Opinion
D073613
04-09-2018
THE PEOPLE, Plaintiff and Respondent, v. GERALD WAYNE CRUTCHER, Defendant and Appellant.
Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald E. Engler, Chief Assistant Attorney General, Julie L. Garland, Barry Carlton, Sharon L. Rhodes, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FWV1502533) APPEAL from a judgment of the Superior Court of San Bernardino County, Mary E. Fuller, Judge. Affirmed. Robert V. Vallandigham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald E. Engler, Chief Assistant Attorney General, Julie L. Garland, Barry Carlton, Sharon L. Rhodes, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Gerald Wayne Crutcher appeals from a judgment entered after a jury convicted him of three counts of identity theft, three counts of theft of access card information, and one count of burglary. The trial court enhanced defendant's prison sentence by seven years because defendant previously served prison terms for various felony offenses. (Pen. Code § 667.5, subd. (b)). On appeal, defendant argues that Proposition 47 (the Safe Neighborhoods and Schools Act) reclassified certain of these prior felony offenses as misdemeanors. Accordingly, defendant claims that the trial court erred by declining to strike the prior prison term sentencing enhancements based on those reclassified offenses. Defendant further contends that the trial court's ruling violates his equal protection rights under the federal and California Constitutions.
All further statutory references are to the Penal Code, unless otherwise noted.
Defendant might be correct that certain of his prior felony offenses qualify for designation as misdemeanors by virtue of Proposition 47. However, we need not resolve that issue in this appeal because, at the time of his sentencing, defendant had not filed (and as far as this court is aware, still has not filed) applications in the courts that imposed his felony sentences to designate those felonies as misdemeanors. Therefore, Proposition 47 did not require that the trial court strike defendant's prior prison term enhancements. For the same reason, defendant cannot prove that he was treated differently than "similarly situated" individuals for purposes of his equal protection argument. Therefore, we find that the trial court did not err in declining to strike these prior prison term enhancements.
The People also request partial reversal, arguing that the trial court should have enhanced defendant's sentence by eight years, rather than seven years, based on an additional prior felony of which defendant was convicted. Because the People did not appeal the trial court's ruling striking defendant's eighth prior prison term enhancement, we find that the People forfeited the argument they raise on appeal.
Accordingly, we affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, a jury found defendant guilty of seven felony counts, including three counts of identity theft (§ 530.5), three counts of theft of access card information (§ 484e, subd. (d)), and one count of burglary of a vehicle (§ 459). In addition, the jury found defendant guilty of two misdemeanor counts of petty theft (§§ 484, subd. (a), 488) and vandalism (§ 594). The trial court found true allegations that defendant had served eight prior prison terms (§§ 667.5, subd. (b), 668) and had one strike prior (§ 1170.12, subds. (a)-(d)).
During sentencing, defendant requested that the trial court stay the imposition of sentencing for "all or some" of his prior prison term enhancements. In support of this stay request, defendant argued that Proposition 47, which reclassified certain enumerated felonies as misdemeanors, rendered "many" of the felonies that gave rise to defendant's prior prison terms as misdemeanors.
As of the date of defendant's sentencing hearing, defendant had not filed applications to have any of his prior felonies designated as misdemeanors. In the words of defendant's counsel, it was difficult "to get access to copies" of defendant's prior felony convictions, some of which were "quite old" and located "out of [the] county." To this court's knowledge, defendant still has not filed applications to designate any of his prior felonies as misdemeanors.
The trial court declined defendant's stay request and sentenced defendant to a total prison term of 17 years, calculated as follows: five years for the felonies of which defendant was convicted in 2016, doubled to ten years for the strike prior, plus seven one-year enhancements for defendant's prior prison terms. The trial court declined to strike seven of defendant's prior prison term enhancements because there was "no evidence," according to the trial court, that defendant would prevail if he were to apply to designate those felonies as misdemeanors. However, the trial court—apparently exercising its discretion under section 1385—struck an eighth prior prison term enhancement, finding that the felony giving rise to that sentencing enhancement (possession of a controlled substance in violation of Health & Saf. Code, § 11377, subd. (a)) was "clearly" a misdemeanor under Proposition 47.
