People v. Grayson CA1/3

Filed 11/13/15 P. v. Grayson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A144610 v. ANTHONY AGUILAR GRAYSON, (Lake County Super. Ct. No. CR937669) Defendant and Appellant.

Defendant Anthony Aguilar Grayson appeals the judgment sentencing him to a term of two years eight months in prison consistent with the terms of his negotiated no contest plea to one count of possession for sale of methamphetamine with two prior prison term enhancements. He contends the trial court erred in failing to strike one of the prior prison term enhancements after defendant successfully applied to have the underlying prior conviction reduced to a misdemeanor under Penal Code section 1170.18, subdivision (f),1 which was enacted as part of Proposition 47 on the November 2004 ballot. Because defendant negotiated for a specific sentence, his appeal constitutes an attack on the validity of his plea, for which a certificate of probable cause is required under section 1237.5. Defendant’s failure to obtain a certificate of probable cause forecloses appellate review of his claim.

1 All statutory references are to the Penal Code unless otherwise noted.

1

Background On December 8, 2014, pursuant to a plea bargain with negotiated disposition, defendant pled no contest to one felony count in violation of Health and Safety Code section 11378, and he admitted two prison term enhancements within the meaning of section 667.5, subdivision (b). As part of his plea agreement, defendant was promised a prison sentence of two years eight months consecutive to a four-year four-month sentence imposed for an unrelated Yolo County conviction. On March 16, 2015, the trial court sentenced defendant to the term specified in the plea agreement. The court imposed an eight-month term on the possession charge and one-year enhancements for each of the prior prison terms. The court denied defendant’s motion to strike one of the prison term enhancements. Defendant timely filed a notice of appeal. Discussion Defendant contends the court erred in denying his motion to strike the prior prison term enhancement. He argues that the enhancement under section 667.5. subdivision (b) applies only if the prior conviction was a felony and that after entry of his plea in the present case, but before sentencing, his conviction in the prior case2 was reduced from a felony to a misdemeanor under the provisions of section 1170.18. The one-year enhancement under section 667.5, subdivision (b) applies only to prior felony convictions.3 (People v. Tenner (1993) 6 Cal.4th 559, 563 [“Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that