P. v. Sims

Filed 10/24/17 P. v. Sims CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL OSHEA SIMS,
Defendant and Appellant.
B272466
(Los Angeles County
Super. Ct. No. NA093791)
APPEAL from an order of the Superior Court of
Los Angeles County, James D. Otto, Judge. Appeal is Dismissed.
ORIGINAL PROCEEDINGS in HABEAS CORPUS.
Petition is denied.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Mary Sanchez, Abtin Amir, and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.

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Michael Oshea Sims was convicted of robbery in 2013 and
sentenced to state prison with several enhancements, including
three one-year enhancements under Penal Code section 667.5,
subdivision (b),1 for having served separate prison terms for
felonies. Sims now purports to appeal from the trial court’s order
denying his motion for modification of his sentence after two of
the felony convictions that were the bases for the section 667.5,
subdivision (b), enhancements were redesignated as
misdemeanors under Proposition 47, the Safe Neighborhoods and
Schools Act of 2014. We treat Sims’s appeal as a petition for writ
of habeas corpus and deny relief: Sims was not eligible for
resentencing to dismiss a prior prison term enhancement once his
conviction for the underlying offense had become final.
FACTUAL AND PROCEDURAL HISTORY
On March 28, 2013 a jury convicted Sims of second degree
robbery after he stole merchandise from a market and threatened
a theft prevention officer with what appeared to be a gun. In a
bifurcated proceeding the trial court found Sims had suffered one
prior serious felony conviction within the meaning of section 667,
subdivision (a), and one prior serious or violent felony conviction
within the meaning of the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and had served three separate prison terms for felonies
(§ 667.5, subd. (b)), including two separate felony prison terms for
petty theft with a prior theft-related offense. The court sentenced
Sims to an aggregate state prison term of 14 years, and we
affirmed that judgment (People v. Sims (May 12, 2014, B248586)
[nonpub. opn.]).
1 Statutory references are to this code.

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After his conviction became final, in August and September
2015 Sims successfully petitioned the trial court under
Proposition 47 to have his two prior convictions for petty theft
with a prior redesignated as misdemeanors. (§ 1170.18,
subds. (f), (g).)
In March 2016 Sims, representing himself, filed a motion to
modify his 14-year sentence for second degree robbery by striking
the prior prison enhancements based on felony convictions that
had since been reclassified as misdemeanors. Without
identifying whether it was treating Sims’s motion as a petition
under section 1170.18 or a habeas corpus petition, the trial court
denied Sims’s resentencing request, concluding the
reclassification of the prior felony convictions after his sentence
had become final did not make Sims eligible for Proposition 47
relief. Sims filed a notice of appeal from the order denying the
motion, and this court appointed counsel for him.2
2 As a threshold matter, Proposition 47 does not authorize
motions to strike sentence enhancements resting on felony
convictions that were reduced to misdemeanors under
section 1170.18; thus the denial of the Sims’s motion to modify
his sentence is not appealable. (See People v. Totari (2002)
28 Cal.4th 876, 886 [orders denying nonstatutory postjudgment
motions are nonappealable].) Nonetheless, we treat Sims’s
purported appeal as an original petition for a writ of habeas
corpus and consider the merits of his challenge to the sentence
enhancements. (See People v. Segura (2008) 44 Cal.4th 921,
928, fn. 4.)

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DISCUSSION
Proposition 47 reclassified as misdemeanors certain drug
and theft-related offenses previously classified as felonies or
wobblers (crimes that can be punished as either felonies or
misdemeanors). (See People v. Valencia (2017) 3 Cal.5th 347, 356
[listing additions and amendments to the Penal Code and Health
and Safety Code under Proposition 47]; People v. Rivera (2015)
233 Cal.App.4th 1085, 1091 [same].) Proposition 47 also added
section 1170.18 to the Penal Code, creating procedures by which
eligible offenders who had completed their sentences could obtain
a redesignation of their felony offense to a misdemeanor
(§ 1170.18, subds. (f), (g)) and eligible offenders currently serving
a sentence for a since-reclassified felony could obtain a recall of
sentence and resentencing (§ 1170.18, subds. (a), (b)). (Valencia,
at p. 355; People v. Morales (2016) 63 Cal.4th 399, 404.)
Subdivision (k) of section 1170.18 provides, “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 with regard to
certain firearm restrictions. Citing subdivision (k), Sims
contends the redesignation of his offenses of petty theft with a
prior from felonies to misdemeanors in 2015 meant that those
crimes no longer qualified as felonies, an essential element of the
prior prison term enhancement under section 667.5,
subdivision (b). Accordingly, he argues, he is entitled to be
resentenced on his 2013 second degree robbery conviction without
those prior prison term enhancements.
The issue presented in Sims’s appeal—whether a defendant
whose conviction is final is entitled to be resentenced if the felony
conviction on which a one-year prior prison term enhancement

