Opinion
G051346
11-14-2016
THE PEOPLE, Plaintiff and Respondent, v. CARLOS BRAVO, JR., Defendant and Appellant.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14HF0213) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part, reversed in part, and remanded with directions. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
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The trial court sentenced defendant Carlos Bravo, Jr., a convicted felon, to six years in prison after a jury found him guilty of five offenses arising from his unlawful possession of a gun and ammunition, and the court found true prior conviction and prior prison term allegations. In his original opening brief defendant argued he was erroneously convicted of two counts of carrying a loaded firearm in a public place (Pen. Code, § 25850, subd. (a)). The Attorney General concedes this point.
Unless otherwise indicated, all further statutory references are to this code.
We granted defendant's request to take judicial notice of a minute order filed in case No. 99WF1086. In that case, during the pendency of the current appeal, the trial court redesignated defendant's prior grand theft conviction as a misdemeanor under the Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18.) The theft conviction was the basis for a prior prison term used to enhance his current sentence. (§ 667.5, subd. (b).) In a supplemental opening brief, defendant argues the additional one year imposed for this prison term must be struck because the underlying offense is now a misdemeanor. The Attorney General disagrees.
We reverse the judgment with directions to vacate defendant's conviction on one count of carrying a loaded firearm in a public place and to strike the additional term imposed for his redesignated theft conviction, and remand the matter to the trial court for resentencing.
FACTS AND PROCEDURAL HISTORY
Since defendant does not challenge the sufficiency of the evidence supporting his conviction, only a brief summary of the underlying facts is required. After California Highway Patrol officers stopped a truck defendant was driving, they learned he did not have a driver's license and the vehicle had been reported as stolen. The officers searched the vehicle, discovering a loaded handgun under the front passenger seat and additional ammunition in a compartment on the driver's side door. It was subsequently discovered the handgun had been stolen as well.
The district attorney charged defendant with five counts related to his possession of the handgun and ammunition. Count 3 alleged defendant was a convicted felon carrying a loaded firearm in a public place. (§ 25850, subds. (a) & (c)(1).) Count 4 charged defendant with carrying a loaded firearm in a public place either knowing or having reason to believe the weapon was stolen. (§ 25850, subds. (a) & (c)(2).) The jury found defendant guilty on all five counts. However, the jury returned a not true finding on the question of whether defendant knew or had reason to know the handgun was stolen. Defendant waived a jury trial on the prior conviction and prior prison term allegations and, at a hearing in September 2014, the trial court found all of them true.
The trial court sentenced defendant to six years in prison. The sentence consisted of the two-year midterm on count 1, felon in possession of a firearm (§§ 29800, subd. (a)(1), 1170, subd. (h)), doubled because of defendant's prior strike convictions (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), plus an additional year each for two of the three alleged prior prison terms. (§ 667.5, subd. (b).) The court imposed concurrent four-year terms on two other counts, stayed sentencing on counts 3 and 4 (§ 654), and, struck the third prior prison term for the purpose of sentencing.
DISCUSSION
1. Defendant's Conviction on Counts 3 and 4
Section 25850, subdivision (a) declares "[a] person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." The penalty for a conviction of this offense depends on existence of other factors. Subdivision (c) lists six circumstances where a conviction under subdivision (a) shall or may be charged as a felony. Two of these circumstances are where the person carrying the loaded firearm "previously has been convicted of any felony" (§ 25850, subd. (c)(1)), and "the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen" (§ 25850, subd. (c)(2)). In all other circumstances, a conviction under this statute constitutes a misdemeanor. (§ 25850, subd. (c)(7).)
Defendant argues he "only committed one violation of section 25850, and [thus] can be convicted only once." The Attorney General agrees.
We reach the same conclusion. Defendant had a single loaded handgun when stopped by highway patrol officers. The prosecution obtained two convictions for his possession of this firearm by alleging in one count that he was a convicted felon (count 3), and alleging in a second count that he knew or had reason to know the handgun was stolen (count 4). The decision to split defendant's possession of a single loaded firearm into two separate charges was error. In People v. Ramon (2009) 175 Cal.App.4th 843, the court construed former section 12031, section 25850's predecessor, declaring the statute created a single offense with "subdivision[s] . . . establish[ing] the penalty based on the circumstances of the offense and the offender." (Id. at p. 857.)
