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Name: People v. Lucas, II
Case #: G045634
Court: CA Court of Appeal
District 3 DCA
Division: 2
Opinion Date: 03/15/2013
Summary

A prior conviction for a serious felony remains available for use as a future sentence enhancement under Penal Code section 667, subdivision (a), despite subsequent reduction of the serious felony to a misdemeanor under Penal Code section 17, subdivision (b), and dismissal under Penal Code section 1203.4. Appellant was convicted by jury trial of aggravated assault and in a bifurcated court trial two prior serious felony convictions were found to be true. The court struck one of the “strike” convictions and sentenced appellant to a two-year term for the assault, doubled to four years because of the strike, plus five years for each of the prior serious felony prior, for an aggregate term of 14 years. The court rejected appellant’s argument that one of the prior serious felony convictions was unavailable for enhancement purposes under Penal Code section 667, subdivision (a), because the felony had been reduced to a misdemeanor under Penal Code section 17, and dismissed under Penal Code section 1203.4. The express language of sections 667, subdivision (a) and 1203.4, subdivision (a)(1), and the provisions of Proposition 8 make it clear that it is the conviction of the offense as a felony, and not the subsequent reduction of the offense to a misdemeanor, that controls. [Note: This issue is currently pending before the California Supreme Court in People v. Park, review granted Aug. 10, 2011, S193938.]