The trial court did not specify the basis for its order striking defendant's prior prison term enhancement for felony possession of a controlled substance. However, in his sentencing memorandum, defendant explicitly requested that the trial court exercise its discretion under section 1385 to strike defendant's strike prior. Therefore, we infer that the trial court exercised its authority under section 1385 to strike the enhancement at issue.
Section 1385 states, in relevant part: "The judge or magistrate may . . . of his or her own motion . . . and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) Subject to certain restrictions not applicable here, trial courts have authority under section 1385 "to dismiss not only an entire case, but also a part thereof, including the allegation that a defendant has previously been convicted of a felony." (People v. Romero (1996) 13 Cal.App.4th 497, 508.)
Following entry of judgment against defendant, defendant filed a timely notice of appeal. The People, on the other hand, did not appeal.
DISCUSSION
A. Defendant's Statutory Argument
In this appeal, defendant asks that we reverse the judgment on the basis that the trial court erroneously declined to strike seven prior prison term enhancements arising from defendant's prior felonies. Defendant contends that Proposition 47 reclassified "the bulk" of these felonies as misdemeanors and, as a result, the trial court committed reversible error by using his prior felonies as the basis for imposing sentencing enhancements in this case. For the following reasons, we disagree.
On November 4, 2014, the California voters passed Proposition 47, which "changed portions of the Health and Safety and Penal Codes to reduce certain drug possession and theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. The initiative also created a petitioning procedure designed to allow offenders who had previously been convicted of reclassified offenses to have their convictions designated misdemeanors and their sentences reduced. [Citations.] The plain language of the initiative made those changes retroactive, that is Proposition 47 'allows offenders to seek redesignation of and resentencing on felony convictions' even if they 'have become final.' " (People v. Evans (2016) 6 Cal.App.5th 894, 900.)
Accordingly, "[u]nder section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition to recall that sentence and request resentencing. [Citation.] A person who satisfies the statutory criteria shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (People v. Lynall (2015) 233 Cal.App.4th 1102, 1109.)
In addition, a person who already has completed a sentence for a covered felony offense "may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) However, "no relief is available to a person who has previously been convicted of a super strike or an offense requiring registration as a sex offender. [Citation.] If . . . an applicant satisfies the statutory requirements, the court must designate the felony offense as a misdemeanor." (People v. Dehoyos (Mar. 12, 2018, No. S228230) ___ Cal.5th ___ [2018 Cal. Lexis 1496, at *6] (Dehoyos).)
Under section 1170.18, subdivision (k), any felony conviction that has been recalled or designated as a misdemeanor "shall be considered a misdemeanor for all purposes," except for purposes pertaining to firearm possession and ownership. (§ 1170.18, subd. (k), italics added.) Relying on the breadth of the statutory phrase "for all purposes," the California Courts of Appeal have concluded that a recall of a prior felony conviction or a designation of a prior felony as a misdemeanor prohibits a trial court from imposing a sentencing enhancement based on a prior offense, so long as that prior offense has already been recalled or designated as a misdemeanor at the time of sentencing. (See, e.g., People v. Call (2017) 9 Cal.App.5th 856, 862-865; People v. Kindall (2016) 6 Cal.App.5th 1199, 1203-1204; People v. Abdallah (2016) 246 Cal.App.4th 736, 746.)
The Supreme Court also has granted review in a series of cases that present the related issue of whether a prior prison term enhancement must be stricken if, after the defendant has been sentenced and the judgment has become final, the prior conviction upon which the enhancement was based is reduced to a misdemeanor under section 1170.18. (See People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539; People v. Jones (2016) 1 Cal.App.5th 221, review granted Sept. 14, 2016, S235901; Evans, supra, 6 Cal.App.5th 894, review granted Feb. 22, 2017, S239635; and In re Diaz (2017) 8 Cal.App.5th 812, review granted May 10, 2017, S240888.)
