People v. Hampton

THE PEOPLE, Plaintiff and Respondent, v. ARMSTER HAMPTON, Defendant and Appellant.

C081875

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

April 17, 2017

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SF076291B)

In this appeal we again consider whether a reduction of a felony to a misdemeanor pursuant to Penal Code section 1170.18¹ operates to vitiate a sentencing enhancement based on the former felony. Defendant insists that he is entitled to be resentenced in light of the reduction and appeals from the trial court's order denying that relief. We disagree and shall affirm.

BACKGROUND

We dispense with the facts of defendant's crimes as they are unnecessary to resolve this appeal.

In 2003 a jury convicted defendant of robbery (§ 211) and felon in possession of a firearm (former § 12021, subd. (a)). (People v. Hampton (June 22, 2005, C046365) [nonpub. opn.].) The trial court sustained a prior serious felony (§ 667, subd. (a)) and prior prison term allegations (§ 667.5, subd. (b)), and sentenced defendant to 20 years four months in state prison.

On March 4, 2015, defendant filed a section 1170.18 petition to have a 1999 conviction for second degree burglary (§ 459) reclassified as misdemeanor shoplifting (§ 459.5). The motion also requested resentencing on the current conviction, claiming that the 1999 prior could not be used to support the prison prior based on it, and that the remaining prison priors, based on convictions in 1990, 1992, and 1993, would also be invalidated due to the five-year "washout" provision.

The trial court reclassified the second degree burglary conviction to shoplifting on August 6, 2015, but did not notify defendant until December 11, 2015. On December 28, 2015, and February 23, 2016, defendant requested the trial court issue an amended abstract of judgment eliminating the prison priors for the reasons stated in the initial petition. The People filed an opposition, and the trial court denied defendant's claim on March 25, 2015.

DISCUSSION

Section 1170.18, enacted as part of Proposition 47, the Safe Neighborhoods and Schools Act (the Act), provides in pertinent part: "A person who, on November 5, 2016, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case torequest resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (§ 1170.18, subd. (a).) "Any 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, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (§ 1170.18, subd. (k) (hereafter subdivision (k).) Since the prior prison term enhancement requires that defendant be convicted of a felony and have 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 would now qualify as a misdemeanor conviction survives the Act.² Since the prison prior enhancement does not apply if the defendant remains free from prison custody and the commission of any new felony during any five-year period following the end of the prison term (§ 667.5, subd. (b); see People v. Fielder (2004) 114 Cal.App.4th 1221, 1229), reclassifying a felony to a misdemeanor may prevent applying the enactment to earlier convictions under this "washout" rule. (See People v. Abdallah (2016) 246 Cal.App.4th 736, 739-740, 742-743 (Abdallah).)

Defendant insists that a prior prison enhancement does not survive under the circumstances and claims that the trial court erred in not striking his prison priors.

Regrettably, for defendant's purposes, section 1170.18 does not apply retroactively. Subdivision (k) was interpreted in the context of felony jurisdiction over criminal appeals in People v. Rivera (2015) 233 Cal.App.4th 1085 (Rivera). Riverafound that subdivision (k), which parallels the language from section 17 regarding the reduction of wobblers to misdemeanors,³ should be interpreted in the same way as being prospective, from that point on, and not for retroactive purposes. (Rivera, at p. 1100; see also People v. Moomey (2011) 194 Cal.App.4th 850, 857 [rejecting assertion that assisting a second degree burglary after the fact does not establish the necessary element of the commission of an underlying felony because the offense is a wobbler: "Even if the perpetrator was subsequently convicted and given a misdemeanor sentence, the misdemeanant status would not be given retroactive effect"].) The court in Rivera accordingly concluded that the felony status of an offense charged as a felony did not change after the Act was passed, thereby conferring jurisdiction on the Court of Appeal.⁴ (Rivera, at pp. 1094-1095, 1099-1101.) We see no reason to depart from Rivera. Although Rivera addressed subdivision (k) in a different context, its analysis of subdivision (k) is equally relevant here.

Citing People v. Park (2013) 56 Cal.4th 782 (Park), People v. Flores (1979) 92 Cal.App.3d 461 (Flores), and Abdallah, supra, 246 Cal.App.4th 736, defendantasserts that the text of subdivision (k) requires striking the prison prior. Neither the cited cases, nor any other, support that assertion.

In Park, the Supreme Court held that a felony conviction properly reduced to a misdemeanor under section 17, subdivision (b) could not subsequently be used to support an enhancement under section 667, subdivision (a). (Park, supra, 56 Cal.4th at p. 798.) Applying the reduction to eliminate an enhancement would be a retroactive application, which is impermissible under both section 17 and the Act. The distinction between retroactive and prospective application was recognized by the Supreme Court in Park. "There is no dispute that, under the rule in [prior California Supreme Court] cases, [the] defendant would be subject to the section 667[, subdivision] (a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." (Park, at p. 802.) Retroactive versus prospective application was also invoked by the Supreme Court in distinguishing cases cited by the Attorney General. "None of the cases relied upon by the Attorney General involves the situation in which the trial court has affirmatively exercised its discretion under section 17[, subdivision] (b) to reduce a wobbler to a misdemeanor before the defendant committed and was adjudged guilty of a subsequent serious felony offense." (Park, at pp. 799-800.) In the present case, defendant committed his current felonies before his prior convictions could be reduced to a misdemeanor; applying that reduction to eliminate the corresponding prior prison term enhancement would therefore be an impermissible retroactive application of the Act.

Park is not the only example of the Supreme Court finding that reducing a felony to a misdemeanor pursuant to section 17 is not applied retroactively. For example, if a defendant is convicted of a wobbler and is placed on probation without imposition of sentence, the crime is considered a felony "unless subsequently 'reduced to a misdemeanor by the sentencing court' pursuant to section 17, subdivision (b). [Citations.]" (People v. Feyrer (2010) 48 Cal.4th 426, 438-439 (Feyrer).) "If ultimatelya misdemeanor sentence is imposed, the offense is a misdemeanor from that point on, but not retroactively." (Id. at p. 439.) It has therefore long been the rule regarding section 17 that "as applied to a crime which is punishable either as felony or as misdemeanor: 'the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that event it is a felony after as well as before judgment; but if the judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter--the judgment not to have a retroactive effect . . . .' " (People v. Banks (1959) 53 Cal.2d 370, 381-382, quoting Doble v. Superior Court (1925) 197 Cal. 556, 576-577 (Doble).)

Defendant's reliance on Flores is similarly misplaced. The defendant in Flores was sentenced to prison following his conviction of selling heroin (Health & Saf. Code, § 11352), and his state prison sentence for that crime was enhanced by one year under section 667.5, subdivision (b). (Flores, supra, 92 Cal.App.3d at pp. 464, 470.) The enhancement was based on a prior felony conviction of possession of marijuana under Health and Safety Code section 11357. (Flores, at p. 470.) That statute had since been amended in 1975 to make possession of marijuana a misdemeanor. (Ibid.)

The Flores court noted that in 1976 the Legislature enacted Health and Safety Code section 11361.5, subdivision (b), which "authorize[d] the superior court, on petition, to order the destruction of all records of arrests and convictions for possession of marijuana, held by any court or state or local agency and occurring prior to January 1, 1976." (Flores, supra, 92 Cal.App.3d at p. 471.) Also in 1976, Health and Safety Code section 11361.7 "was added to provide in pertinent part that: '(a) Any...