The same is true here. Since there was only one loaded weapon found in the truck defendant was driving, he could only be convicted of a single violation of carrying a loaded firearm in a public place. (§ 25850, subd. (a).) As in Ramon, subdivision (c)(1) and subdivision (c)(2) do not create "separate offenses, but instead are different penalty provisions for the same offense." (People v. Ramon, supra, 175 Cal.App.4th at p. 854.) Further, because the jury rejected the allegation that defendant knew or had reason to know the handgun was stolen, defendant's conviction on count 4 constituted only a misdemeanor. Consequently, we conclude defendant's conviction on count 4 must be vacated. 2. The Prior Prison Term Enhancement for Defendant's Theft Conviction
Section 667.5, subdivision (b) requires a trial court to impose an additional one-year enhancement on a prison sentence if the evidence establishes "the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.) In People v. Prather (1990) 50 Cal.3d 428, the Supreme Court explained this enhancement "is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term. That is, we believe [the statute], fairly read, merely provides a special sentence enhancement for that particular subset of 'prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment." (Id. at p. 440.)
In this case, the information alleged and the trial court found true three prior prison term allegations: (1) A 1998 conviction under former section 12031 (case No. 97NF3757); (2) the 1999 grand theft conviction (case No. 99WF1086); and (3) a 2005 conviction under Vehicle Code section 10851 (case No. 05WF1175). At the sentencing hearing in January 2015, the court imposed one-year terms for the second and third prior prison terms and struck the first allegation for the purpose of sentencing.
The issue presented in this case concerns whether defendant suffered a felony conviction in case No. 99WF1086. At the time defendant pled guilty to grand theft, the trial court treated it as a felony, sentencing him to a 16-month prison term. That conviction retained the status of a felony when defendant was sentenced in this case.
But nine months later, defendant filed a petition in case No. 99WF1086 to have his theft conviction redesignated as a misdemeanor. (§ 1170.18, subd. (f).) The trial court granted the petition. (§ 1170.18, subd. (g).) Subdivision (k) of section 1170.18 declares that, except for defendant's right to own, possess, or control a firearm and the state's authority to prosecute him for any of those actions, his theft conviction "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
In his supplemental opening brief, defendant contends the redesignation of the 1999 theft conviction "entitle[s him] to the benefit of" striking the one-year term imposed for that offense. The Attorney General disagrees, arguing the redesignation of that conviction "operate[s] prospectively" and thus "does not affect [defendant's] previously-imposed sentence in this case."
We conclude that it does because the theft conviction is now deemed a misdemeanor "for all purposes" (§ 1170.18, subd. (k)) and defendant's current sentence is not yet final. Thus, the one-year prison term imposed for the prior theft conviction must be stricken.
The Supreme Court has granted review of several appellate cases holding Proposition 47 does not retroactively invalidate a prior prison term enhancement. (People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; 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.) --------
Section 3 states "[n]o part of it is retroactive, unless expressly so declared." But in In re Estrada (1965) 63 Cal.2d 740, the Supreme Court declined to treat section 3 as a "straitjacket" (ibid.), and declared "[w]here the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent." (Id. at p. 746.) Estrada concluded, "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) Thus, Estrada concluded in cases where the judgment is not final, if an "amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
People v. Flores (1979) 92 Cal.App.3d 461 followed Estrada and reversed the imposition of a prior prison term enhancement based on an earlier felony conviction that had been reduced to a misdemeanor. In Flores, a defendant convicted of selling heroin received a prison sentence that included a one-year prison term enhancement based on a decade old felony conviction of possessing marijuana. However, in 1975, the Legislature reduced possession of marijuana to a misdemeanor. The next year, the Legislature enacted statutes authorizing the destruction of older marijuana possession conviction records, providing any "'record subject to destruction . . . shall not be considered to be accurate, relevant, timely, or complete for any purposes by any agency or person,'" and that "'[n]o public agency shall alter, amend, assess, condition, deny, limit, postpone, qualify, revoke, surcharge, or suspend any certificate, franchise, incident, interest, license, opportunity, permit, privilege, right, or title of any person because of an arrest or conviction'" of possessing marijuana. (Id. at p. 471.) Flores concluded "[i]n view of the express language of the statute and the obvious legislative purpose, it would be unreasonable to hold that the Legislature intended that one who had already served a felony sentence for possession of marijuana should be subjected to the additional criminal sanction of sentence enhancement." (Id. at p. 473.)
