People v. Lout
| Decision Date | 19 October 2016 |
| Docket Number | F072214 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DANIEL LOUT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION*
APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo- Defendant Joseph Daniel Lout contends his two prior felony convictions reduced to misdemeanors pursuant to Proposition 47 (Pen. Code, § 1170.18)1 may no longer form the basis for prior prison term allegations under section 667.5, subdivision (b), and thus we should strike his two prior prison term enhancements. We affirm.
On November 29, 2011, the trial court sentenced defendant to 13 years in prison, plus two years for prior prison term enhancements (§ 667.5, subd. (b)) based on a Health and Safety Code section 11377, subdivision (a) conviction and a section 496, subdivision (a) conviction. On March 13, 2014, defendant was resentenced after appeal to eight years in prison, plus two years for the prior prison term enhancements.
On May 21, 2015, the trial court granted defendant's petition for resentencing pursuant to Proposition 47, reducing both the Health and Safety Code section 11377, subdivision (a) conviction and the section 496, subdivision (a) conviction, upon which the prior prison term enhancements were based, to misdemeanors.
On June 15, 2015, defendant filed a motion to strike the prior prison term enhancements because the underlying offenses had been reduced to misdemeanors. On June 30, 2015, the trial court denied the motion. On August 21, 2015, defendant filed a notice of appeal.
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) (Id. at p. 1091.)
(People v. Rivera, supra, 233 Cal.App.4th at p. 1092.)
As noted above, on May 21, 2015, the trial court granted defendant's Proposition 47 petition and reduced to misdemeanors two prior convictions upon which the prior prison term allegations were based. Defendant contends the prior convictions are now misdemeanors for all purposes and may no longer support prior prison term allegations under section 667.5, subdivision (b).2
Subdivision (k) of section 1170.18, provides in pertinent part: "Any felony conviction that is ... 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 orprevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."
In People v. Park (2013) 56 Cal.4th 782 (Park), the defendant's sentence for his current crimes was enhanced by five years under section 667, subdivision (a), based on his prior conviction of a serious felony. Prior to the defendant's commission of his current crimes, however, the trial court reduced the prior offense to a misdemeanor under section 17, subdivision (b)(3), and then dismissed it pursuant to section 1203.4, subdivision (a)(1). (Park, supra, 56 Cal.4th at p. 787.)
Section 17, subdivision (b)(3) states in part: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail ..., it is a misdemeanor for all purposes ... [¶] ... [¶] ... [w]hen the court grants probation to a defendant without imposition of sentence and at the time of granting probation ... declares the offense to be a misdemeanor."
In Park, the Court of Appeal concluded the conviction remained a prior serious felony for purposes of sentence enhancement under section 667, subdivision (a), but the California Supreme Court disagreed: "[W]hen the court in the prior proceeding properly exercised its discretion by reducing the ... conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence." (Park, supra, 56 Cal.4th at p. 787, first italics added.)
Defendant's reliance on Park is misplaced. In Park, the reduction and dismissal occurred prior to the defendant's commission of his current crimes. (Park, supra, 56 Cal.4th at p. 787.) Here, the reduction to a misdemeanor pursuant to section 1170.18, subdivision (f), occurred after defendant's commission, conviction, and sentence for his current crimes. In Park, in response to an argument that People v. Feyrer (2010) 48 Cal.4th 426 and People v. Banks (1959) 53 Cal.2d 370 were contrary to its conclusion, the court stated: "There is no dispute that, under the rule in those cases, defendant wouldbe 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, supra, 56 Cal.4th at p. 802.)
The issue before us is not whether defendant's underlying convictions and prison commitments can now be used to enhance a future sentence pursuant to section 667.5, subdivision (b), should defendant commit a new felony upon release from prison on his current sentence. The issue is whether defendant's current sentence, enhanced pursuant to section 667.5, subdivision (b), must now be altered because, subsequent to defendant's sentencing, the convictions that gave rise to those enhancements were reduced to misdemeanors pursuant to section 1170.18, subdivision (f). In other words, does Proposition 47 operate retroactively? To make that determination, we look to the language of section 1170.18 and to voter intent.
Section 3 specifies that no part of the Penal Code "is retroactive, unless expressly so declared." This language (People v. Brown (2012) 54 Cal.4th 314, 324.)
An "important, contextually specific qualification" to the prospective-only presumption regarding statutory amendments was set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). (People v. Brown, supra, 54 Cal.4th at p. 323.) That qualification is: "When the Legislature [or electorate] has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature [or electorate] intended the amended statute to apply to alldefendants whose judgments are not yet final on the statute's operative date." (Ibid., fn. omitted.)
Although Estrada's language is broad, the California Supreme Court has emphasized the rule's narrowness in People v. Hajek and Vo (2014) 58 Cal.4th 1144 at page 1196 (abrogated on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1215-1217): " 'Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in section 3, but rather as informing the rule's application in a specific context by articulating the reasonable presumption that a legislative [or voter] act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments.' "
The question of retroactivity is ultimately one of legislative—or, in this case, voter—intent. (People v. Shabazz (2015) 237 Cal.App.4th 303, 312-313; see People v. Nasalga (1996) 12 Cal.4th 784, 793.) "To resolve this very specific retroactivity question, we apply the well-settled rules governing interpretation of voter intent[.]" (People v. Shabazz, supra, at p. 313.) " ...
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