P. v. King

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Filed 3/30/16 P. v. King CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE,
Plaintiff and Respondent,
v.
RICKY EDWARD KING,
Defendant and Appellant.
C078991
(Super. Ct. No. CM027301,
CM030740, CM035962)
Defendant Ricky Edward King appeals from the trial court’s denial of his petition
to resentence him on a prior prison term enhancement (Pen. Code, § 667.5, subd. (b))1
pursuant to section 1170.18. He contends that because the court reduced his prior felony
conviction to a misdemeanor, the conviction can no longer support the prior prison term
enhancement. We find that section 1170.18 does not retroactively invalidate a previously
imposed enhancement when the conviction that supported the enhancement is later
reduced to a misdemeanor. Accordingly, we affirm the trial court’s orders.
1 Undesignated statutory references are to the Penal Code.

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I. BACKGROUND
We dispense with the facts of defendant’s crime as they are unnecessary to resolve
this appeal.
In May of 2012, a jury convicted defendant of first degree burglary. (§ 459) The
trial court sustained a prior prison term allegation (§ 667.5, subd. (b)) and, in January
2013, sentenced defendant to five years in state prison. The information alleged two
prior prison terms, based on two separate prior convictions for possession of a controlled
substance. (Health & Saf. Code, §§ 11350, 11377.) The record does not indicate which
of the prior prison term allegations was sustained by the trial court.
In December of 2014, defendant filed a section 1170.18 petition, requesting
resentencing on his current conviction and enhancement and designation of the two drug
priors as misdemeanors. The trial court granted the petition as to the two priors but
denied it regarding resentencing on the burglary conviction and the prior prison term.
II. DISCUSSION
Defendant contends that he is entitled to resentencing on the prior prison term
enhancement because the offense that supports the prior prison term enhancement was
designated a misdemeanor by the trial court pursuant to Proposition 47. We disagree.
Proposition 47, the Safe Neighborhoods and Schools Act (the Act) requires
“misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the
defendant has prior convictions for specified violent or serious crimes.” (Ballot Pamp.,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) Among the affected crimes are the two
possession of a controlled substance offenses, one of which supports the prior prison term
allegation here, which are now misdemeanors barring certain exceptions not relevant
here. (See Health & Saf. Code, § 11377.) Since the prior prison term enhancement
requires that defendant be convicted of a felony and 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 is now a misdemeanor conviction survives the Act.

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The Act also created section 1170.18, which provides that any person currently
serving a sentence for a conviction of a felony who would have been guilty of a
misdemeanor under the Act may petition for a recall of sentence before the trial court to
request resentencing under the statutory framework as amended by the Act. (§ 1170.18,
subd. (a).) The Act also allows a person who has completed a sentence for a felony that
would now be a misdemeanor under the Act to file an application with the trial court to
have that felony conviction designated as a misdemeanor. (§ 1170.18, subd. (f).) “If the
application satisfies the criteria in subdivision (f), the court shall designate the felony
offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).) Importantly for this
appeal, section 1170.18, subdivision (k), 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 [specified firearm laws].”
(Italics added.)
This language, which is very close to language from section 17 regarding the
reduction of wobblers to misdemeanors, is not necessarily conclusive.2 (People v. Park
(2013) 56 Cal.4th 782, 793-794 (Park).) It has not been read to mean a defendant could
avoid a sentence enhancement by having the prior offense reduced to a misdemeanor
after he committed and was convicted of the present crimes. (Id. at p. 802.) The question
is one of timing.
In the context of felony jurisdiction over criminal appeals, People v. Rivera (2015)
233 Cal.App.4th 1085 (Rivera), held that section 1170.18, subdivision (k) should be
interpreted in the same way as section 17—rendering the offense a misdemeanor going
2 Section 17, subdivision (b) states in pertinent 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 under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances . . . .”

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forward from the date the trial court reduced it, but not retroactively. (Rivera, supra, at
pp. 1095, 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”].) We see no
reason to depart from Rivera. Although Rivera addressed section 1170.18, subdivision
(k) in a different context, its analysis of section 1170.18, subdivision (k) is equally
relevant here.
Defendant relies primarily on Park, supra, 56 Cal.4th 782 and People v. Flores
(1979) 92 Cal.App.3d 461 (Flores). In Park, the Supreme Court held the defendant’s
sentence could not be enhanced under section 667, subdivision (a), because the past
felony conviction had been reduced to a misdemeanor pursuant to section 17, subdivision
(b) before the commission of the instant offense. (Park, supra, at p. 798.) It stated:
“[W]hen a wobbler is reduced to a misdemeanor in accordance with the statutory
procedures, the offense thereafter is deemed a ‘misdemeanor for all purposes,’ except
when the Legislature has specifically directed otherwise.” (Id. at p. 795, italics added.)
Here, defendant committed his current felonies before his prior convictions could be
reduced to a misdemeanor, and the Act directs no differently than section 17. This
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, supra, at p. 802.) Thus,
defendant’s reliance on Park is misplaced.
Defendant’s reliance on Flores fails for the same reasons. In Flores, the defendant
was sentenced to prison following his conviction of selling heroin (Health & Saf. Code,

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§ 11352), and his state prison sentence was enhanced by one year under section 667.5.
(Flores, supra, 92 Cal.App.3d at pp. 464, 470.) The enhancement was based on a prior
felony conviction for possession of marijuana under Health and Safety Code section
11357. (Flores, at p. 470.) Before the defendant was convicted of selling heroin, the
Legislature had reduced the crime of possession of marijuana to a misdemeanor. (Id. at
p. 471.) The Flores court recognized that the legislative changes prevented old marijuana
convictions from being used to support enhancements on later convictions. The changes
operated “to prevent the enhancement of a new sentence.” (Ibid.) Unlike the facts of
Flores, defendant’s sentence was enhanced before Proposition 47 took effect and before
the conviction supporting the enhancement was reduced to a misdemeanor.
When a trial court imposes an enhancement for having served a prior prison term,
the subsequent reduction of the conviction supporting the enhancement to a misdemeanor
does not render the enhancement invalid.
III. DISPOSITION
The order denying defendant’s resentencing petition is affirmed.
/S/
RENNER, J.
We concur:
/S/
RAYE, P. J.
/S/
ROBIE, J.

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