Filed 11/20/18 P. v. Hernandez CA2/3

Opinion on transfer from Supreme Court

not to be published in the official reports

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew E. Cooper, Judge. Affirmed in part, reversed in part, and remanded with directions.

Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2015, defendant Juan Manuel Hernandez appealed from a judgment imposed after a jury convicted him of possession for sale of methamphetamine and marijuana, arguing that the trial court erred by imposing a one-year enhancement for a prison prior that was subsequently reduced to a misdemeanor under Proposition 47. In 2016, we concluded that Proposition 47 did not apply retroactively to properly-imposed enhancements and affirmed. The Supreme Court granted review and has now transferred the case back to us for reconsideration in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). Having reconsidered the matter, we now hold that the prison prior must be stricken and defendant must be resentenced.

background

On September 25, 2014, deputies from the Los Angeles Sheriff’s Department conducted a parole compliance check at defendant’s home. A search revealed a digital scale and various drugs divided into separate packages. A defense narcotics expert would later testify that this evidence was more consistent with personal use than with a sales operation.

By information filed October 14, 2014, the People charged defendant with possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 1), possession of marijuana for sale (Health & Saf. Code, § 11359; count 2), and possession of a smoking device, a misdemeanor (former Health & Saf. Code, § 11364.1, subd. (a)(1);[1] count 3). The information also alleged three strike priors (Pen. Code,[2] § 667, subds. (b)–(i); § 1170.12, subds. (a)–(d)) and four prison priors (§ 667.5, subd. (b)). Defendant pled not guilty and denied the allegations.

After a bifurcated trial, the jury convicted defendant of all counts. Defendant waived a jury trial on the prior convictions and later admitted them. The court found the prior convictions true.

On April 24, 2015, the court denied defendant’s motion to strike the priors and sentenced him to an aggregate term of eight years in state prison followed by six months in any penal institution. The court selected count 1 (Health & Saf. Code, § 11378) as the base term, and sentenced defendant to four years—the middle term of two years, doubled for the strike prior. The court added one year for each of the four prison priors (§ 667.5, subd. (b)), to run consecutively. The court imposed the middle term of two years for count 2 (Health & Saf. Code, § 11359), to run concurrently, and six months for count 3 (former Health & Saf. Code, § 11364.1, subd. (a)(1)), to run consecutively.

Defendant filed a timely notice of appeal. The court subsequently awarded defendant 425 days of pretrial custody credit—213 days actual credit plus 212 days conduct credit.

On December 23, 2015, in case No. MA039126, the superior court granted defendant’s petition to reclassify his felony conviction for Health and Safety Code section 11377, subdivision (a), as a misdemeanor. (§ 1170.18, subd. (f).) On January 29, 2016, we denied defendant’s request to augment the record with the minute order from that hearing. Instead, we took judicial notice of the minute order on our own motion. (Evid. Code, § 452, subd. (d)(1).)

On appeal, defendant challenged the court’s imposition of a one-year enhancement (§ 667.5, subd. (b)) for his conviction in case No. MA039126, the subsequently-reclassified conviction. To the extent we rejected this argument because he did not petition to redesignate the conviction until several months after sentencing, he argued trial counsel was ineffective for failing to file a petition in the 2007 case before the sentencing hearing in this one.

On August 30, 2016, we rejected these arguments by unpublished opinion and concluded that because Proposition 47 was neither retroactive nor self-executing, the enhancement was valid, and the record on appeal did not contain sufficient information for us to evaluate counsel’s effectiveness.

On November 9, 2016, the Supreme Court granted review and held the matter pending its decision in Buycks, supra, 5 Cal.5th at p. 857. Two years later, on September 19, 2018, the Court remanded the matter to us with directions to vacate our prior decision and reconsider the matter in light of Buycks.

DISCUSSION

Defendant contends that under Buycks, the one-year enhancement imposed based on his conviction in case No. MA039126 must be stricken because the underlying offense is now a misdemeanor. The issue before us is a question of law, which we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 893–894.)