In all these appeals, the Courts of Appeal found that Proposition 47 has no retroactive effect on previously imposed section 667.5, subdivision (b) sentence enhancements based on felonies that were reduced to misdemeanors after the judgments in those cases were final. --------
This appeal, however, does not turn on the resolution of that issue. That is because, as defendant admits, defendant did not apply and—as far as we are aware—still has not applied to designate his prior felonies as misdemeanors. As the People correctly note, section 1170.18 makes clear that a defendant with a prior felony conviction is not entitled to automatic redesignation or resentencing of that felony; rather, "for persons who are currently serving a sentence for a felony reduced by Proposition 47, and for those who have completed such a sentence, the remedy lies in the first instance by filing a petition to recall (if currently serving the sentence) or an application to redesignate (if the sentence is completed) in the superior court of conviction." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332; People v. Awad (2015) 238 Cal.App.4th 215, 221-222 ["We ourselves cannot reduce any of appellant's convictions from a felony to a misdemeanor during the pendency of this appeal. Manifestly, that is a task that Proposition 47 (specifically, § 1170.18) vests with the trial court."].)
Indeed, in Dehoyos, the Supreme Court confirmed that a defendant convicted of a felony must follow the procedures set forth in section 1170.18 to receive the retroactive benefits of Proposition 47. In Dehoyos, the defendant was convicted of possession of a controlled substance, a crime that was punishable as a felony at the time of conviction. (Dehoyos, supra, ___ Cal.5th ___ at p. ___ [2018 Cal. Lexis 1496, at *3].) On appeal, the defendant argued that because possession of a controlled substance was a misdemeanor under the newly enacted Proposition 47, the appellate courts—in the first instance—should reduce her conviction to a misdemeanor. (Id. at p. ___ [2018 Cal. Lexis 1496, at *7].) The Dehoyos Court rejected the defendant's argument and found that "resentencing is available to . . . defendants only in accordance with the statutory resentencing procedure in Penal Code section 1170.18." (Id. at p. ___ [2018 Cal. Lexis 1496, at *2].)
As these authorities make clear, Proposition 47 does not automatically reclassify any of defendant's felony convictions as misdemeanors. On the contrary, defendant's felonies will remain felonies, unless and until defendant follows the procedures set forth in section 1170.18 and obtains orders from the convicting courts designating his offenses as misdemeanors. Because defendant has not followed these procedures and has not obtained orders designating his offenses as misdemeanors, we find that the trial court did not err when it declined to strike defendant's prior prison term enhancements. B. Defendant's Equal Protection Argument
Defendant also contends that the trial court's refusal to give Proposition 47 retroactive effect under the circumstances of this case violates the equal protection clauses of the federal and California Constitutions. As far as we can discern, defendant's argument is as follows: section 1170.18, which sets forth the statutory procedure by which a defendant can petition to recall a felony sentence or apply to designate felonies as misdemeanors, impermissibly classifies between two groups of individuals—(1) persons convicted of felonies who successfully petition or apply to have their felonies designated as misdemeanors, and therefore might not (depending on the circumstances) receive prior prison enhancements; and (2) persons convicted of felonies who have not yet petitioned or applied to have their felonies designated as misdemeanors, and therefore do receive prior prison enhancements.
" ' Broadly stated, equal protection of the laws means "that no person or class of persons shall be denied the same protection of the laws [that] is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness." [Citation.]' [Citation.] It does not mean, however, that ' "things . . . different in fact or opinion [must] be treated in law as though they were the same." [Citation.]' [Citation.] '[N]either the Fourteenth Amendment of the Constitution of the United States nor the California Constitution [citations] precludes classification by the Legislature or requires uniform operation of the law with respect to persons who are different.' [Citation.] Thus, . . . a threshold requirement of any meritorious equal protection claim 'is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]' [Citation.]" (People v. Guzman (2005) 35 Cal.4th 577, 591-592.)
