Filed 12/20/18 P. v. Jones CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.

William G. Holzer, 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, Julie L. Garland, Assistant Attorney General, Barry Carlton, Karl T. Terp, Charles C. Ragland, Allison V. Acosta, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Casey Jones, Jr., appeals an order denying his petition to designate his conviction for burglary (Pen. Code, § 459, unlabeled statutory citations refer to this code) as misdemeanor shoplifting (§ 459.5) under section 1170.18, which California voters enacted as part of The Safe Neighborhoods and Schools Act (Proposition 47). Jones also appeals the order denying his motion to strike the one-year prison prior enhancement (§ 667.5, subd. (b)) imposed on the burglary count, which was based on a conviction the trial court had previously redesignated a misdemeanor under Proposition 47. Jones contends the trial court erred by inadvertently denying his petition to designate the burglary conviction a misdemeanor and by denying his motion to strike the enhancement because the redesignated misdemeanor conviction could not have supported an enhancement had Proposition 47 been in effect at the time of his offenses.

In a prior opinion, we concluded Proposition 47 does not provide a procedure for striking or dismissing enhancements in final judgments and, since Jones’s enhanced conviction was final when Proposition 47 took effect, concluded he could not attack his enhancement directly. In People v. Buycks (2018) 5 Cal.5th 857 (Buycks), the California Supreme Court reached the same conclusion. (Id. at p. 879.) However, we also concluded the trial court erred in summarily denying Jones’s petition to have his burglary conviction reclassified as misdemeanor shoplifting. Since the burglary was the enhanced conviction, its reduction to a misdemeanor would terminate the enhancement as well. We will therefore reverse both trial court orders and remand for further proceedings.

I

FACTS

In case No. FVA1301982, prosecutors charged Jones with one felony count of commercial burglary (§ 459, count 1), one felony count of petty theft with three priors (§ 666, subd. (a), count 2), one misdemeanor count of assault on a police animal (§ 600, subd. (a), count 3), and two felony counts of resisting an executive officer (§ 69, counts 4, 5). The complaint alleged Jones had two prison priors. (§ 667.5, subd. (b).)

In the commercial burglary count, the prosecution alleged “On or about November 6, 2013 . . . the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459, a felony, was committed by Casey Jones, Jr., who did enter a commercial building occupied by Walgreens with the intent to commit larceny and any felony.” According to a police incident report, Jones was arrested because he “walked into the Walgreens business and placed miscellaneous items into his pants pockets and waistband and walked out of the business without paying for them.” The report indicates Jones stole three packages of Dove body wash and one 6-pack of Dove body soap. Together, the items were worth $35.46.

Regarding the prison priors, the prosecution “further alleged as to count(s) 1, 2, 4, 5 pursuant to Penal Code section 667.5(b) that the defendant(s) Casey Jones, Jr., has suffered . . . prior conviction(s)” in “Court Case FVI1202922 [for violating] PC459” and in “Court Case FSB1302227 [for violating] PC 666(A),” and “a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant(s) did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.”

On November 22, 2013, Jones pled guilty to the commercial burglary count, the two resisting an executive officer counts, and admitted the prison prior allegation related to case No. FSB1302227. On motion of the prosecution, the trial court dismissed counts 2 and 3 and struck the prison prior allegation related to case No. FVI1202922. The trial court sentenced Jones to the upper term of three years in county jail for the burglary conviction, two concurrent upper terms of three years for the resisting an executive officer convictions, and a consecutive one-year enhancement for the prison prior. The trial court ordered two years six months of the sentence suspended and imposed mandatory supervision for the same period. However, on March 5, 2014, the trial court found Jones had violated the conditions of mandatory supervision and ordered him to serve 730 days in county jail.

After he pled guilty, Proposition 47 changed portions of the Penal Code to reduce certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 also created a procedure making those changes available to offenders who had previously been convicted of reclassified offenses. (§ 1170.18; Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1217.)

Jones filed a petition in a prior case (No. FSB1302227), requesting the conviction treated as a prison prior in this case (No. FVA1301982) be designated a misdemeanor. On April 24, the trial court granted the petition in the prior case and ordered his felony conviction for violating section 666 reduced to a misdemeanor.^[1] Thus, before Jones brought the petition and motion relevant to this appeal, he had succeeded in getting the enhancement offense reduced to a misdemeanor.

On April 10, 2015, Jones submitted a petition in this case asking the trial court to designate his second degree burglary conviction as a misdemeanor under section 1170.18, subdivision (f). Jones requested a hearing under section 1170.18, subdivision (h). On April 20, 2015, Jones filed a motion for resentencing in this case,^[2] seeking “an overall reduction in his sentence of one year based on the reclassification of the ‘prison prior’ to a misdemeanor.”

