Opinion
H043519
11-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID STEPHEN QUINTERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-11-01277)
This appeal returns to us after remand from the California Supreme Court for reconsideration in light of that court's recent opinion in People v. Buycks (2018) 5 Cal.5th 857. In those three consolidated cases our Supreme Court addressed the retroactive effect of Proposition 47, the Safe Neighborhoods and Schools Act. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Prop. 47, § 14.) Proposition 47 reclassified certain felonies and wobblers as misdemeanors and added Penal Code section 1170.18 to provide a mechanism to allow offenders to petition to have felony convictions resentenced or redesignated as misdemeanors. As relevant to the instant case, the high court held that subdivision (k) of section 1170.18 may be applied retroactively to strike a felony-based section 667.5 enhancement if the judgment was not final on November 5, 2014, when the initiative took effect. Thus, when a sentence enhancement has been based on a prior felony that has been reduced to a misdemeanor under Proposition 47, the trial court has jurisdiction to resentence the defendant accordingly.
All further statutory references are to the Penal Code except as otherwise stated.
In this case the superior court denied defendant's request reduce his 2012 sentence by striking his prior prison term enhancements imposed under section 667.5, subdivision (b) (667.5(b)). Defendant contends that the trial court should have struck the enhancements because the crimes underlying those convictions have been redesignated as misdemeanors pursuant to section 1170.18 following the passage of Proposition 47. Based on the Supreme Court's analysis in Buycks, we conclude that a remand for resentencing is warranted.
Background
After a jury trial, defendant was found guilty of assault with force likely to produce great bodily injury (former § 245, subd. (a)(1), making criminal threats (§ 422), and disobeying a court order (§ 166, subd. (a)(4)). On December 27, 2012, the trial court sentenced defendant to nine years eight months in prison. The sentence included two one-year terms under section 667.5(b), based on a 2001 felony conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a 2004 felony conviction for passing a bad check (§ 476, subd. (a).) This court affirmed the judgment. (People v. Quintero (Dec. 12, 2014, H039290) nonpub. opn.].)
On January 27, 2016, defendant submitted a petition in propria persona, seeking reduction of his sentence under section 1170.18 by striking the enhancements from the record of judgment. The trial court interpreted the request to apply to the principal charges and found that they did not qualify for reduction under Proposition 47. Defendant then filed another petition, which the court denied on April 20, 2016. This appeal focuses on the second order.
Discussion
Defendant contends that it was error to deny his request to strike the enhancements. He argues that Proposition 47 requires reduction of his sentence by two years, because the crimes underlying those enhancements were redesignated as misdemeanors by the passage of Proposition 47. We agree that in light of Buycks, defendant's prior felony convictions, now reclassified as misdemeanors, cannot support a prior prison term enhancement pursuant to section 667.5(b). Defendant was originally sentenced on December 27, 2012, but his appeal remained pending until February 25, 2015, when the Supreme Court denied review. Defendant is in the same position as defendant Valenzuela: because the judgment in her case was not final when Proposition 47 took effect, her section 667.5(b) enhancement had to be struck under In re Estrada (1965) 63 Cal.2d 740. (Buycks, supra, 5 Cal.5th at p. 896.) As the judgment imposing sentence for defendant's conviction and section 667.5(b) enhancements was not final when Proposition 47 took effect on November 5, 2014, he is entitled to have his petition reconsidered in light of Buycks.
This court affirmed the judgment in H039290 on December 12, 2014. Defendant's petition for review was denied on February 25, 2015. --------
Disposition
The postjudgment order is reversed. Upon remand, the superior court is directed to reconsider defendant's petition under section 1170.18, subdivision (k), and resentence him accordingly.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.