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Name: People v. Kelly
Case #: F071934
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/01/2018

Where defendant’s two prior convictions were redesignated as misdemeanors prior to his sentencing in a new case, prior prison term enhancements (Pen. Code, 667.5, subdivision (b)) based on these prior convictions could not be imposed. Kelly was convicted of several felonies and the court found true nine prior prison term enhancements under section 667.5. Prior to sentencing in this case, Kelly’s seventh and eighth prior prison term felonies were reduced to misdemeanors under Proposition 47. At sentencing for the current offenses, he argued that he should only be subject to a prior prison term enhancement for his two most recent convictions. The trial court disagreed and imposed eight of the nine prior prison term enhancements. Kelly appealed. Held: Judgment modified to strike seven of the eight prior prison term enhancements, and the matter was remanded for resentencing. Section 667.5, subdivision (b) imposes a one-year enhancement for a prior, separate prison term served on a felony conviction and 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. In People v. Buycks (2018) 5 Cal.5th 857, 871, the California Supreme Court “conclude[d] that Proposition 47’s mandate that the resentenced or redesignated offense ‘be considered a misdemeanor for all purposes’ (§ 1170.18, subd. (k)) permits defendants to challenge felony-based section 667.5 . . . enhancements when the underlying felonies have been subsequently resentenced or redesignated as misdemeanors.” Because Kelly successfully petitioned for the reduction of the felonies underlying his seventh and eighth prior prison term enhancements to misdemeanors prior to his sentencing, these section 667.5, subdivision (b) enhancements could not be imposed.

When a felony conviction is reduced to a misdemeanor under Proposition 47, the prison term associated with that conviction may not be used to bar application of the washout provision of section 667.5, subdivision (b). Kelly also argued that, once his seventh and eighth prior convictions were redesignated to misdemeanors, over five years passed from his release from custody for prior conviction six to when he committed prior conviction nine and, therefore, all of his prior convictions except prior conviction nine washed out under section 667.5, subdivision (b). The Court of Appeal agreed. Under the washout provision, the section 667.5, subdivision (b) enhancement is not imposed if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration. In People v. Warren (2018) 24 Cal.App.5th 899, 915 (also a Fifth District case), the majority held that the language of section 1170.18, subdivision (k), construing recalled or redesignated felonies as “misdemeanors for all purposes,” should be interpreted broadly and the only way to harmonize that language with the literal language of the washout provision of section 667.5 was to reject the language of the washout provision. The court here agreed with the reasoning of Warren and concluded Buycks further supported the decision. “Buycks held that a conviction reduced to a misdemeanor under Proposition 47 could not be considered a felony under section 667.5(b), and we see no basis as to why the application of Proposition 47 should not likewise extend to the washout provision of section 667.5(b).”

Under the facts of this case, trial court did not err under Penal Code section 654 when it imposed a sentence for evading a pursuing peace officer consecutively with a sentence for transportation of methamphetamine. The court imposed a 16-month sentence for evading a pursuing peace officer consecutively with an 8-year sentence for transportation of methamphetamine. Kelly argued the trial court erred in imposing a consecutive sentence for his evading a pursuing peace officer conviction rather than staying the sentence under section 654, which bars multiple punishment for the same act or omission. He argued that the actions forming the bases of the convictions for both charges consisted of the single act of driving the car. The Court of Appeal disagreed. Substantial evidence supported the trial court’s implicit finding that Kelly’s crimes were committed for different objectives and the court, therefore, did not err in ordering a consecutive sentence for the evasion conviction. Prior to encountering law enforcement, there was ample evidence that Kelly was transporting a significant amount of methamphetamine in his car. At that time, his intent was an intent to transport methamphetamine for its eventual sale. Once sheriff’s deputies attempted to conduct a traffic stop, his conduct and objective changed. His new objective was to evade the peace officers, and his driving behavior reflected that intent based on his several traffic violations in his attempt to get away.

The full opinion is available on the court’s website here: