Filed 11/30/18 P. v. Smith CA2/4

Opinion following 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Deemed Petition for Habeas Corpus and Granted.

Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

We reconsider this case on remand from the California Supreme Court, which vacated our prior decision and directed us to reconsider in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). As we explain, we treat this appeal as a habeas corpus proceeding. Under Buycks, we strike five Penal Code section 667.5, subdivision (b) enhancements (based on case Nos. MA050784, MA058073, PA046886, PA040187 and PA035889), and remand for resentencing.

BACKGROUND

A jury convicted defendant Chris Lamar Smith of two counts of identity theft (Pen. Code, § 530.5, subd. (a), counts 1 & 2),[1] four counts of second degree burglary (§ 459, counts 3, 4, 13, 16), four counts of forgery (§ 476, counts 5, 6, 14, 17) and four counts of obtaining money by false pretenses (§ 532, subd. (a), counts 7, 8, 15, 18). The jury also found true seven prior prison term enhancements under section 667.5, subdivision (b) arising from the following prior cases and convictions: (1) case No. PA027288, possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)); (2) case No. PA035889, petty theft with a prior (§ 666); (3) case No. PA040187, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); (4) case No. PA046886, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); (5) case No. MA037819, perjury (§ 118, subd. (a)); (6) case No. MA050784, uttering a fictitious check (§ 476); and (7) case No. MA058073, commercial burglary (§ 459).

The trial evidence is not material to the appeal. We note only that on June 23, 2014, defendant and an accomplice (Elena Trejo) each cashed two stolen checks in different Bank of America branches in the Antelope Valley (appellant’s checks were for $100 and $300, the accomplice’s checks were for $300 each). After turning himself in, defendant confessed to the crimes.

Before his sentencing hearing on December 16, 2014, the voters enacted Proposition 47 (The Safe Neighborhoods and Schools Act), effective November 5, 2014. Proposition 47 “reclassified as misdemeanors certain offenses that previously were felonies or ‘wobblers.’ It also added Penal Code section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors. Section 1170.18 allows those currently serving sentences for Proposition 47 eligible felony convictions to petition to have their sentences recalled and be ‘resentenced to a misdemeanor.’ (§ 1170.18, subd. (b).) It also allows those who have already completed their sentences for Proposition 47 eligible felony convictions to petition to have their convictions ‘designated as misdemeanors.’ (§ 1170.18, subd. (f).) Once an offense is resentenced or redesignated as a misdemeanor it ‘shall be considered a misdemeanor for all purposes.’ (§ 1170.18, subd. (k).)” (Buycks, supra, 5 Cal. 5th at p. 871.)

At his sentencing hearing on December 16, 2014, defendant moved to reduce his commercial burglary convictions to misdemeanors. The court denied the motion, and sentenced him to a total term of nine years in state prison. The court imposed the high term of 3 years on count 1 (identity theft, § 530.5, subd. (a)), and consecutive terms of 8 months each on counts 2 (identity theft), and counts 15 and 18 (obtaining money by false pretenses, § 532, subd. (a)). The court also imposed consecutive one-year terms for the section 667.5, subdivision (b) priors arising from four cases (case Nos. MA058073, MA050784, MA037819, and PA046886). As to all remaining counts, the court sentenced defendant to two years on each count, and stayed the sentence under section 654. The court also purported to stay three of the section 667.5, subdivision (b) priors (case Nos. PA027288, PA035889, and PA040187).

1. The Appeal

Defendant timely appealed from the judgment. In his briefing on appeal, he does not challenge that judgment, except to the extent he notes that the trial court improperly stayed the sentence on three of his section 667.5, subdivision (b) priors. (See People v. Bradley (1998) 64 Cal.App.4th 386, 392-393 [trial court must either impose sentence or strike § 667.5, subd. (b) priors, but cannot stay them].)

Rather, he purports to challenge the trial court’s post-judgment order of May 15, 2015, denying his petition for writ of habeas corpus filed on April 13, 2015. That petition sought, in relevant part, to invalidate certain of defendant’s section 667.5, subdivision (b) priors on the ground that the convictions underlying them had been re-designated as misdemeanors in Proposition 47 proceedings.

Defendant unsuccessfully tried to file a notice of appeal from the May 15, 2015 order, characterizing the court’s order as one “denying his application to reduce his sentence and for other relief sought pursuant to Proposition 47.” The superior court rejected the notice of appeal, because a defendant may not appeal from the denial of a habeas corpus petition. (People v. Garrett (1998) 67 Cal.App.4th 1419, 1421-1423.)

In a footnote in his opening brief, defendant argues that his petition for writ of habeas corpus was “mislabeled,” and should have been treated as a petition to re-designate and resentence under Proposition 47. However, we note that on March 25, 2015, before he filed the habeas corpus petition, defendant filed a form “Motion to Reduce Charge to Misdemeanor [¶] Proposition 47,” requesting the court to “recall and amend” his identity theft convictions (§ 530.5, subd. (a), counts 1 & 2) to misdemeanors, “amend” his section 667.5, subdivision (b) priors, and resentence him. The court denied the motion.

