Editor’s Note: The California Supreme Court granted review in People v. Buycks, S231765/B262023, People v. Valenzuela, S232900/D066907, and In re Guiomar, S238888/H043114 to resolve similar issues concerning Proposition 47’s effect on felony-based enhancements in resentencing proceedings under Penal Code section 1170.18. The court consolidated the cases for oral argument and opinion, with Buycks as the lead case. The specific issue addressed in each case is summarized more fully below. In short, the court concluded that, in certain circumstances, Proposition 47 permits defendants to challenge felony-based section 667.5 and 12022.1 enhancements when the underlying felonies have been reduced to misdemeanors under Proposition 47. Effective November 5, 2014, Proposition 47 downgraded several drug and theft-related offenses to misdemeanors and permits persons previously convicted of those felonies to have their offenses retroactively reduced to misdemeanors under certain circumstances by filing a petition. Although Proposition 47 does not expressly provide for reduction of felony-based enhancements, it mandates that a reduced conviction “shall be considered a misdemeanor for all purposes.” (Pen. Code, § 1170.18, subd. (k).) Subdivision (k) “plainly extends the retroactive ameliorative effects of Proposition 47 to mitigate any future collateral consequences of a felony conviction that is reduced under the measure.” In Buycks, the California Supreme Court concluded that subdivision (k) also retroactively mitigates the already-imposed collateral consequences of a felony conviction that is subsequently reduced under Proposition 47 in cases where the judgment containing the enhancement was not final on Proposition 47’s effective date. The court distinguished section 1170.18, subdivision (k) from the resentencing and redesignation provisions of Proposition 47 (subdivisions (a) and (f)), which “both clearly reflect an intent to have full retroactive application.” Subdivision (k) does not contain similar language and the court, after analyzing the statutory language, concluded that the In re Estrada (1965) 63 Cal.2d 740 rule permits subdivision (k) to retroactively apply to judgments that were not final when Proposition took effect.
Where the felony underlying a section 667.5, subdivision (b) enhancement has been reduced to a misdemeanor, Proposition 47 and the Estrada rule authorize striking the enhancement if the judgment containing the enhancement was not final on Proposition 47’s effective date. Valenzuela was convicted of carjacking and other offenses. She admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), which was based on a felony conviction for receiving stolen property. While her appeal in the carjacking case was pending, Valenzuela successfully petitioned under Proposition 47 to have her receipt of stolen property conviction reduced to a misdemeanor. On appeal she argued her prior prison term enhancement should be dismissed. The Court of Appeal rejected her argument. The California Supreme Court granted review. Held: Reversed. Section 667.5 provides a one-year enhancement for each prior prison term or county jail term imposed under Penal Code section 1170, subdivision (h), unless the five year “washout” period applies. Though section 667.5 does not state that a prior felony conviction is required, its reference to a prior “prison term” subsumes the existence of a prior felony conviction that justified the imposition of a prison term. The resentencing of a prior felony conviction to a misdemeanor under Proposition 47 negates an element required to support the enhancement. The prior becomes a misdemeanor “for all purposes” (Pen. Code, § 1170.18, subd. (k)) and it can no longer be said the defendant was previously convicted of a felony. As a result, Proposition 47 “can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure.” Because Valenzuela’s judgment in the carjacking case was not final when Proposition 47 took effect, the Estrada rule applied to strike her section 667.5, subdivision (b) prior felony prison term enhancement.
Where one of the felonies underlying an on-bail enhancement (Pen. Code, § 12022.1) has been reduced to a misdemeanor, Proposition 47 ameliorates the enhancement if the judgment containing the enhancement was not final on Proposition 47’s effective date. In November 2013, Buycks pleaded guilty to felony drug possession (Health & Saf. Code, § 11350, subd. (a)). He was placed in a drug treatment program and released on his own recognizance. He later committed new criminal offenses (including felony petty theft with a prior), and was sentenced to state prison. His sentence included an on-bail enhancement (Pen. Code, § 12022.1) because the new felonies were committed while Buycks was released on his own recognizance. After the passage of Proposition 47, he successfully petitioned to reduce the felony drug possession offense to a misdemeanor. Later, the trial court also granted his Proposition 47 petition to reduce his petty theft offense to a misdemeanor, but refused to strike the on-bail enhancement. The Court of Appeal ordered the enhancement stricken. The California Supreme Court granted review. Held: Affirmed based on the full resentencing rule (see below). Under section 12022.1, any person arrested for a secondary felony offense that was alleged to have been committed while that person was released from custody on a primary felony offense shall be subject to a two-year penalty enhancement. When a defendant is convicted of the secondary offense, a section 12022.1 enhancement allegation can be found true. But the imposition of the enhancement must be stayed until the defendant is convicted of the primary offense. (Pen. Code, § 12022.1, subd. (d).) Where the primary felony is reduced to a misdemeanor and that conviction becomes a misdemeanor “for all purposes,” then the on-bail enhancement in a judgment that was not final on Proposition 47’s effective date remains intact but the two-year sentence must be struck and permanently stayed. If the conviction for the secondary offense is reduced to a misdemeanor under Proposition 47, that conviction becomes a misdemeanor for all purposes and the on-bail enhancement in a judgment that was not final on Proposition 47’s effective date must be dismissed.
