well as Del Rio’s tools, which had been in the bed of the truck and inside the cab, were strewn about. There was a broken drill bit in the truck’s ignition. A police officer testified that this indicated someone was trying to start the vehicle without a key. Arreola’s California identification card was found in a bag inside the truck.
A short time later that same day, in an unrelated matter, a police officer responded to a call regarding a trespassing incident. When he arrived at the address, he saw a woman, later identified as Espinoza, who he thought was involved in the incident. Espinoza was walking toward him. He asked her multiple times to stop and to show her hands, but she refused. At one point, she stopped suddenly, turned so she was facing away from the officer, with her hands inside the waistband of her pants. The officer ordered Espinoza to put her hands on top of her head. When she did not, he walked toward her to take control of her arm. At that point, Espinoza lunged backward into the officer and grabbed his duty belt. The officer was then able to detain her.
Espinoza was read her Miranda[2] rights and agreed to talk to the officer. Espinoza told the officer that the reason she did not follow his instructions or orders was because she was angry that she had gotten caught trying to take a car. Del Rio subsequently identified Espinoza as the woman he had seen in his truck.
After his arrest, Arreola made a telephone call from jail to his sister. In the call, he acknowledged he made a “bad choice” and wished to apologize “to the guy that I broke into his stuff.”
On April 24, 2015, an information was filed charging Arreola and Espinoza in count 1 with second degree burglary (§ 460, subd. (b)) and in count 2 with attempt to operate a vehicle without the owner’s consent (§ 664; Veh. Code, § 10851, subd. (a)). Espinoza was additionally charged in count 3 with resisting, obstructing or delaying a peace officer, a misdemeanor (§ 148, subd. (a)(1)). As to both counts it was alleged that Arreola had two prior “strike” convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and had served one prior prison term (§ 667.5(b)), which was based on a 2014 conviction for felony second degree burglary (§ 460, subd. (b)).
On May 18, 2015, prior to Arreola’s conviction in the current matter, the trial court granted his petition pursuant to Proposition 47 to reduce his 2014 felony conviction of second degree burglary to a misdemeanor.
Arreola and Espinoza were convicted as charged on June 30, 2015. In a bifurcated proceeding, the trial court found true Arreola’s one prior strike and the prison prior allegations.
On July 14, 2015, Arreola filed a motion to strike the section 667.5(b) enhancement in his current case, arguing it could not be imposed because, under Proposition 47, “[w]hen a felony conviction is recalled and designated a misdemeanor pursuant to Proposition 47, the conviction ‘shall be considered a misdemeanor for all purposes.’”
At sentencing for Arreola on July 29, 2015, the trial court denied Arreola’s motion and sentenced him on count 1 to a prison term of seven years, including a one-year term for the prison prior, and on count 2, to a three-year term, stayed pursuant to section 654.
At sentencing for Espinoza that same day, the trial court suspended imposition of sentence on count 1 and placed her on three years formal probation. As a condition of probation, she was ordered to serve the first year of her probationary period in county jail. The sentence on count 2, one year in county jail, was stayed pursuant to section 654. As to count 3, the trial court denied probation and sentenced Espinoza to one year in county jail, to be served concurrent with the sentence imposed in count 1.
DISCUSSION
Arreola’s Appeal
In November 2014, California voters enacted Proposition 47, which prospectively reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the convictions as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743-744 (Abdallah).) Section 1170.18, subdivision (a) authorizes the court to recall and resentence eligible defendants who are currently serving a felony sentence. Section 1170.18, subdivision (f) authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, supra, at pp. 743-744.)
Section 667.5(b) imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Section 1170.18, subdivision (k) provides that once redesignated, prior convictions “shall be considered a misdemeanor for all purposes” except as it relates to possession or control of a firearm, an exception not applicable here. Because Arreola’s prior conviction was redesignated as a misdemeanor prior to his sentencing in this case, the enhancement cannot be imposed. We have held that the plain language of the statute and its “for all purposes” requirement precludes the imposition of the prior prison term enhancement under these circumstances. (People v. Call (2017) 9 Cal.App.5th 856, 858; (Call); see also People v. Kindall (2016) 6 Cal.App.5th 1199, 1205 (Kindall); Abdallah, supra, 246 Cal.App.4th at p. 746)
Arreola successfully petitioned for redesignation prior to sentencing here. Accordingly, we apply Proposition 47 relief prospectively, as was done in Call, supra, 9 Cal.App.5th 856, Kindall, supra, 6 Cal.App.5th 1199, and Abdallah, supra, 246 Cal.App.4th 736.
Espinoza’s Appeal
Espinoza appealed and we appointed counsel to represent her. Counsel filed an opening brief that set forth the facts of the case and requested this court to review the record and determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Espinoza was advised by this court of the right to file a supplemental brief within 30 days of the date of the filing of the opening brief. More than 30 days have elapsed, and we have received no communication from Espinoza. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Espinoza.
DISPOSITION
As to Arreola, the judgment is modified to strike the one-year prior prison term enhancement. The trial court is directed to forward an amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
As to Espinoza, the judgment is affirmed.
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FRANSON, J.
WE CONCUR:
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HILL, P.J.
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BLACK, J.*