After such a showing has been made, "we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' " (People v. Wilkinson (2004) 33 Cal.4th 821, 836.)
In this case, defendant's equal protection argument falters at the first step of the analysis because defendant fails to demonstrate that there has been any type of classification between "similarly situated" individuals. "Once [a] right is exercised, a party is not similarly situated to a party who has yet to exercise the right." (Matthews v. Superior Court (1995) 36 Cal.App.4th 592, 599.) Here, one category of affected individuals consists of persons who have already applied to the trial courts that entered their judgments of conviction, in accordance with section 1170.18. Furthermore, those same individuals have in fact prevailed in their efforts to have their prior felonies designated as misdemeanors. The other category of individuals, on the other hand, has not invoked the statutory procedures set forth in section 1170.18, let alone demonstrated that their prior felonies warrant designation as misdemeanors. These two dissimilar groups of individuals cannot be said to be "similarly situated" for equal protection purposes. (See Matthews, supra, 36 Cal.App.4th at p. 599.) Accordingly, we reject defendant's equal protection argument. C. The People's Claim of Error
As noted above, the trial court struck one prior prison term enhancement arising from defendant's conviction for possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), on the basis that possession of a controlled substance—although it was a felony prior to the passage of Proposition 47—is now classified as a misdemeanor. (§ 1170.18, subds. (a)-(b), Health & Saf. Code, § 11377.) The People did not appeal the judgment, yet request reversal of the trial court's ruling striking the enhancement. Specifically, the People contend that the trial court lacked authority to strike the enhancement because defendant, at the time of sentencing, had not yet filed an application to have his felony designated as a misdemeanor. For the reasons discussed below, we decline to reach the merits of the People's argument.
Section 1238 states that the People may appeal any "order setting aside all or any portion of the indictment, information, or complaint," as well as any "order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense." (§ 1238, subd. (a)(1), (6).) Under either provision, the People may appeal a ruling striking an allegation of prior felony conviction, such as the one at issue here. (People v. Jackson (1991) 1 Cal.App.4th 697, 700-701 ["[A]n order striking or dismissing an allegation of prior conviction is appealable by the People as 'an order setting aside [part of] the indictment, information, or complaint.' "]; People v. Espinoza (1979) 99 Cal.App.3d 59, 66 ["[A]n order striking an allegation of prior conviction set forth in an information for the purpose of enhancing punishment is an appealable order."].) The People, however, did not appeal the trial court's order striking defendant's prior prison enhancement for possession of a controlled substance. On that basis alone, we find the People's argument forfeited. (Mitchell v. Orr (1969) 268 Cal.App.2d 813, 817 ["The failure of the district attorney to have appealed is a tacit accord with the action of the court."].)
Indeed, under nearly identical circumstances, the Supreme Court found that the People's failure to appeal a ruling striking a prior prison term enhancement forecloses a later challenge to that ruling. In People v. Burke (1956) 47 Cal.2d 45, disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, the trial court convicted a defendant of possession of marijuana and, during sentencing, struck a prior prison term enhancement that would have doubled the length of the defendant's sentence. (Burke, supra, 47 Cal.2d at pp. 50-51.) The district attorney did not appeal that ruling, but nevertheless argued in an appeal initiated by the defendant that the criminal possession statute that the defendant had violated precluded the trial court from striking the defendant's prior prison term enhancement. (Id. at p. 51.) The Burke Court declined to reach the merits of the district attorney's argument, finding that "[t]he failure of the People to appeal . . . indicate[d] acquiescence in the order and the sentence which followed." (Id. at p. 54.) As the Burke Court further explained, "the People, if they were successfully to attack" the trial court's ruling, "must have taken an appeal." (Ibid.)
The same is true here. Because the People did not appeal the trial court's ruling striking defendant's eighth prior prison term enhancement, we find that the People forfeited the argument they now raise in this court.
DISPOSITION
The judgment of the trial court is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.