Filed 11/16/18 P. v. Ibarra CA3

Opinion following transfer from the Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Lidia Ibarra of furnishing methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) (People v. Ibarra (Feb. 18, 2015, C072556) [nonpub. opn.] (Ibarra).) The trial court sustained three prior prison term allegations (Pen. Code, § 667.5, subd. (b))[1] and sentenced defendant to nine years in state prison. (Ibarra, supra, C072556.) We affirmed the conviction but reversed the prison term priors for insufficient evidence and remanded for specific additional findings as to one requirement. (Ibarra, supra, C072556.) On remand, defendant asked the court to find two of the prior prison term allegations not true, because their underlying convictions were previously reduced to misdemeanors pursuant to section 1170.18. The trial court agreed to “hear this argument even though it’s not the subject of remittitur,” and subsequently declined to find “that the granting in [sic] the petitions under Prop 47 here precludes the application of these additional prison terms.” The trial court then found “beyond a reasonable doubt that . . . the [three] prior one-year allegations . . . are true.” The court announced it was “prepared to sentence [defendant] to one year consecutive sentence for each of the prior convictions. . . . consecutive to the term that [it] had previously imposed for the charged offenses” and did so.

On appeal, defendant contends that the two prison priors based on what are now misdemeanor convictions should have been stricken. We originally found the prison priors remained valid as the determination that the underlying prior convictions were felonies was correct at the time it was made, and the trial court had no jurisdiction to revisit that determination on remand. Thereafter, our 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 priors are invalid.

I. BACKGROUND

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

Defendant’s three prison term priors were based on a 2006 conviction for first degree burglary (§ 459), and convictions for possession of a controlled substance (Health & Saf. Code, § 11377) in 1995 and 1999. In the appeal from her conviction, defendant asserted there was insufficient evidence she was not subject to the five-year “washout” provision in section 667.5, subdivision (b). (Ibarra, supra, C072556.) The People agreed. (Ibid.) We reversed the prison term priors and remanded the matter to the trial court. (Ibid.) Our remittitur read in pertinent part:

“The trial court’s true findings on defendant’s three prior prison terms are reversed. The matter is remanded to the trial court for the limited purpose of affording the People the opportunity to establish that defendant did not remain free for five years of both prison custody and a new felony conviction as required by Penal Code section 667.5, subdivision (b). The People have 90 days from remittitur to calendar a hearing for this purpose.

“If the People meet their burden, the trial court shall reenter the judgment and sentence, as modified. If the People fail to timely calendar the necessary hearing within 90 days from remittitur, or, at said hearing, fail to prove defendant’s prior prison terms as detailed ante, the trial court is directed to dismiss the allegations and resentence defendant accordingly.” (Ibarra, supra, C072556.)

The People calendared a hearing on the prison term priors, which was held on September 11, 2015. Before the hearing, the 1995 and 1999 possession priors were reduced to misdemeanors pursuant to section 1170.18. Defendant claimed the trial court could not sustain the 1995 and 1999 prison priors because they were misdemeanors. As we have described above, the trial court disregarded the limited nature of the remittitur and entertained the argument. It concluded that the reduction of the crimes underlying two of the three prior prison terms to misdemeanors had no effect on their use in proving the prior prison terms at issue. The court imposed a sentence of three years for the three prison priors, and “confirmed” the remaining six years of the sentence already imposed, for a total term of nine years in state prison.

II. DISCUSSION

Proposition 47 made “certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by specified ineligible defendants.” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) People currently serving or who have completed a sentence for a crime subject to Proposition 47 may petition to have the offense reduced to a misdemeanor and to be resentenced, if applicable. (§ 1170.18, subds. (a), (b), (g).) “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).)

In Buycks, our 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.” (Buycks, supra, 5 Cal.5th at p. 871.) Therefore, Proposition 47 authorizes striking a section 667.5 enhancement “if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure.” (Buycks, at p. 888.) A prison prior based on a felony that is now a misdemeanor after Proposition 47 is no longer valid. In this case, the prison priors based on the 1995 and 1999 prior convictions, that are now misdemeanors for all purposes, must be stricken.

III. DISPOSITION

The judgment is modified to strike the prior prison term enhancements based on the 1995 and 1999 misdemeanor convictions for possession of a controlled substance. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

DUARTE, J.