P. v. Ortiz



















Filed 3/11/13 P. v. Ortiz CA4/2













NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO GABRIEL ORTIZ, Defendant and Appellant.

E055511 (Super.Ct.No. FVI1002165) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County. John M.
Tomberlin, Judge. Affirmed in part;
reversed in part.

John
L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

A
jury found defendant and appellant Santiago Gabriel Ortiz guilty of href="http://www.fearnotlaw.com/">possession of marijuana for sale (Health
& Saf. Code, § 11359, count 1), carrying a loaded firearm by a gang
member (Pen. Code, § 12031, subd. (a)(2)(C), count 2), href="http://www.mcmillanlaw.com/">street terrorism (Pen. Code,
§ 186.22, subd. (a), count 3), and being a felon in possession of a
firearm (former Pen. Code, § 12021, subd. (a)(1), count 4).href="#_ftn1" name="_ftnref1" title="">^[1] The jury found true the allegations that
counts 1, 2, and 4 were committed for the benefit of a criminal street gang,
within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).href="#_ftn2" name="_ftnref2" title="">^[2] Defendant stipulated to the fact that he had
been previously convicted of two felonies.
He also admitted that he had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d).) The trial court
sentenced him to the upper term of three years on count 1, doubled pursuant to
the strike, plus four years on the section 186.22, subdivision (b)(1)(A)
enhancement. For count 2, the court
imposed a consecutive one year four months.
The court sentenced defendant to six years each on counts 3 and 4, plus
one year four months on the gang enhancement on count 4, but stayed those terms
under section 654. Thus, the total term
imposed was 11 years four months in state
prison. The court gave defendant
credit for time served of 422 days (282 actual plus 140 conduct).

On
appeal, defendant contends that the conviction on count 4 for being a felon in
possession of a firearm (§ 12021, subd. (a)(1)) must be reversed because his
predicate felony conviction had been reduced to a misdemeanor. We agree and reverse.

PROCEDURAL BACKGROUNDhref="#_ftn3" name="_ftnref3" title="">^[3]

On February 7, 2011, the district attorney filed an information alleging
possession of marijuana for sale (Health & Saf. Code, § 11359, count 1),
carrying a loaded firearm by a gang member (Pen. Code, § 12031, subd.
(a)(2)(C), count 2), street terrorism (Pen. Code, § 186.22, subd. (a), count
3), and being a felon in possession of a firearm (Pen. Code, § 12021, subd.
(a)(1), count 4). The allegation in
count 4 was predicated on a 2008 conviction in case No. FVI800345, for a
violation of Penal Code section 186.22, subdivision (a), participation in a href="http://www.mcmillanlaw.com/">criminal street gang.

At
the close of the prosecution’s case at trial, the parties stipulated that in
2008, defendant pled guilty to two felonies (§§ 186.22, subd.
(a), 594, subd. (b)(1)) in case No. FVI800345. The record actually shows that defendant pled
no contest to those two charges and, in exchange, received 270 days in county
jail and three years of probation. The
record also shows that on February 26, 2010, defendant moved to reduce
those two felony convictions to misdemeanors, pursuant to section 17,
subdivision (b). The court granted the
motion, and it ordered defendant’s probation terminated as successfully
completed. The court then ordered a plea
of not guilty entered and dismissed the case pursuant to section 1203.4. The court advised defendant that a strike
conviction would remain on his record.

The
defense relied on the state of the evidence at the close of the prosecution’s
case and rested. Defense counsel then
made a section 1118.1 motion that there was insufficient evidence to support
count 4. Defense counsel moved to
dismiss the charge for being a felon in possession of a firearm, arguing that
defendant was not a felon within the meaning of section 12021 because his 2008
convictions had been reduced to misdemeanors, prior to the arrest in the
instant case. The court denied the motion
and stated the following: “Court
believes that it’s clear that the law requires the restoration of civil rights
and a pardon in order for him to have the right to possess a firearm once he
has been convicted of a felony, so reducing it to a misdemeanor does not have
the effect of . . . him not being a felon, a felon for the possessing
a firearm.”

ANALYSIS

The Court Erred in Denying
Defendant’s Motion to Dismiss Count 4

Defendant
argues that the court erred in denying his motion
to dismiss count 4 for being a felon in possession of a firearm (§ 12021,
subd. (a)), since the prior felony conviction that qualified him for that
charge was reduced to a misdemeanor upon his successful completion of
probation. In other words, he contends
that he was no longer a felon for purposes of section 12021; thus, his
conviction on count 4 must be reversed.
We agree that reduction of his earlier offense to a misdemeanor pursuant
to section 17 precluded it from being used as the predicate offense to the
charge that defendant was a felon in possession of a firearm.

Section
12021, subdivision (a)(1) provides: “Any
person who has been convicted of a felony . . . and who owns,
purchases, receives, or has in possession or under custody or control any
firearm is guilty of a felony.”

Section
17, subdivision (b), provides that “[w]hen 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, . . . it is
a misdemeanor for all purposes
under the following circumstances: [¶]
. . . [¶] (3) When the court
grants probation to a defendant without imposition of sentence and at the time
of granting probation, or on application of the defendant or probation officer
thereafter, the court declares the offense to be a misdemeanor.” (Italics added.) In other words, “[w]hen a defendant is convicted
(whether by a guilty plea or a no contest plea, or at a trial) of a wobbler offense, and is granted
probation without the imposition of a sentence, his or her offense is ‘deemed
a felony’ unless subsequently
‘reduced to a misdemeanor by the sentencing court’ pursuant to section 17,
subdivision (b). [Citations.]” (People
v. Feyrer (2010) 48 Cal.4th 426, 438-439 (Feyrer), italics added.)

“A
grant of probation is intended to afford the defendant an opportunity to
demonstrate over the prescribed probationary term that his or her conduct has
reformed to the degree that punishment for the offense may be mitigated or
waived. Thus, under favorable
circumstances, when punishment has not been imposed, the offense (with certain exceptions) may be reclassified or
nullified. [Citations.] When a
trial court grants probation without imposing a sentence, sections 17 and
1203.4, read together, express the legislative purpose ‘that an alternatively
punishable offense remains a felony . . . until the statutory
rehabilitation procedure has been had, at which time the defendant is restored’
to his or her former legal status in society, subject to use of the felony for
limited purposes in any subsequent criminal proceeding. [Citation.]”
(Feyrer, supra, 48 Cal.4th at pp. 439-440, italics added.)

The
exact issue in the instant case was decided in People v. Gilbreth (2007)
156 Cal.App.4th 53 (Gilbreth). In that case, the defendant appealed his
conviction for possession of a firearm by a felon, arguing that his predicate
felony conviction had been reduced to a misdemeanor upon his successful
completion of probation. (>Id. at p. 57.) The defendant’s conviction for possession of
a firearm by a felon was predicated on a 1999 conviction for evading an
officer. (Veh. Code, § 2800.2, subd.
(a).) The defendant’s sentence of 30
days in county jail for that offense was stayed, and he was placed on three
years’ probation. Then, in June 2001, on
the motion of the district attorney, the defendant’s conviction for evading an
officer was reduced to a misdemeanor under section 17 because he successfully completed
probation. (Gilbreth, at p. 57.)

The
First District reversed the defendant’s conviction for being a felon in
possession of a firearm. In doing so, it
cited Gebremicael v. California Com. on
Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1483 (>Gebremicael), to say that “‘once name=clsccl3>a court has reduced a wobbler to a misdemeanor pursuant to
. . . section 17, the crime is thereafter regarded as a misdemeanor
“for all purposes.” This unambiguous
language means what it says, and unless the Legislature states otherwise, a
person such as [defendant] stands convicted of a misdemeanor, >not a felony, for all purposes upon the
court so declaring.’ [Citation.]” (Gilbreth,
supra, 156 Cal.App.4th at pp. 57-58,
italics added.) Thus, the >Gilbreth court held that, “[a]t the time
[the defendant] was charged in this case, [he] had a prior misdemeanor conviction . . . and that conviction could >not be considered a felony to serve as
the basis for a charge that defendant had violated section 12021.” (Id. at p. 58, italics added.)

The
same is true in the instant case. At the
time defendant was charged in this case, his two previous felony convictions
had been reduced to misdemeanors, pursuant to section 17, subdivision (b), upon
successful completion of his probation.
Thus, his prior misdemeanor convictions could not be considered felonies
to serve as the basis for a charge that he was a felon in possession of a
firearm. (§12021, subd. (a)(1).) (Gilbreth,
supra, 156 Cal.App.4th at p. 58;
see also People v. Lewis (2008) 164
Cal.App.4th 533, 536.)

