Filed 9/20/17 P. v. Hoffman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Vincent Michael Hoffman was convicted by guilty plea of preparing false evidence for a fraudulent purpose. On appeal, he contends the trial court erred in imposing prior prison term enhancements because the felonies underlying those enhancements had been designated as misdemeanors pursuant to Proposition 47. The People concede and we agree. Accordingly, we strike the two prior prison term enhancements.

PROCEDURAL SUMMARY

On October 9, 2007, defendant was convicted of two counts of receiving stolen property (Pen. Code, § 496)[1] and possession of a firearm by a felon (former § 12021). He was sentenced to five years in prison.

On October 5, 2012, defendant was convicted of two counts of felony petty theft with a prior (§ 666). He was granted five years’ probation with 60 days in jail.

On May 26, 2015, in the current case, the Tuolumne County District Attorney charged defendant with preparing false evidence for a fraudulent purpose (§ 134). The information further alleged he had served two prior prison terms (§ 667.5, subd. (b)) (§667.5(b)) based on the two 2007 convictions for receiving stolen property. The information also alleged he had suffered seven prior felony convictions (§ 1203, subd. (e)(4)).

On June 30, 2015, defendant petitioned the trial court to reduce the two 2012 felony petty theft convictions to misdemeanors pursuant to Proposition 47 (§ 1170.18). The trial court granted the petition and reduced the convictions to misdemeanors.

On October 26, 2015, defendant pled guilty to the charge of preparing false documentary evidence for a fraudulent purpose. He denied the prior prison term allegations and requested a court trial on them.

On December 18, 2015, defendant filed a letter brief, requesting that the trial court find his prior prison term enhancements had “washed out” because the subsequent convictions occurring within the five-year period after the prior prison terms were no longer felonies.

On February 2, 2016, the trial court disagreed and found the two prior prison term allegations true.

On March 14, 2016, the trial court suspended imposition of sentence and granted defendant five years of probation with eight months of jail time.

On March 30, 2016, defendant filed a notice of appeal.

DISCUSSION

“Imposition of a sentence enhancement under [section] 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.”[2] (People v. Tenner (1993) 6 Cal.4th 559, 563, italics added.)

“The last [element] is commonly referred to as the ‘washout rule’ where a prior felony conviction and prison term can be ‘washed out’ or nullified for the purposes of section 667.5.” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).) “According to the ‘washout’ rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. [Citations.] Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the ‘washout’ rule to apply. This means that for the prosecution to prevent application of the ‘washout’ rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period. (People v. Elmore (1990) 225 Cal.App.3d 953, 956-957 [‘washout’ period does not apply if defendant committed a new offense resulting in a felony conviction within five years even without a showing he was incarcerated in state prison as a result of the conviction]; People v. Young (1987) 192 Cal.App.3d 812, 816 [‘We hold that the statute requires a convicted felon to remain free from prison custody and the commission of an offense resulting in a felony conviction for a single, continuous five‑year period in order to avoid the enhancement provided in section 667.5, subdivision (b)’]; and People v. Jackson (1983) 143 Cal.App.3d 627, 631 [‘It is

self-evident that no five-year period elapsed in which appellant was free from both prison custody and the commission of offenses resulting in felony convictions as required by section 667.5, subdivision (b) in order to avoid enhancement’].)” (Ibid.)

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.) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)

“Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a misdemeanor … unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b)[, italics added].)” (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.) Furthermore, “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)

In this case, the parties agree that defendant’s 2012 felony convictions (that occurred during the washout period after his 2007 prison term) were reduced to misdemeanors under Proposition 47 before he was sentenced in the current case. Defendant asserts that the facts therefore no longer satisfied the fourth element of section 667.5(b). As the parties recognize, this issue has now been resolved by People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah).

