P. v. Dixon

Filed 12/21/16 P. v. Dixon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PARIS DIXON, III,
Defendant and Appellant.
B268722
(Los Angeles County
Super. Ct. No. BA409103)
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:*
It is ordered that the opinion filed herein on December 14,
2016, be modified as follows:
At page 1, the one-sentence paragraph starting with
“Ann Krausz,” delete “Ann Krausz” and add “John L. Staley” to
replace the deletion.

-- 1 of 9 --

2
There is no change in the judgment.
____________________________________________________________
*EPSTEIN, P. J. MANELLA, J. WILLHITE, J.

-- 2 of 9 --

Filed 12/14/16 P. v. Dixon CA2/4 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PARIS DIXON, III,
Defendant and Appellant.
B268722
(Los Angeles County
Super. Ct. No. BA409103)
APPEAL from an order of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Affirmed.
Ann Krausz, under appointment of 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, Mary Sanchez and Margaret E.

-- 3 of 9 --

2
Maxwell, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________
INTRODUCTION
This appeal raises an issue this court recently
addressed and which is currently under review by the
California Supreme Court: whether a prior felony
conviction, reduced to a misdemeanor under Penal Code
section 1170.181 after a defendant has begun serving his
sentence, can support an enhancement under section 667.5,
subdivision (b). In People v. Hoang, review granted October
12, 2016, S236454, we held that such a prior conviction can
support the enhancement.2
As the Supreme Court has not
1
All further statutory citations are to the Penal Code,
unless otherwise stated.
Section 1170.18 was added to the Penal Code by
Proposition 47, the Safe Neighborhoods and Schools Act.
(See Prop. 47, approved Nov. 4, 2014, eff. Nov. 5, 2014.)
2
The lead case on this issue is People v. Valenzuela,
review granted March 30, 2016, S232900. The order
granting review was addressed to the following issue: “Is
defendant eligible for resentencing on the penalty
enhancement for serving a prior prison term on a felony
conviction after the superior court had reclassified the
underlying felony as a misdemeanor under the provisions of
Proposition 47?” (Cal. Supreme Ct. News Release (Apr. 1,

-- 4 of 9 --

3
yet decided the issue and appellant’s arguments do not
persuade us otherwise, we affirm our prior ruling and apply
it to this case. Accordingly, we conclude the trial court did
not err in denying appellant’s application for resentencing
pursuant to section 1170.18, which sought to strike four one-
year enhancements pursuant to section 667.5 on the basis
that the underlying felony convictions had been reduced to
misdemeanors.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY3
On March 17, 2013, appellant Paris Dixon, III
assaulted and threatened his girlfriend. On June 19, 2013,
appellant pled guilty to one count of making criminal threats
(§ 422, subd. (a)), and admitted one prior “strike” under the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)) and four prior felony convictions for which he had served
2016) Summary of Cases Accepted and Related Actions
During Week of March 28, 2016.) The court has granted
review on this and related issues in numerous other cases.
(E.g., People v. King, review granted June 8, 2016, S234196,
People v. Cisneros, review granted June 8, 2016, S234078,
People v. Williams, review granted May 11, 2016, S233539,
People v. Ruff, review granted May 11, 2016, S233201,
People v. Carrea, review granted April 27, 2016, S233011.)
3
We grant respondent’s request to take judicial notice of
the court’s opinion in defendant’s direct appeal from the
judgment of conviction. (People v. Dixon (Jan. 29, 2014,
B250016) [nonpub. opn.].)

-- 5 of 9 --

4
prison terms. Pursuant to a plea agreement, the trial court
sentenced appellant to a three-year upper term for making
criminal threats, doubled that term pursuant to the Three
Strikes law, and added four one-year enhancements for the
prior prison terms pursuant to section 667.5, subdivision (b).
(See People v. Dixon, supra, at pp. 2-3.)
In appellant’s direct appeal, we independently
reviewed the record pursuant to People v. Wende (1979) 25
Cal.3d 436. We affirmed his conviction and sentence in an
unpublished opinion. (See People v. Dixon, supra, at p. 4.)
On December 24, 2014, appellant, representing
himself, filed a motion for modification of sentence pursuant
to section 1170, subdivision (d), to reduce each prior felony
conviction to a misdemeanor under Proposition 47. On
January 20, 2015, the trial court denied the motion.
Subsequently, the court granted appellant’s separate
petitions to reduce each of his four prison priors to a
misdemeanor pursuant to section 1170.18.
On June 5, 2015, appellant’s retained counsel filed an
application for resentencing pursuant to section 1170.18,
seeking to strike the four section 667.5 enhancements on the
ground that the underlying prison priors had become
misdemeanors. The trial court denied the application. This
appeal followed.4
4
This court granted appellant’s application for relief
from default, and permitted the late filing of his notice of
appeal.