Here, the trial court increased defendant's prison sentence by imposing a one-year enhancement for his grand theft conviction in case No. 99WF1086. Recently, and while this appeal was pending, defendant successfully petitioned to have the theft conviction redesignated a misdemeanor under section 1170.18. "The holding in Estrada was founded on the premise that '"[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law"' [citation] and the corollary inference that the Legislature intended the lesser penalty to apply to crimes already committed." (People v. Brown (2012) 54 Cal.4th 314, 325, fn. omitted.) Although section 1170.18 was enacted by the electorate as part of Proposition 47, it is interpreted under the same principles of statutory interpretation that apply to a law enacted by the Legislature. (People v. Morales (2016) 63 Cal.4th 399, 406.)
As a result of the prior theft conviction's redesignation as a misdemeanor, the element of a felony conviction necessary to support the imposition of the enhancement under section 667.5, subdivision (b) was eliminated. Since this enhancement's central focus is the underlying conviction, we agree that the redesignation of the grand theft conviction as a misdemeanor requires the one-year enhancement imposed for that crime as part of defendant's sentence in this case must be stricken.
The Attorney General disagrees with this conclusion and presents several arguments to justify her position. We find all of them lack merit.
One contention is that section 1170.18 does not contain a procedure for striking a prison prior where the underlying conviction has been reduced to a misdemeanor. This argument ignores Proposition 47's purpose which was to "prospectively reduce[d] certain felonies . . . to misdemeanors and[, through the enactment of section 1170.18,] create[] . . . mechanisms for reclassifying felony convictions as misdemeanors . . . ." (People v. Abdallah (2016) 246 Cal.App.4th 736, 743, italics added.) Section 1170.18, subdivision (k) declares that when a prior felony conviction is reclassified or redesignated a misdemeanor, it "shall be considered a misdemeanor for all purposes." And as Estrada recognized, an "amendatory statute" that "mitigates punishment and [does not contain a] saving clause, . . . operate[s] retroactively so that the lighter punishment is imposed" if the judgment is not yet final. (In re Estrada, supra, 63 Cal.2d at p. 748.)
The Attorney General also cites appellate decisions she asserts hold section 667.5, subdivision (b)'s focus is to enhance a defendant's punishment because of his or her status as a recidivist, rather than the criminal conduct underlying the prior prison term. This argument ignores the Supreme Court's contradictory holding in People v. Prather, supra, 50 Cal.3d 428, declaring section 667.5, subdivision (b) "is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term." (Id. at p. 440.) Prather's interpretation was reaffirmed in People v. Jones (1993) 5 Cal.4th 1142, where the court found "unpersuasive" an interpretation of section 667.5, subdivision (b) similar to that urged by the Attorney General. (Id. at p. 1148.)
Finally, the Attorney General relies on decisions holding that, section 1170.18, subdivision (k)'s "misdemeanor for all purposes" language notwithstanding, appellate jurisdiction of a case initially charged as a felony remains in the Court of Appeal even after the conviction is reduced to a misdemeanor under section 1170.18. Those cases recognize the general rule that appellate jurisdiction is determined by whether a defendant is "charged" with a felony or a misdemeanor, and "a defendant [is] . . . 'charge[d]' with a felony" when "an information or indictment is filed or a complaint is certified to the superior court pursuant to section 859a." (People v. Nickerson (2005) 128 Cal.App.4th 33, 38; People v. Morales (2014) 224 Cal.App.4th 1587, 1599 ["once the defendant is held to answer for a felony offense and an information or indictment is filed or a complaint accusing the defendant of a felony is certified to the superior court, the charging document then controls"].) But Estrada's retroactivity rule is concerned with punishment not appellate jurisdiction. It applies to a "statute that represents '"a legislative mitigation of the penalty for a particular crime."'" (People v. Brown, supra, 54 Cal.4th at p. 325.) The fact that defendant was charged by information does not alter our conclusion the enhancement must be stricken.
Alternatively, the Attorney General urges that, in the event we strike the enhancement imposed for defendant's 1999 theft conviction, the case should be remanded to the trial court to allow it to consider imposing an enhancement based on defendant's 1998 prison prior allegation initially struck for the purpose of sentencing. Since this matter must be remanded to vacate defendant's conviction on count 4, we conclude it is appropriate to allow the trial court to also reconsider its ruling on the 1998 prison prior.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with directions to vacate defendant's conviction on count 4, to strike the enhancement imposed for the 1999 grand theft conviction, and to resentence defendant in conformity with this opinion. In all other respects defendant's conviction is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.