The
Attorney General contends that defendant was a felon for purposes of section
12021, subdivision (a)(1), notwithstanding the reduction of his convictions to
misdemeanors. The Attorney General
points to the language in section 12021, which states that “[a]ny person who> has been convicted of a felony
. . . and who owns, purchases, receives, or has in possession or
under custody or control any firearm is guilty of a felony.” (Italics added.) The Attorney General asserts “under the plain
language of the statute [defendant] ‘has been convicted of a felony,’” and
therefore, his conviction for violating section 12021, subdivision (a)(1),
should be affirmed. The Attorney General
similarly argues that we should find that Gilbreth
was wrongly decided because the court there neglected to apply the plain
language of section 12021, subdivision (a)(1).

The
problem with the Attorney General’s argument is that it virtually ignores the
plain language of section 17, subdivision (b), which states that a wobbler
offense is “a misdemeanor for all
purposes . . . [¶]
. . . [¶] [w]hen the court
grants probation to a defendant without imposition of sentence and
. . . on application of the defendant . . . thereafter, the
court declares the offense to be a misdemeanor.” (See Gebremicael,
supra, 118 Cal.App.4th at
p. 1483 [“[O]nce a court has reduced a wobbler to a misdemeanor pursuant
to Penal Code section 17, the crime is thereafter regarded as a misdemeanor
‘for all purposes.’ This unambiguous
language means what it says . . . .”].)

The
Attorney General asserts that “despite the language set forth in Penal Code
section 17, at least one court has observed that a felony mitigated to a
misdemeanor per Penal Code section 17, subdivision (b)(3), may still be treated
as a felony.” Curiously, the Attorney
General then cites to Gebremicael for
examples of when a felony reduced to a misdemeanor is still treated as a
felony. However, Gebremicael does not aid its position. We initially note that Gebremicael is one of the authorities upon which >Gilbreth was decided. (See Gilbreth,
supra, 156 Cal.App.4th at
pp. 57-58.) Furthermore, the court
in Gebremicael explained that the
Legislature can exempt specific crimes from the effect of section 17, subdivision
(b). The court stated that “when the
Legislature wants to continue treating a felony reduced to a misdemeanor under
Penal Code section 17 as a felony, it expressly says so, and the court will
treat the person as such only upon those occasions.” (Gebremicael,
supra, 118 Cal.App.4th at
p. 1486.) The Gebremicael court gave two examples. First, Business and Professions Code section
6102, subdivision (b), provides that a felony later reduced to a misdemeanor
under Penal Code section 17, subdivision (b)(3), is still treated as a felony
for purposes of the immediate suspension of an attorney from practicing law, if
the attorney is convicted of a felony. (>Gebremicael, at p. 1486.) Second, “for purposes of the ‘Three Strikes’
law, the Legislature has declared a prior felony conviction proven by the
prosecution as a prior strike retains its status as a felony even if it had
been reduced after initial sentencing to a misdemeanor under Penal Code section
17. (Pen. Code, §§ 667, subd. (d)(1),
1170.12, subd. (b)(1).)”href="#_ftn4"
name="_ftnref4" title="">^[4] (Gebremicael,> at p. 1486.) Here, unlike the examples in >Gebremicael, the Legislature did not
include any such exception to section 17 with regard to section 12021.

Finally,
the Attorney General argues that defendant should still be considered a felon
as a matter of public policy, since the policy behind section 12021 was to
minimize the danger to public safety arising from the free access to firearms,
especially by those who have previously been convicted of a felony. The Attorney General asserts that there was
“a heightened danger to the public” here, as defendant was with other gang
members who had two loaded firearms and over 80 grams of marijuana. The Attorney General posits that, if the
situation would have arisen, defendant would have used a firearm to protect
himself or the drugs. Despite the public
policy behind section 12021, defendant demonstrated over his previous term of
probation that his conduct had reformed to the degree that punishment for his
prior offenses could be waived or mitigated.
(Feyrer, supra, 48 Cal.4th at p. 439.)
Thus, the felony conviction that was alleged as the predicate conviction
for the charge in count 4 was properly reclassified under section 17 as a
misdemeanor. (Ibid.)

The
People have given us no reason to depart from Gilbreth and other established case law. We conclude that, because defendant was not a
felon for purposes of section 12021, subdivision (a), the conviction on count 4
must be reversed.

DISPOSITION

The
conviction on count 4 for being a felon in possession of a firearm (§ 12021,
subd. (a)) is reversed. In all other
respects, we affirm the judgment.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



HOLLENHORST

Acting P. J.





We concur:





RICHLI

J.





KING

J.