-- 6 of 9 --

5
DISCUSSION
Because a prior prison term enhancement can be
imposed only for a felony (see § 667.5, subd. (b)) and the
underlying prior convictions are now misdemeanors,
appellant contends the trial court erred in denying his
application to strike the four section 667.5 enhancements
pursuant to section 1170.18. As explained below, we
disagree.5
As we have previously stated, while Proposition 47
created a procedure -- set forth in section 1170.18 -- for
offenders to obtain reclassification and resentencing on
convictions on a retroactive basis, it does not provide a
similar procedure to strike or dismiss sentence
enhancements retroactively. Additionally, while a re-
designated misdemeanor is a “misdemeanor for all purposes”
(§ 1170.18, subd. (k)), because Proposition 47 does not
otherwise address the retroactive application of that
subsection, we conclude that the misdemeanor treatment
occurs prospectively, not retroactively. (See People v. Brown
(2012) 54 Cal.4th 314, 324 [“‘“a statute that is ambiguous
with respect to retroactive application is construed . . . to be
unambiguously prospective”’”]; see also § 3 [“No part of it
[Penal Code] is retroactive, unless expressly so declared.”].)
5
Respondent contends the appeal should be dismissed,
as the trial court lacked jurisdiction under section 1170.18 to
grant the relief requested. Because dismissal requires us to
interpret section 1170.18 on the issue raised in the appeal,
we decline to do so.

-- 7 of 9 --

6
Finally, section 1170.18 makes no reference to section 667.5,
subdivision (b), and thus it cannot be interpreted to affect
enhancements under that statute. The qualifying criterion
for an enhancement under section 667.5, subdivision (b) is
having served a prior prison term for a felony conviction.
That criterion is not changed by a later reduction of the
felony to a misdemeanor, as the purpose of the section 667.5,
subdivision (b) enhancement is to punish individuals for
recidivism. (See People v. Gokey (1998) 62 Cal.App.4th 932,
936 [“Sentence enhancements for prior prison terms are
based on the defendant’s status as a recidivist, and not on
the underlying criminal conduct, or the act or omission,
giving rise to the current conviction.”].)
Appellant further contends that the failure to strike
the one-year sentence enhancement for the prison priors
which were re-designated misdemeanors violates his right to
equal protection under the federal and state constitutions.
He argues there is no rational distinction between
individuals who commit the same crimes but are sentenced
before or after the enactment of Proposition 47. We reject
this claim because no “equal protection violation aris[es]
from the timing of the effective date of a statute lessening
the punishment for a particular offense.” (People v. Floyd
(2003) 31 Cal.4th 179, 188 [rejecting equal protection claim
with respect to Proposition 36].) “‘The Legislature properly
may specify that such statutes are prospective only, to
assure that penal laws will maintain their desired deterrent
effect by carrying out the original prescribed punishment as

-- 8 of 9 --

7
written.’” (Ibid., quoting In re Kapperman (1974) 11 Cal.3d
542, 546.) “The voters have the same prerogative.” (People
v. Floyd, supra, at p. 188 .) As the Supreme Court has
explained, “‘the ability to elect to be sentenced under a law
enacted after the date of the commission of a crime is not a
constitutional right but a benefit conferred solely by statute.
It is not unconstitutional for the legislature to confer such
benefit only prospectively . . . . ’” (Id. at pp. 189-190,
quoting People v. Grant (Ill. 1978) 377 N.E.2d 4, 9.)
Accordingly, the failure to strike the prison prior
enhancements does not constitute an equal protection
violation.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.

-- 9 of 9 --