Filed 11/26/18 P. v. Vasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jesus Ruiz Vasquez was convicted of willful harm or injury to a child in violation of Penal Code section 273a, subdivision (a)[1] (count 1), and assault with a deadly weapon or force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) (count 2). The court found true appellant personally inflicted great bodily injury on a child under the age of five in the commission of a felony or attempted felony, and each count was enhanced pursuant to section 12022.7, subdivision (d). Finally, the court found appellant had served four prior prison terms pursuant to section 667.5, subdivision (b).[2]

Appellant was sentenced to six years for count 1 and four years for the section 12022.7, subdivision (d) enhancements. Appellant’s sentence as to count 2, and the section 12022.7 enhancement as to count 2, were stayed. Appellant received a one-year enhancement for each of three of his prior prison terms pursuant to section 667.5, subdivision (b),[3] for a total sentence of 13 years.

Appellant filed a timely appeal on August 1, 2016. On June 8, 2017, while this appeal was pending, appellant filed petitions in Kern County Superior Court case Nos. DF007860, DF008544 and DF007399A, seeking to reduce to misdemeanors the prior felony Health and Safety Code section 11377, subdivision (a) convictions, pursuant to Proposition 47 and section 1170.18. Kern County Superior Court granted all three section 1170.18 petitions, and the felony section 11377, subdivision (a) convictions underlying two of petitioner’s prior prison term sentence enhancements were deemed misdemeanors.

Appellant argues the redesignation of the felony convictions in case Nos. DF007860 and DF008544 to misdemeanors, requires the resulting prior prison term enhancements be dismissed.

Because the recently decided People v. Buycks (2018) 5 Cal.5th 857 (Buycks) requires prior prison term enhancements for felonies successfully redesignated as misdemeanors pursuant to Proposition 47 be stricken where the judgment in which the enhancements were imposed was not final at the time Proposition 47 took effect, we reverse appellant’s sentence. On remand, we direct the trial court to strike the section 12022.7, subdivision (b) enhancements arising from case Nos. DF007860 and DF008544, and to resentence appellant.

DISCUSSION

Section 1170.18 allows persons convicted of felonies reducible to misdemeanors pursuant to Proposition 47, to petition the court in which they were convicted for recall and resentencing or redesignation of their felony conviction. Section 1170.18, subdivision (k) states, “A felony conviction that is recalled and resentenced under [section 1170.18,] subdivision (b) or designated as a misdemeanor under [section 1170.18,] subdivision (g) shall be considered a misdemeanor for all purposes….”

Section 667.5, subdivision (b) reads: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony….”

The California Supreme Court in Buycks granted review in three cases to resolve issues concerning Proposition 47’s effect on felony-based enhancements in resentencing proceedings under section 1170.18. Among them, the court reviewed the case of Laura Reynoso Valenzuela, who was found guilty of three felony offenses, and had a prior felony conviction for receiving stolen property under section 496. (Buycks, supra, 5 Cal.5th at pp. 873-874.) At sentencing, Valenzuela received a one-year consecutive term for the section 667.5, subdivision (b) enhancements, and filed an appeal. While the appeal was pending, Valenzuela successfully petitioned to have her section 496 conviction redesignated a misdemeanor. (Buycks, supra, at p. 874.)

As a general proposition, the Supreme Court found “the reduction of a felony conviction to a misdemeanor conviction under Proposition 47 exists as ‘a misdemeanor for all purposes’ prospectively, but, under the Estrada[4] rule, it can have retroactive collateral effect on judgments that were not final when the initiative took effect on November 5, 2014.” (Buycks, supra, 5 Cal.5th at p. 883.)

Turning to the issue of enhancements, the court found “as to nonfinal judgments containing a section 667.5, subdivision (b) one-year enhancement, we conclude that Proposition 47 and the Estrada rule authorize striking that enhancement if the underlying felony conviction attached to the enhancement has been reduced to a misdemeanor under the measure.” (Buycks, supra, 5 Cal.5th at p. 887.)

The court reasoned, “the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant’s previous felony conviction to a misdemeanor conviction because the defendant ‘would have been guilty of a misdemeanor under’ the measure had it ‘been in effect at the time of the offense.’ (§ 1170.18, subds. (a), (f).) Therefore, if the ‘felony conviction that is recalled and resentenced ... or designated as a misdemeanor’ conviction becomes ‘a misdemeanor for all purposes,’ then it can no longer be said that the defendant ‘was previously convicted of a felony’ [citations], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, ‘for all purposes,’ it can only be said that the defendant was previously convicted of a misdemeanor.” (Buycks, supra, 5 CaL.5th at p. 889, fn. omitted.)

As to Valenzuela, the Buycks court concluded, “Because Valenzuela’s judgment … was not final when Proposition 47 took effect, the Estrada rule applies to strike her section 667.5, subdivision (b) prior felony prison term enhancement.” (Buycks, supra, 5 Cal.5th at p. 896.)

In this case, Buycks makes it clear appellant’s section 667.5, subdivision (b) enhancements based on case Nos. DF007860 and DF008544, now misdemeanors, must be stricken. Much like in Buycks, appellant’s case was pending appeal in this court, and therefore not final, when appellant successfully petitioned to have his prior Health and Safety Code section 11377 convictions redesignated as misdemeanors. Accordingly, Estrada allows section 1170.18, subdivision (k) to retroactively apply to appellant’s case. Since case Nos. DF007860 and DF008544 are now misdemeanors for all purposes, they cannot be the basis for section 667.5, subdivision (b) enhancements, which requires the prior prison terms be served for a felony conviction. Necessarily, appellant’s sentence must be reversed.

DISPOSITION

Appellant’s sentence is reversed and the matter is remanded to the trial court with directions to strike the Penal Code section 1170.18, subdivision (b) enhancements arising out of case Nos. DF007860 and DF008544, and to resentence appellant. In all other respects, the judgment is affirmed.