Opinion
F080931
12-17-2021
In re BENJAMIN GUTIERREZ, On Habeas Corpus.
Benjamin Gutierrez, in pro. per.; and Lynette Moore, under appointment by the Court of Appeal, for Petitioner Benjamin Gutierrez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, Deputy Attorneys General, for Respondent The People.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; application for writ of habeas corpus. Kathryn T. Montejano, Judge.
Benjamin Gutierrez, in pro. per.; and Lynette Moore, under appointment by the Court of Appeal, for Petitioner Benjamin Gutierrez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Ian Whitney, Deputy Attorneys General, for Respondent The People.
OPINION
PEÑA, J.
Benjamin Gutierrez (petitioner) pleaded no contest to four felony charges in exchange for, inter alia, an indicated prison sentence totaling 10 years. The resulting judgment included a felony conviction of methamphetamine possession under a former version of Health and Safety Code section 11377. There were several enhancements, including for a prior prison term for which the underlying offense was second degree burglary.
Petitioner was sentenced in May 2014. Six months later, California voters enacted the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). In 2016, petitioner filed a Proposition 47 petition in the trial court for (1) redesignation of an earlier burglary conviction as a misdemeanor and (2) resentencing in the most recent case based on the reclassification of his drug offense as a misdemeanor. Petitioner argued redesignation of the burglary conviction would further require striking the prior prison term enhancement upon which part of his 10-year sentence was based.
The trial court reduced both convictions to misdemeanors but did not strike the prior prison term enhancement. Instead of appealing the Proposition 47 ruling, petitioner sought habeas corpus relief in the trial court. The trial court did not rule on the habeas corpus petition until 2018, and it was ultimately denied. Petitioner's subsequent appeal was dismissed "as untimely and/or taken from a nonappealable order," but the dismissal was "without prejudice to petitioner filing a petition for writ of habeas corpus in this court." Petitioner has since filed such a petition, and the People concede habeas corpus relief is both available and appropriate. We grant the petition and direct the trial court to resentence petitioner under Proposition 47 and in accordance with People v. Buycks (2018) 5 Cal.5th 857 (Buycks).
BACKGROUND
On April 21, 2014, in Tulare Superior Court case No. VCF290812 (VCF290812), petitioner pleaded no contest to charges of first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1); making criminal threats (id., § 422; count 2); possession of a controlled substance (Health & Saf. Code, former § 11377, subd. (a); count 3); and stalking (Pen. Code, § 646.9, subd. (a); count 4.) Petitioner admitted to having suffered a prior strike conviction (see Pen. Code, §§ 667, subds. (b)-(j), 1170.12) and having served three prior prison terms (id., former § 667.5, subd. (b)). He also admitted the truth of firearm enhancement allegations based on Penal Code section 12022.5.
Petitioner's pleas were made in exchange for the dismissal of three additional charges and an indicated prison sentence of 10 years. On May 19, 2014, petitioner was sentenced according to the plea agreement. Using count 1 as the principal offense, the trial court imposed the lower term of two years and doubled it to four years because of the prior strike. A consecutive three-year term was imposed for the firearm enhancement, and three consecutive one-year terms were imposed for the prison priors. Concurrent sentences were imposed for counts 2-4.
On November 4, 2014, California voters approved Proposition 47, which took effect the following day. (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) The legislation "reduces many common theft- and drug-related offenses from felonies to misdemeanors for offenders who do not have prior convictions for specified violent or serious offenses." (Ibid.) Proposition 47 also created Penal Code section 1170.18 (section 1170.18), under which eligible defendants "who have already completed their felony sentences for Proposition 47 eligible offenses may petition to have their felony convictions be "designated as misdemeanors.' ([Id], subd. (f).)" (Buycks, supra, 5 Cal.5th at p. 876, fn. 4.) "Those currently serving felony sentences for Proposition 47 eligible offenses may petition to have their sentences recalled and be 'resentenced to a misdemeanor.'" (Ibid., quoting Pen. Code, § 1170.18, subd. (b).)
In March 2016, petitioner filed a section 1170.18 petition concerning two cases. He requested the redesignation of a second degree burglary conviction in Tulare Superior Court case No. VCF150683 (VCF150683) to a misdemeanor. The 2006 conviction was reportedly based on petitioner's theft of property valued at less than $400, which would constitute shoplifting under a new statute enacted by Proposition 47, i.e., Penal Code section 459.5. Petitioner also sought to be resentenced on the count 3 drug conviction in VCF290812. In addition, since a prior prison term enhancement in VCF290812 had been based on the burglary conviction in VCF150683, petitioner further requested that the enhancement be stricken.
On April 25, 2016, the trial court granted relief in both cases but declined to strike the prior prison term enhancement. The burglary conviction in VCF150683 was reduced to a misdemeanor as requested. In VCF290812, count 3 was reduced to a misdemeanor and petitioner was resentenced to a one-year jail term (with full credit for time served). Since count 3 had been ordered "to run concurrent to count(s) 1 [and] 2," the aggregate 10-year sentence was left unchanged.
In June 2016, in Tulare Superior Court case No. VHC336799 (VHC336799), petitioner filed a petition for a writ of habeas corpus in connection with the Proposition 47 ruling in VCF290812. It appears petitioner was representing himself at the time, as the record reflects the appointment of counsel on August 3, 2016. The trial court deferred its ruling on the petition until 2018 pending the California Supreme Court's decision in Buycks. On November 7, 2018, the trial court denied the habeas corpus petition because the judgment in VCF290812 had been final prior to the enactment of Proposition 47.
