People v. Warren

24 Cal.App.5th 899

234 Cal.Rptr.3d 733

The PEOPLE, Plaintiff and Respondent,

v.Guy Barrett WARREN, Defendant and Appellant.

F073159

Court of Appeal, Fifth District, California.

Filed June 21, 2018

As Modified on Denial of Rehearing July 19, 2018

Randall Conner, under appointment by the Court of Appeal, Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Jeffrey A. White, and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

SMITH, J.

Appellant Guy Barrett Warren pleaded no contest to three offenses arising from an incident in which he brandished a gun. He received a seven-year sentence that included four one-year enhancements under Penal Code section 667.5, subdivision (b).¹ Each enhancement was based on a prior felony conviction and its associated prison term.

Warren argues that one of the enhancements was imposed erroneously because the prior offense on which it was based had been reclassified as a misdemeanor pursuant to Proposition 47 before sentencing, and therefore no longer qualified as the basis of an enhancement under section 667.5, subdivision (b). We agree.

The other three enhancements were based on prior felonies that have not been reclassified. Warren argues that these should be reversed as well. He contends that the so-called washout provision of section 667.5, subdivision (b), applies because still other prior felonies were reduced to misdemeanors under Proposition 47, with the result that there was a period exceeding five years following the unreclassified felonies during which he was free of felony convictions. The People argue that the washout provision does not apply because prior offenses wash out only if there is an unbroken five-year period during which the defendant was free of both felony offenses and time in prison. The People maintain that the reclassifications of Warren's priors as misdemeanors did not erase the prison terms he served for those priors, and as a result the requirements of the washout provision were not satisfied.

We agree with Warren on this point as well. As we will explain, an intent of Proposition 47 is to relieve defendants of the burdens of both felony convictions and felony sentences. Interpreting the washout provision to allow prison terms for reclassified priors to be disregarded honors this intent while still upholding the intent of section 667.5, subdivision (b). It does not appear to us that any other interpretation allows the two statutes to be harmonized.

In supplemental briefing, Warren informs us that he has been released on post-release community supervision (PRCS). He argues that if we strike enhancements and remand for resentencing, the trial court should be instructed to order a reduction in his PRCS time equal to any excess of his custody credits over the length of the new sentence. The People concede this point.

We will order the four one-year enhancements stricken and remand for resentencing, with instructions to take account of excess custody credits for purposes of determining the PRCS term.

FACTS AND PROCEDURAL HISTORY

As there was no trial, we draw the facts from the probation officer's report. On June 17, 2015, deputies responded to a report of someone brandishing a firearm. They met the victim, Elizabeth V., outside an apartment building. Elizabeth V. told the deputies she had gone to one of the apartments to collect her belongings. While she was there, she was confronted by another witness, Delores R., who argued with her. The argument developed into a physical fight. While Delores and Elizabeth were fighting, Warren came out of a bedroom, produced a handgun from his waistband, and pointed it at Elizabeth. Elizabeth stopped fighting with Delores, took one of her possessions, and left.

On June 19, 2015, the district attorney filed a complaint charging Warren with three counts: (1) being a felon in possession of a firearm (§ 29800, subd. (a)(1) ); (2) being a felon in possession of ammunition (§ 30305, subd. (a) ); and (3) drawing or exhibiting a firearm in a rude, angry or threatening manner in the presence of another person (§ 417, subd. (a)(2) ). The complaint alleged nine prior convictions: (1) first degree burglary (§ 459, subd. (a) ) in 1986; (2) grand theft of a vehicle (former § 487h, subd. (a) ) in 1991; (3) being a felon in possession of a firearm (former § 12021, subd. (a) ) in 1993; (4) second degree burglary (§ 460, subd. (b) ) in 1995; (5) petty theft with a prior theft (§ 666) in 1997; (6) unlawfully taking a vehicle ( § 10851, subd. (a) ) in 2002; (7) petty theft with a prior theft (§ 666) in 2005; (8) second degree burglary (§ 460, subd. (b) ) in 2008; and (9) second degree burglary (§ 460, subd. (b) ) in 2012. All the priors were alleged for purposes of the one-year enhancement under section 667.5, subdivision (b). The 1986 first degree burglary was also alleged as a prior strike (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e) ).