1. Proposition 47

On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative aims to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from” the Act in elementary and high school programs, victims’ services, and mental health and drug treatment. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Proposition 47 targets these goals in four ways: (1) it amends the Penal Code and Health and Safety Code to reduce certain property crimes and possessory drug offenses from felonies or wobblers[3] to misdemeanors; (2) it allows people serving felony sentences for newly-reduced offenses to ask the court to resentence them as misdemeanants (§ 1170.18, subds. (a), (b)); (3) it allows people who have finished serving a qualified felony sentence to ask the court to reclassify the conviction as a misdemeanor (§ 1170.18, subds. (f)–(h)); and (4) it creates a Safe Neighborhoods and Schools Fund to be financed with savings generated by the changes to the sentencing laws (Gov. Code, § 7599 et seq.). (Ballot Pamp., supra, text of Prop. 47, § 3, p. 70.)

Proposition 47 is not self-executing, however. (People v. Curry (2016) 1 Cal.App.5th 1073, 1077–1078.) Instead, it creates a mechanism for the court that originally imposed a felony sentence on an eligible defendant to redesignate that conviction as a misdemeanor. (Ibid.; see People v. Conley (2016) 63 Cal.4th 646 [Prop. 36 reduction not automatic; defendant must follow statutory procedure].)

As relevant to this case, the Act provides that any defendant 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.” (§ 1170.18, subd. (f).) If the defendant chooses to file a petition, and if the petition satisfies these criteria, “the court shall designate the felony offense or offenses as a misdemeanor.” (Id., subd. (g).) At that point, the conviction “shall be considered a misdemeanor for all purposes, except that 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 [the chapter prohibiting firearm access by certain narcotics offenders].” (Id., subd. (k).) In short, relief is optional. A defendant must take affirmative steps to petition for reduction using the established statutory procedure. (People v. Curry, supra, 1 Cal.App.5th at pp. 1077–1079.)

As discussed, one of the prior convictions found true in this case was a 2007 felony conviction in case No. MA039126 for violating Health and Safety Code section 11377. That offense was eligible for reclassification under Proposition 47. (§ 1170.18, subd. (a); Health & Saf. Code, § 11377, subd. (a).) When the court sentenced defendant on April 24, 2015, however, defendant had not yet petitioned to reduce that conviction to a misdemeanor. As the conviction was still a felony, the court properly used it as the basis for a one-year enhancement (§ 667.5, subd. (b)).

But since then, defendant availed himself of Proposition 47’s reclassification procedures and now stands convicted of a misdemeanor—and section 667.5, subdivision (b), only applies to felonies. Under Buycks, “section 1170.18, subdivision (k) can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure.” (Buycks, supra, 5 Cal.5th at p. 890.) As such, the enhancement must be stricken.

2. Remedy

Buycks instructs that “when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ [Citation.]” (Buycks, supra, 5 Cal.5th at p. 893.) Defendant asks us to strike the enhancement and remand for resentencing. The People have expressed no opinion on the appropriate remedy in this case.[4] Accordingly, we grant defendant’s requested relief and remand the matter for resentencing.

For purposes of resentencing, we note that the court should calculate defendant’s custody credits attributable to the prison prior and reduce his period of Post-Release Community Supervision by that amount. (People v. Steward (2018) 20 Cal.App.5th 407, 426.) We also note that although our prior opinion in this case struck the penalty assessments imposed on the $50 crime lab fee (Health & Saf. Code, § 11372.5) because penalty assessments may only be imposed on fines, while this case was under review, the Supreme Court held that the crime lab fee is not a fee. Instead, it is a fine and is therefore subject to penalty assessments. (People v. Ruiz (2018) 4 Cal.5th 1100.)

DISPOSITION

The true finding on defendant’s prior conviction in case No. MA039126 is reversed, defendant’s sentence is vacated, and the matter is remanded for resentencing. In all other respects, we affirm.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

STRATTON, J.*