The People, despite opposing the petition, had offered to stipulate to the subject enhancement being stricken on the condition petitioner was resentenced to the same aggregate prison term of 10 years. In making this proposal, the People noted "it would be very easy for the court to get to ten years to comply with the plea agreement." Petitioner rejected the offer and requested a ruling on the merits of his petition.
On November 9, 2018, petitioner filed a notice of appeal regarding the original Proposition 47 rulings and the trial court's subsequent denial of his habeas corpus petition. Petitioner's appellate counsel filed a motion for relief from petitioner's failure to file a notice of appeal in 2016. In a supporting declaration, petitioner attested to having been misled to believe, based on his communications with appointed counsel during the 2016 proceedings, that the initial Proposition 47 ruling did not include a decision on the request to strike the prior prison term enhancement. This court denied the motion and dismissed the appeal "as untimely and/or taken from a nonappealable order." The dismissal order was filed in February 2020.
On March 12, 2020, petitioner filed his current petition for a writ of habeas corpus. The petition alleges the partial relief granted in VCF290812 in 2016 resulted in an unauthorized sentence because, under Buycks and other authorities, the trial court was also required to strike his prior prison term enhancement. In April 2020, this court took judicial notice of the records in the earlier appeal, People v. Gutierrez (Feb. 20, 2020, F078399) [nonpub. order], and we directed the Attorney General to file an informal response to the petition. The informal response was submitted five weeks later.
In August 2020, we issued an order to show cause directing the Attorney General to file a written return. The order further directed the appointment of counsel to represent petitioner in this matter. The Attorney General's verified return, filed September 8, 2020, concedes the availability of habeas corpus relief and submits "[t]he proper remedy in this case is to remand the case for the [superior] court to resentence petitioner."
DISCUSSION
As a general rule, "habeas corpus will not lie as a substitute for an appeal nor as a second appeal." (In re Lessard (1965) 62 Cal.2d 497, 505.) This rule does not bar claims alleging the imposition of an unauthorized sentence, e.g., the improper application of a sentencing enhancement. (In re Harris (1993) 5 Cal.4th 813, 838-839; see In re Andrews (1976) 18 Cal.3d 208, 212 ["Habeas corpus is an appropriate means by which to challenge an unauthorized sentence"] ; In re Birdwell (1996) 50 Cal.App.4th 926, 930 ["the general rule that an unexplained delay in seeking relief may bar habeas corpus relief ... does not apply to bar the correction of an unauthorized sentence"].) Also, the failure to take an expeditious appeal may be excused due to special circumstances. (See People v. Rodriguez (2014) 58 Cal.4th 587, 654; In re Walker (1974) 10 Cal.3d 764, 773.) We therefore accept the People's concession regarding the availability of habeas corpus relief.
In Buycks, the California Supreme Court considered "whether Proposition 47 requires the dismissal of a one-year sentencing enhancement for having served a prior prison term ([Pen. Code, ] § 667.5, subd. (b)) when the felony underlying that prior prison term has been reduced to a misdemeanor under section 1170.18." (Buycks, supra, 5 Cal.5th at p. 871.) The opinion answers this question in the affirmative. (Id. at pp. 889-890.) It also explains that while "nothing in Proposition 47 expressly provides a mechanism for recalling and resentencing a judgment because a prior underlying felony conviction supporting an enhancement in that judgment has been reduced to a misdemeanor[, ]" there are at least two "available procedural mechanisms to strike such enhancements." (Id. at p. 892.)
"[T]he collateral consequences of Proposition 47's mandate to have the redesignated offense 'be considered a misdemeanor for all purposes' can properly be enforced by means of petition for writ of habeas corpus for those judgments that were not final when Proposition 47 took effect." (Buycks, supra, 5 Cal.5th at p. 895, italics added.) The italicized language was the reason for the superior court's denial of the habeas corpus petition in VHC336799. However, such "collateral consequences" may also be enforced in section 1170.18 proceedings involving defendants who are currently serving sentences for "Proposition 47 eligible felony conviction[s]." (Buycks, at pp. 894-895.)
As explained in Buycks, "a person may petition for recall of his or her current sentence under section 1170.18, subdivision (a), upon which the trial court, when it resentences on the eligible felony conviction, must also resentence the defendant generally and must therefore reevaluate the continued applicability of any enhancement based on a prior felony conviction." (Buycks, supra, 5 Cal.5th at p. 894.) "Therefore, at the time of resentencing of a Proposition 47 eligible felony conviction, 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." (Ibid.) This allows a defendant to "challenge any prison prior enhancement in that judgment if the underlying felony has been reduced to a misdemeanor under Proposition 47, notwithstanding the finality of that judgment." (Id. at p. 895.)
The record shows the trial court reduced petitioner's burglary conviction in VCF150683 to a misdemeanor prior to resentencing him on the drug conviction in VCF290812. Therefore, at the time of resentencing in VCF290812, the trial court should have reevaluated the applicability of the enhancement that was based upon the prison term served for the conviction in VCF150683. Failure to do so deprived petitioner of his right to be fully resentenced under Proposition 47 and resulted in an unauthorized sentence. (Buycks, supra, 5 Cal.5th at pp. 893-895; see People v. Shaw (2020) 56 Cal.App.5th 582, 588 [holding retroactively invalid prior prison term enhancements "are unauthorized and must be stricken"].)
DISPOSITION
Let a writ of habeas corpus issue directing the trial court to conduct further Proposition 47 proceedings in Tulare Superior Court case No. VCF290812, which shall include reevaluating the applicability of all enhancements and full resentencing in accordance with Buycks, supra, 5 Cal.5th 857.
WE CONCUR: HILL, P.J., SMITH, J.