In Abdallah, the trial court sentenced the defendant in 2014 for several drug possession and firearm convictions, and imposed a one-year enhancement for a prior prison term under section 667.5(b). (Abdallah, supra, 246 Cal.App.4th at pp. 739-740.) The court imposed the prison prior term enhancement because the defendant had served a prison term on a 2002 conviction, was released, and then had been arrested less than five years later in 2009 (during the washout period) for a new felony, for which he was convicted in 2011 and placed on probation. (Id. at p. 740.) Prior to being sentenced on the current 2014 offenses, the trial court reduced the 2011 conviction to a misdemeanor under Proposition 47. (Ibid.) Once the 2011 felony had been reduced to a misdemeanor, the court found the one-year sentence enhancement for the 2002 conviction could not be imposed because the 2011 conviction was no longer a felony and the defendant never served any time in prison for that conviction. (Id. at pp. 740-741.) In other words, the washout period had not been stopped by the 2011 conviction. The court held that because the defendant’s prior conviction already had been reduced to a misdemeanor by the time of his sentencing, he “was not a person who had committed ‘an offense which result[ed] in a felony conviction’ within five years after his release on parole for his prior conviction” within the meaning of section 667.5(b)’s washing out requirement; therefore, the court struck the enhancement that relied on that conviction. (Abdallah, supra, at p. 746.)

The Abdallah court explained that “Proposition 47 borrowed the ‘for all purposes’ language of section 1170.18, subdivision (k), from section 17, subdivision (b), which describes the effect of a judicial declaration that a wobbler offense is a misdemeanor. (See § 17, subd. (b)(3) [where a crime is a wobbler, ‘it is a misdemeanor for all purposes … [w]hen … the court declares the offense to be a misdemeanor’]; [citations].)” (Abdallah, supra, 246 Cal.App.4th at p. 745.) The court further explained that “n [i]People v. Park [(2013)] 56 Cal.4th 782 (Park) the trial court enhanced the defendant’s sentence by five years under section 667, subdivision (a), because of a prior serious felony conviction. [Citation.] Before sentencing, however, another trial court had reduced the prior offense to a misdemeanor under section 17, subdivision (b), and then dismissed it pursuant to section 1203.4, subdivision (a)(1). [Citation.] The Supreme Court held that ‘when the court in the prior proceeding properly exercised its discretion by reducing the [felony] 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.’ [Citation.] The court observed that ‘courts have long recognized that reduction of a wobbler to a misdemeanor under what is now section 17(b) generally precludes its use as a prior felony conviction in a subsequent prosecution.’ ” (Abdallah, supra, at pp. 745-746.)

Abdallah concluded that “[t]he same logic applies to sections 667.5, subdivision (b), and 1170.18, subdivision (k). [The fourth element of] [s]ection 667.5, subdivision (b) excludes from the prior prison term enhancement a defendant who has neither committed ‘an offense which results in a felony conviction’ nor been subject to ‘[a prison term] within five years of release on parole or official discharge from another felony conviction resulting in the defendant’s incarceration. Once the trial court recalled [the defendant’s] 2011 felony sentence and resentenced him to a misdemeanor, section 1170.18, subdivision (k), reclassified that conviction as a misdemeanor ‘for all purposes.’ [Citation.] Therefore, at the time of sentencing …, [the defendant] was not a person who had committed ‘an offense which result[ed] in a felony conviction’ within five years after his release on parole for his prior conviction. [Citations.] Thus, the trial court erred by imposing the one-year sentence enhancement under section 667.5, subdivision (b).”[3] (Abdallah, supra, 246 Cal.App.4th at p. 746.)

Abdallah is applicable to the present case. Defendant’s subsequent felonies were reduced to misdemeanors before he was sentenced on the current case, and he did not serve prison time for those offenses. Thus, the washout period was completed and the prior prison term enhancement was unsupported. The trial court erred in imposing the enhancements.

DISPOSITION

The two one-year prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b) are stricken. As so modified, the judgment is affirmed. The trial court is directed to forward certified copies of the amended abstract of judgment to the appropriate authorities.