Prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) should not be stricken where the underlying felony is reduced to a misdemeanor pursuant to Proposition 47 while the appeal is pending. Ruff was convicted of robbery. His sentence included a prior prison term enhancement based on a felony conviction for drug possession (Health & Saf. Code, § 11377, subd. (a)). While Ruff’s appeal was pending, Proposition 47 passed and he filed a petition to reduce his section 11377 conviction to a misdemeanor, which the trial court granted. On appeal, Ruff argued that the section 667.5, subdivision (b) enhancement should be stricken in light of the fact it had been subsequently reduced to a misdemeanor “for all purposes” pursuant to Proposition 47. Held: Affirmed. Section 3 provides that no part of the Penal Code is retroactive “unless expressly so declared.” In In re Estrada (1965) 63 Cal.2d 740 the court recognized an exception to that general rule: “When the Legislature [or electorate] has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature [or electorate] intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” However, the Court of Appeal concluded Estrada did not apply under the circumstances of this case, reasoning that the voters did not intend for Proposition 47 to apply to recidivist enhancements like prison prior enhancements. The court also distinguished People v. Flores (1979) 92 Cal.App.3d 461 and People v. Park (2013) 56 Cal.4th 782 because in those cases the defendants committed their current offense after the earlier offense was reduced to a misdemeanor. Here, Ruff committed his current offense (robbery) before the earlier offense (drug possession) was reduced to a misdemeanor. The court also rejected Ruff’s equal protection challenge.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F068131.PDF