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Name: In re Diaz
Case #: B269048
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 02/15/2017
Summary

In habeas proceedings, trial court erred by striking prior prison term enhancement where the prior felony underlying the enhancement was reduced to a misdemeanor under Proposition 47 after the sentencing enhancement was imposed. Following a jury trial, petitioner Diaz was sentenced to six years in prison, including one year for a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) based on a 2009 conviction for petty theft with a prior. After his direct appeal in the case, his 2009 offense was redesignated as a misdemeanor under Proposition 47 (Pen. Code, § 1170.18). Diaz filed a habeas petition seeking to have the enhancement based on the 2009 conviction stricken, and the trial court granted the petition. The People appealed. Held: Reversed. Proposition 47 provides a mechanism for certain felonies to be redesignated as misdemeanors. Applying principles of statutory construction, and drawing support from People v. Abdallah (2016) 246 Cal.App.4th 736, the court concluded “that a felony offense redesignated as a misdemeanor under Proposition 47 retains its character as a felony prior to its redesignation, and is treated as a misdemeanor only after the time of redesignation.” As a result, where an offense underlying a prior prison term enhancement is still a felony at the time the sentence on the enhancement is imposed, the prior prison term enhancement should not be stricken if the underlying felony is later reduced to a misdemeanor under Proposition 47. The court disagreed with People v. Evans (2016) 6 Cal.App.5th 894 to the extent it held to the contrary. The court further disagreed with Diaz’s argument that In re Estrada (1965) 63 Cal.2d 740 gives Proposition 47 retroactive effect. The court also concluded that failing to strike the prior prison term enhancement does not violate equal protection. [Editor’s Note: This issue is currently pending in the California Supreme Court. (See People v. Valenzuela (2015) 244 Cal.App.4th 692, review granted 3/30/2016 (S232900/D066907).)]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B269048.PDF