Although this ruling was appealable (see Teal v. Superior Court (2014) 60 Cal. 4th 595, 601 [denial of motion to recall sentence under § 1170.126 is appealable]), defendant did not appeal. Rather, after that motion was unsuccessful, he tried another procedural route: on April 13, 2015, he filed in the trial court the petition for writ of habeas corpus which the trial court denied on May 15, 2015. Thus, we find no support in the record for the notion that defendant “mislabeled” the habeas petition, or that the trial court improperly construed it as a habeas petition.

Without citation of authority, defendant contends that the trial court’s May 15, 2015 order should be “consolidated with this appeal” from the judgment of conviction. However, there is nothing to consolidate, because defendant cannot appeal from that order.

Thus, the only issue defendant has properly raised on appeal is that the trial court erred in staying the sentence on three of his section 667.5, subdivision (b) priors. We agree that a trial court must either impose or strike section 667.5, subdivision (b) priors. However, in light of our decision (explained below) to treat this appeal as a habeas corpus petition and to grant relief under Buycks, supra, we decline to order the “stayed” section 667.5, subdivision (b) priors stricken, and will remand the case for resentencing.

II. The Petition For Writ of Habeas Corpus

In the alternative, defendant argues that his opening brief should be considered a petition for writ of habeas corpus seeking relief from the erroneous May 15, 2015 order denying his habeas corpus petition, which sought to invalidate certain of defendant’s section 667.5, subdivision (b) priors on the ground that the convictions underlying them had been re-designated as misdemeanors in Proposition 47 proceedings. Respondent does not object to the court treating the appeal as a petition for writ of habeas corpus, and we exercise our discretion to do so. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4.) We will hereafter refer to it as his petition.

However, contrary to defendant’s request, we do not review the trial court’s ruling. Rather, we have original jurisdiction in habeas corpus proceedings (Cal. Const., art. VI, § 10), and decide them de novo.

As relevant to the petition for writ of habeas corpus, in a Proposition 47 proceeding held on February 26, 2015 (after judgment and while the appeal was pending), the trial court re-designated as misdemeanors defendant’s convictions of burglary (counts 3, 4, 13,16) and forgery (counts 5, 6, 14, 17). The sentence on all of these counts had originally been two years in state prison, stayed under section 654. As a result of the re-designation, defendant was resentenced on these counts to county jail time, which was likewise stayed under section 654. There was no change in the unstayed sentence imposed.

Also, in additional Proposition 47 proceedings held on various dates from February 26, 2015 through May 7, 2015, the trial court re-designated as misdemeanors the prior convictions underlying five of defendant’s section 667.5, subdivision (b) priors: case Nos. MA050784, MA058073, and PA046886 (which priors the court had imposed), and case Nos. PA040187 and PA035889 (which priors the court had purported to impose and stay). Our record contains no re-designations for the prior convictions underlying the remaining two section 667.5, subdivision (b) priors: case No. MA037819 (which the court had imposed), and case No. PA027288 (which the court had purported to stay).

In Buycks, the Supreme Court held that “that the ‘misdemeanor for all purposes’ provision [of section 1170.18, subdivision (k)] operates prospectively—by having ameliorative effect on any new collateral consequence imposed after a successful Proposition 47 resentencing. However, [under the rule of In re Estrada (1965) 63 Cal.2d 740] because Proposition 47 is a measure designed to ameliorate punishment, the ‘misdemeanor for all purposes’ language also requires felony-based section 667.5 and 12022.1^[[2]] enhancements to be retroactively stricken, but only with regard to judgments that were not final at the time the initiative took effect.” (5 Cal. 5th at p. 876.) Buycks noted that “nothing in Proposition 47 expressly provides a mechanism for recalling and resentencing a judgment because a prior underlying felony conviction supporting an enhancement in that judgment has been reduced to a misdemeanor.” (5 Cal.5th at p. 892.) To fill that gap, the Supreme Court specified two procedures. First, the court held that under the full resentencing rule,[3] “at the time of resentencing of a Proposition 47 eligible felony conviction,” the trial court must “reevaluate the applicability” of an enhancement predicated on a now reduced felony conviction. (Id. at p. 894.) Second, the court concluded the collateral consequences of Proposition 47 could “properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect.” (Id. at p. 895.)

Here, appellant’s judgment as to which he seeks habeas corpus relief (and in which he sought habeas corpus relief in the trial court) was not final when Proposition 47 took effect. Therefore, under Buycks, he is entitled to habeas corpus relief, and to have the five section 667.5, subdivision (b) priors based on felonies later redesignated as misdemeanors stricken. Thus, we strike the section 667.5, subdivision (b) enhancements that were based on case Nos. MA050784, MA058073, and PA046886 (which priors the court had imposed), and case Nos. PA040187 and PA035889 (which priors the court had purported to impose and stay). Because the sentencing court is entitled to exercise its discretion to restructure the entire sentence, including to impose (or strike) the section 667.5, subdivision (b) prior in case No. PA027288 (which the court had purported to stay), we remand the case for resentencing. (See Buycks, supra, 5 Cal.5th at pp. 893-894.)

//

//

//

//

//

//

//

DISPOSITION

The petition for writ of habeas corpus is granted. The section 667.5, subdivision (b) enhancements based on case Nos. MA050784, MA058073, PA046886, PA040187 and PA035889 are stricken. The matter is remanded for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.