Defendant’s successful Proposition 47 petition for 2009 felony offense required application of “washout rule” so that prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) could not be imposed for a 2002 felony offense. Abdallah was convicted of possession of methamphetamine while armed and other offenses. A prior prison term enhancement was found true based on a 2002 felony conviction that did not washout because he was convicted of another felony in 2009. Prior to sentencing, Proposition 47 passed and Abdallah’s felony for the 2009 offense was reduced to a misdemeanor. Nevertheless, the court imposed a one-year prior prison term enhancement for the 2002 conviction. Abdallah appealed. Held: Enhancement stricken. A prior prison term enhancement requires proof 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. The fourth requirement is referred to as the “washout rule.” 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. After examining relevant case law (see People v. Park (2013) 56 Cal.4th 782), the Court of Appeal concluded that once Abdallah’s 2009 felony was reduced to a misdemeanor under Proposition 47 “for all purposes” (Pen. Code, § 1170.18, subd. (k)), the 2002 prison prior washed out because he remained free from the commission of a new felony for over five years.

Prior prison term enhancement may be stricken where 2009 felony offense was reduced to a misdemeanor after conviction, but before sentencing. The People argued that the prior prison term enhancement should not be stricken because the trial court reduced the earlier offense to a misdemeanor pursuant to Proposition 47 after Abdallah had committed and been convicted of the current crime. The court rejected the argument because “the enhancement in this case, section 667.5, subdivision (b), depends on the status of the prior offense at the time of sentencing . . . .” The court concluded that language in People v. Park (2013) 56 Cal.4th 782 that supported the People’s argument was inapplicable because it addressed a section 667, subdivision (a) enhancement, which depends on the status of the prior offense at the time of conviction.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B262299.PDF