For the 2012 burglary (prior allegation No. 9), Warren had received a prison sentence of six years. Prior to the commission of the current offenses, while Warren was still serving that burglary sentence, he obtained an order pursuant to section 1170.18, subdivision (a) (Proposition 47). The order reduced the offense to a misdemeanor, resentenced Warren to 180 days with credit for time served, and directed his release.

While the current charges were pending, Warren filed a second Proposition 47 petition, this time pursuant to section 1170.18, subdivision (f), seeking reclassification as misdemeanors of the 1997 petty theft with a prior (allegation No. 5), the 2005 petty theft with a prior (allegation No. 7), and the 2008 burglary (allegation No. 8). The petition was granted on July 15, 2015.

Warren pleaded no contest to all counts and all prior conviction allegations on September 30, 2015. He represented himself in the plea proceeding. The plea was without conditions.

While still self-represented, on October 13, 2015, Warren filed a motion to strike all the prior conviction allegations. Defense counsel filed a similar motion on January 20, 2016. Both motions argued that allegation Nos. 5, 7, 8, and 9 could not support enhancements under section 667.5, subdivision (b), because they had been reduced to misdemeanors under Proposition 47. The motions further argued that allegation Nos. 1 through 6 should be stricken under the washout provision, because, in light of the Proposition 47 reductions, these offenses were separated from the next felonies (the current offenses) by a period of five years or more. The motion filed by counsel also asked the court to strike the prior strike (the 1986 burglary) under People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.

The court took up the motions to strike at the sentencing hearing. It rejected Warren's Proposition 47 arguments. In the court's view, a felony committed before the passage of Proposition 47 and reduced afterwards was still a felony for the purpose of imposing sentence enhancements, despite the statutory mandate that any such offense "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)

The court granted Warren's Romero request and struck allegation No. 1, the 1986 burglary. Next, the court accepted the probation officer's finding that allegation Nos. 2 and 3 involved concurrent prison terms and therefore could not support separate enhancements under section 667.5, subdivision (b). It struck allegation No. 2 as invalid for this reason.² The court imposed one-year enhancements under section 667.5, subdivision (b) for four allegations: Nos. 3, 4, 6, and 9.³ It stated that the enhancements for the remaining allegations were "stayed ... in the interest of justice" under section 1385.

For count 1, the court selected the upper term of three years. It added the four one-year enhancements under section 667.5, subdivision (b), for a total sentence of seven years. The court imposed the upper term of three years on count 2, and stayed it pursuant to section 654. On count 3, the court imposed a concurrent term of 180 days.

The table below summarizes the nine enhancements alleged in the complaint, the dates Warren was released from prison for each offense as shown in the probation report, the rulings on the Proposition 47 petitions, the rulings on the motions to strike, and the enhancements applied.

Prior Conviction Sentence Release Rulings on Rulings on Enhancement
offense date date Prop. 47 motions to
petitions strike
(1) First         11/21/86       2 years      12/1/87                         Granted        None
degree                           prison                                       (Romero)
burglary
(§ 460
subd. (a))
(2) Grand         5/17/91        4 years      1/12/934                        Denied         None; found
theft                            prison                                                      to be
vehicle                                                                                      concurrent
(former                                                                                      with prior
§ 487h,                                                                                      No. 3
subd. (a))

(3) Felon         7/27/93        16           2/1/95                          Denied         1 year
in possession                    months                                                      (§ 667.5
of                               prison                                                      subd. (b))
firearm
(former
§ 12021
subd. (a))
(4) Second        5/8/95         32           5/1/97                          Denied         1 year
degree                           months                                                      (§ 667.5
burglary                         prison

...