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Name: People v. Diaz
Case #: B255951
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 07/28/2015

In a case where a defendant has not filed a Proposition 47 petition to designate a prior felony conviction as a misdemeanor, Court of Appeal will not strike prior prison term enhancement based on that prior offense. Diaz was convicted of being a felon in possession (Pen. Code, § 29800, subd. (a)(1)). He also admitted a prior strike and two prior prison terms (Pen. Code, § 667.5, subd. (b)). One of the prior prison terms was for a 2009 conviction for petty theft with a prior (Pen. Code, § 666). While his appeal was pending, the voters enacted Proposition 47, which reduced petty theft with a prior to a misdemeanor, with certain exceptions. Diaz argued that because petty theft with a prior is now a misdemeanor under Proposition 47, it cannot be used to enhance his sentence under section 667.5, subdivision (b). Held: Affirmed. Diaz’s contention that Proposition 47 compels striking the prison prior enhancement is premature. Proposition 47 specifically requires individuals who are either currently serving a sentence or who have completed a sentence for a crime that is now a misdemeanor to file a petition in the court that originally sentenced them. Diaz had not done this. Proposition 47 does not permit a Court of Appeal to declare in the first instance that a felony conviction for a crime reduced by Proposition 47 is now a misdemeanor. In re Estrada (1965) 63 Cal.3d 740 and equal protection principles do not change this result. The court also rejected as “unworkable” the stay and limited remand procedure employed by the court in People v. Awad (2015) 238 Cal.App.4th 215. The court expressed no opinion concerning whether a felony conviction which has been designated a misdemeanor under section 1170.18, subdivision (k) can be used to support a section 667.5, subdivision (b) enhancement. (See People v. Flores (1979) 92 Cal.App.3d 461.)