Defendant’s conviction for failure to appear for a felony charge did not qualify for resentencing under Proposition 47 even though the felony for which he failed to appear was reduced to a misdemeanor. In March 2014, Guiomar pleaded guilty in several cases to robbery, felony burglary, and felony drug possession. He also pleaded guilty to failure to appear while on bail for the felony drug charge (Pen. Code, § 1320.5). After passage of Proposition 47, he successfully petitioned to reduce the felony burglary and drug possession charges to misdemeanors. The court did not reduce the failure to appear conviction. Guiomar’s habeas petitions in the trial and the Court of Appeal were denied. The California Supreme Court granted review. Held: Affirmed. Under section 1320.5, a person who is charged with or convicted of a felony, who fails to appear while released on bail, is guilty of a felony. A section 1320.5 conviction does not require the defendant’s felony charge to have resulted in a felony conviction. Under Proposition 47, a felony conviction that is recalled shall be considered a misdemeanor for all purposes (Pen. Code, § 1170.18, subd. (k)). However, Proposition 47 ameliorates the collateral effects of felony convictions, not the collateral effects of felony charges. Thus, although Guiomar’s felony drug possession conviction became a misdemeanor for all purposes when he was resentenced, that did not alter the fact that he had been charged with a felony when he failed to appear for that felony charge. Guiomar’s felony failure to appear conviction does not qualify for Proposition 47 resentencing.
A trial court that resentences a defendant pursuant to Proposition 47 must also reevaluate the applicability of any felony-based enhancement within the same judgment where the prior felony conviction has been reduced to a misdemeanor, even if the judgment in the case was final before Proposition 47’s effective date. When part of a sentence is stricken on review, a full resentencing on all counts is appropriate on remand so the trial court can exercise its sentencing discretion in light of changed circumstances. The court here referred to this principle as the “full resentencing rule.” Applying this rule in the context of Proposition 47, the court concluded that, at a Proposition 47 resentencing, “the trial court must reevaluate the applicability of any enhancement within the same judgment at that time, so long as that enhancement was predicated on a felony conviction now reduced to a misdemeanor.” Such an enhancement cannot be imposed at resentencing because the reduced conviction “shall be considered a misdemeanor for all purposes.” (Pen. Code, § 1170.18, subd. (k).) In Buycks’ case, the Court of Appeal properly recognized this rule: Buycks’ judgment containing a section 12022.1 enhancement became final one week before Proposition 47 took effect. After Proposition 47 went into effect, his petition to reduce the primary felony offense underlying the section 12022.1 enhancement was granted. Then his Proposition 47 petition to reduce one of the offenses (petty theft with a prior) in the same judgment as the section 12022.1 enhancement was granted. Thus, at the resentencing for the petty theft offense, the trial court was obligated to conduct a full resentencing, and should have stricken the 12022.1 enhancement even though it was final. Additionally, at a Proposition 47 resentencing a defendant may challenge a prior prison term enhancement if the underlying felony has been reduced to a misdemeanor, even if that judgment was final on Proposition 47’s effective date. This application of the full resentencing rule to an otherwise final judgment is consistent with Proposition 47.
Proposition 47’s mandate that a resentenced or redesignated offense “be considered a misdemeanor for all purposes” can properly be enforced by means of a habeas petition for those judgments that were not final when Proposition 47 took effect. The court also concluded that a defendant may file a petition for writ of habeas corpus to strike felony-based enhancements where the underlying felonies have been reduced to misdemeanors for those judgments that were not final when Proposition 47 took effect. Such a petition would be based on the ground the requisite felony has since been reduced to a misdemeanor, thereby invoking the retroactivity principles of Estrada to enforce the “misdemeanor for all purposes” provision of section 1170.18, subdivision (k) on a felony-based enhancement.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S231765.PDF