Filed 11/27/18 P. v. Jones CA3

Opinion on transfer from Supreme Court

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Dennis Jones appeals from the trial court’s order denying his Penal Code[1] section 1170.18 petition for resentencing on a prior prison term enhancement. He contends that the enhancement became invalid once the prior felony underlying conviction that forms the prison prior was reduced to a misdemeanor pursuant to section 1170.18. We originally held the prison prior remained valid. Thereafter, the 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 prison prior is invalid.

BACKGROUND

We omit the facts of defendant’s crimes as they are unnecessary to resolve this appeal.

In September 2014, defendant was convicted of receiving a stolen motor vehicle with two prior prison term enhancements and sentenced to six years in state prison. The basis of one of the enhancements was a prior conviction for petty theft with a prior.

In April 2015, defendant’s petition to reclassify the petty theft with a prior conviction to a misdemeanor was granted. Defendant then filed a section 1170.18 petition for resentencing on the prison prior supported by the petty with a prior conviction. After briefing from both parties, the trial court denied the petition.

DISCUSSION

Defendant contends that the reduction to a misdemeanor of his petty theft with a prior conviction underlying one of the prior prison term enhancements required the trial court to strike that enhancement.

Proposition 47, the Safe Neighborhoods and Schools Act (the Act) requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) Among the affected crimes is petty theft with a prior, which is now a misdemeanor barring certain exceptions not relevant here. (See §§ 666, 490.) Since the prior prison term enhancement requires that defendant be convicted of a felony and served a prison term for that conviction (§ 667.5, subd. (b)), this raises the question of whether a prior prison term enhancement based on what is now a misdemeanor conviction survives the Act.

In Buycks, the 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.) Furthermore, “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, at p. 888.) A prison prior based on a felony that is now a misdemeanor after Proposition 47 is no longer valid.

We affirmed the underlying conviction in this case on June 30, 2015. (People v. Jones (C077316, June 30, 2015.) Defendant’s conviction therefore was not final when Proposition 47 was passed. Applying Buycks, we conclude (and the Attorney General properly concedes) that the prior prison term based on the now misdemeanor conviction for petty theft with a prior is invalid. We shall modify the judgment to strike the prior conviction.

Defendant notes in his supplemental brief that his other prior prison term may now be invalid under the five year “ ‘washout rule.’ ” (See Buycks, supra, 5 Cal.5th at p. 889 [prison prior does not apply “ ‘if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole’ ”].) He contends that he is entitled to review on whether the other prison prior survives under the “washout rule” after striking the prison prior at issue in this case. We agree. On remand, defendant can contest the validity of the other prison prior under the “washout rule.”[2]

DISPOSITION

The judgment is modified to strike the prior prison term enhancement based on the conviction for petty theft with a prior. The matter is remanded for additional proceedings consistent with this opinion.

/s/

Robie, J.

We concur:

/s/

Raye, P. J.

/s/

Renner, J.