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was based has been reclassified as a misdemeanor under
Proposition 47—is currently pending in the California Supreme
Court. (See In re Diaz (2017) 8 Cal.App.5th 812, review granted,
May 10, 2017, S240888; People v. Jones (2016) 1 Cal.App.5th 221,
review granted Sept. 14, 2016, S235901; People v. Carrea (2016)
244 Cal.App.4th 966, review granted, April 27, 2016, S233011.)3
To date, the courts of appeal, including this one, have
uniformly held that a defendant whose conviction is final is not
eligible for resentencing to dismiss a prior prison term
enhancement based on a conviction that has since been reduced
to a misdemeanor under Proposition 47. As our colleagues in
Division Two of the Fourth District explained in People v. Jones,
supra, 1 Cal.App.5th at pages 228-229, review granted
September 14, 2016, the focus of the procedures authorized in
Proposition 47 is the “redesignation of convictions, not
enhancements.” Although the statute specifies a mechanism for
an offender to obtain a retroactive redesignation of his or her
felony conviction to a misdemeanor (§ 1170.18, subd. (f)), “nothing
in the language of section 1170.18 allows or even contemplates
3 Also before the Supreme Court is the separate but related
question whether a defendant who has been sentenced on his or
her commitment offense but whose judgment of conviction is not
yet final is eligible for resentencing if the felony conviction on
which a one-year prior prison term enhancement was based has
been reclassified as a misdemeanor under Proposition 47. (See
People v. Valenzuela (2015) 244 Cal.App.4th 692, review granted
March 30, 2016, S232900 [lead case]; People v. Johnson (2017)
8 Cal.App.5th 111, review granted, April 12, 2017, S240509;
People v. Evans (2016) 6 Cal.App.5th 894, review granted,
Feb. 22, 2017, S239635; People v. Ruff (2016) 244 Cal.App.4th
935, review granted May 11, 2016, S233201.)

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the retroactive redesignation, dismissal, or striking of sentence
enhancements imposed in a final judgment . . . .” (Jones, at
p. 229; see § 1170.18, subd. (n) [nothing in this and related
sections is intended to “diminish or abrogate the finality of
judgments in any case that does not come within the purview of
this section”].) As for subdivision (k)’s instruction to treat
redesignated offenses as misdemeanors “for all purposes,” that
provision applies “at most, prospectively to preclude future or
non-final sentence enhancements based on felony convictions
redesignated as misdemeanors under Proposition 47.” (Jones, at
p. 230; cf. People v. Abdallah (2016) 246 Cal.App.4th 736, 746-747
[prior felony conviction that had been redesignated a
misdemeanor prior to sentencing defendant on a new underlying
felony could not be used to enhance new sentence]; see generally
People v. Brown (2012) 54 Cal.4th 314, 319 [no part of Penal Code
is retroactive, unless it expressly so declares].)
Finding the reasoning in People v. Jones persuasive, we,
again, hold the reclassification of a felony offense to a
misdemeanor under Proposition 47 does not apply to retroactively
invalidate sentence enhancements that became final before
Proposition 47’s passage. The trial court did not err in denying
Sims’s petition.

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DISPOSITION
Sims’s purported appeal from the April 25, 2016 order
denying his petition for recall of sentence and resentencing is
dismissed. Treating the purported appeal as a petition for writ of
habeas corpus, the petition is denied.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.

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