On May 22, 2015, the trial court held a hearing. As the People concede, neither the parties nor the trial court mentioned Jones’s petition to reclassify his second degree commercial burglary conviction as misdemeanor shoplifting. Nor did the trial court take evidence. Instead, the court heard argument limited to the issue of whether a prison prior enhancement must be stricken if the underlying conviction has been designated a misdemeanor under a separate section 1170.18 petition. The trial court held “[t]he fact that the underlying offense has now been re-classified as a misdemeanor does not change the fact that the person, in fact, did serve a prior prison term. And does not change the public policy arguments behind [section] 667.5(b), that a person who did serve a prior prison term deserves an enhanced sentence for that effect [sic], despite the fact that that underlying conviction has been reduced to a misdemeanor.” The trial court also rejected the objection that interpreting the statutes in that way violates equal protection. The court concluded for those reasons “the petition for resentencing to strike the prior prison term allegation and strike the one-year enhancement for that prior prison term allegation is denied.” In a minute order filed after the hearing, the trial court denied Jones’s petition.

II

DISCUSSION

Jones argues the trial court erred by denying his motion to strike the one-year enhancement of his sentence based on a felony conviction in a prior case (No. FSB1302227) which had been reclassified as a misdemeanor after his conviction was final.

The plain language of the section setting out new procedures for reducing felonies to misdemeanors expressly allows offenders to seek redesignation of and resentencing on felony convictions that have become final. (§ 1170.18.) The focus of these procedures is redesignation of convictions, not enhancements. Nothing in the language of section 1170.18 allows or even contemplates the retroactive redesignation, dismissal, or striking of sentence enhancements imposed in a final judgment entered before Proposition 47 passed, even where the offender succeeds in having the underlying conviction itself deemed a misdemeanor. (§ 1170.18, subds. (a), (b), (f), (g).)

Jones contends section 1170.18, subdivision (k) provides the statutory basis for altering sentencing enhancements. That subdivision states “[a]ny 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.” (Italics added.) According to Jones, since the conviction underlying his prison prior was deemed a misdemeanor, subdivision (k) required the trial court (and requires us) to treat the offense as a misdemeanor for all purposes, including “for the purpose of [the] prison prior enhancement.” Imposing a sentence enhancement under section 667.5, subdivision (b) requires proof the defendant was previously convicted of a felony. (In re Preston (2009) 176 Cal.App.4th 1109, 1115.) Thus, Jones asks us to decide his prior conviction—now a misdemeanor—no longer supports imposing the enhancement.

The California Supreme Court answered this question definitively in Buycks. Subdivision (k) bars a post-Proposition 47 sentencing court from enhancing a sentence based on a conviction that has been reduced to a misdemeanor prospectively and if the judgment was not final when Proposition 47 took effect. (Buycks, supra, 5 Cal.5th at pp. 878-879, 881, 883.) “[A] successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect.” (Id. at p. 879, italics added.) The problem with Jones’s position is the judgment containing his enhancement was final when Proposition 47 took effect.^[3]

However, Jones is not without recourse. He also argues the trial court erred by ruling summarily he was not entitled to resentencing on his conviction for burglary of the Walgreens under new section 459.5. We agree. Since Jones may be able to escape the enhancement as part of challenging the enhanced conviction, we reverse the trial court and remand for further proceedings.

Proposition 47 added section 459.5 to the Penal Code. The new section provides: “(a) Notwithstanding Section 459 [burglary], shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.” Except in the cases of offenders with specified serious prior convictions, section 459.5 directs “[s]hoplifting shall be punished as a misdemeanor.” (§ 459.5, subd. (a), italics added.) Subdivision (b) further directs “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting” and that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (§ 459.5, subd. (b), italics added.)

Under section 459.5, subdivision (a), Jones would be entitled to resentencing for misdemeanor shoplifting if the items he stole did not exceed $950 in value. The police incident report related to Jones’s burglary arrest indicates he was arrested because he “walked into the Walgreens business and placed miscellaneous items into his pants pockets and waistband and walked out of the business without paying for them.” According to the report, Jones stole three packages of Dove body wash and one 6-pack of Dove body soap. Together, these items were worth $35.46. This information appears to establish Jones “would have been guilty of a misdemeanor” had section 459.5 “been in effect at the time of the offense.” (§ 1170.18, subds. (a), (f).) If the police report is credited, his offense is a classic case of shoplifting and the trial court should have reclassified his conviction.

Jones filed his petition for resentencing under section 1170.18, subdivision (f) and requested a hearing to determine his eligibility. Given such a request, the trial court was required to provide a hearing. (People v. Shabazz (2015) 237 Cal.App.4th 303, 311; § 1170.18, subd. (h) [“Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)”].) According to the record, the trial court held a hearing, but the issue of reducing the second degree burglary conviction to a misdemeanor conviction was never addressed. Further, the trial court never indicated its intention to deny the petition with respect to the commercial burglary count, despite the agreement of the parties that defendant was entitled to relief. Defendant was thereby denied any opportunity to address the reasons leading the court to its conclusion. The trial court’s course of action effectively denied Jones a hearing on his petition for resentencing his commercial burglary conviction. On remand, the trial court must hold a hearing and give the defendant a fair opportunity to make his case.

Should Jones succeed in having the burglary conviction reduced to a misdemeanor, no enhancement could apply to it. We therefore conclude the trial court deprived Jones of his statutory right to challenge his burglary conviction and the enhancement of that conviction by summarily denying the petition to reduce the burglary conviction to a misdemeanor. We remand for the trial court to conduct that inquiry in the first instance.

III

DISPOSITION

We reverse the trial court orders and remand for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

MILLER

Acting P. J.

CODRINGTON

J.