California Court of Appeal Feb 17, 2016 No. D068424Unpublished
Filed 2/17/16 P. v. King CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068424
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234016)
TERRANCE KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Nancy E. Olsen, 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, Charles C. Ragland, Marvin
Mizell and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Terrance King appeals from an order denying his petition to dismiss a prior prison
term enhancement from his sentence. He contends the prison prior sentence
enhancement must be stricken because, in May 2015, the trial court re-designated the
2007 prior felony conviction on which the prison prior enhancement was based to a
misdemeanor pursuant to Penal Code, section 1170.18, subdivision (k). (Undesignated
that case, the Court considered defendant's request to strike a prison prior enhancement
based on a felony conviction that had been reduced to a misdemeanor under section
1170.18 after the imposition of sentence on the current offense. (Valenzuela, supra, at
___ [pp. 20, 22].) The defendant argued that section 1170.18, subdivision (k), " 'suggests
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the electorate wanted eligible offenders like [her] to be shielded from the collateral
consequences of prior prison terms stemming from felonies that the law now recognizes
as misdemeanors.' " (Id. at p. 22.) This Court rejected the argument, concluding
"[s]ection 1170.18 provides a mechanism for reducing felony convictions to
misdemeanors, but contains no procedure for striking a prison prior if the felony
underlying the enhancement has subsequently been reduced to a misdemeanor." (Ibid.)
The Court reasoned that "[n]othing in th[e] language [of section 1170.18, subdivision (k)]
or the ballot materials for Proposition 47 indicates that this provision was intended to
have the retroactive collateral consequences that [the defendant] advances. To the
contrary, . . . the procedures set forth in section 1170.18 that must be followed to obtain
the resentencing and reclassification benefits of Proposition 47 indicate the electorate's
intent for a specific, limited prospective application of the relief available under the new
law." (Ibid.)
Like King, the defendant in Valenzuela, relied on People v. Park (2013) 56
Cal.4th 782, 796 (Park) and People v. Flores (1979) 92 Cal.App.3d 461 (Flores) to
support her assertion that her sentence must be reduced under section 1170.18,
subdivision (k). In Park, our high court noted that "[w]hen the court properly exercises
its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment,
and its consequences, are not appropriate for that particular defendant. . . . [B]y virtue of
the court's proper exercise of discretion, neither is such defendant a member of the class
of criminals convicted of a prior serious felony whom the voters intended to subject to
increased punishment for a subsequent offense." (Park, at pp. 801-802.) In Flores, the
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court considered a 1975 statutory amendment reducing marijuana possession to a
misdemeanor and held that it was error to use a felony marijuana possession conviction to
impose a sentence enhancement. (Flores, at pp. 470, 474.)
Similarly to the defendant in Valenzuela, King's reliance on Park and Flores is
misplaced because the felony convictions that served as the basis for sentence
enhancements in those cases were reduced to misdemeanors before the defendant
committed and was convicted of the offense subject to the current appeal. (Valenzuela
[Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 23].) In the case before us, there is no
dispute that King's drug offense conviction was reduced to a misdemeanor after he
committed and was sentenced for the current evading an officer offense. Thus, Park and
Flores are inapplicable. Moreover, Park supports our conclusion as the Supreme Court
stated in that case that "there is no dispute that . . . defendant would be subject to the
[sentence] enhancement had he committed and been convicted of the present crimes
before the court reduced the earlier offense to a misdemeanor." (Park, supra, 56 Cal.4th
at p. 802, italics added.)
King has not pointed to anything in the language of section 1170.18 or Proposition
47 ballot materials that overcomes the presumed prospective effect of any provision
added to the Penal Code. (§ 3.) Further, King has not pointed to any authority
convincing us to depart from the reasoning and conclusion in Valenzuela that section
1170.18 does not require the court to strike a prison prior enhancement that is based on a
felony conviction that was reduced to a misdemeanor after the defendant committed and
was convicted of the current offense.
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II. Equal Protection Claim
King argues that failure to strike the one-year sentence enhancement for the
prison prior which was re-designated a misdemeanor violates his right to equal protection
under the federal and state constitutions. He argues that "no rational basis can justify
[his] exclusion from the benefits of Proposition 47, since he meets the requirements for
relief and only differs from other possession offenders by the fact that his criminal
judgment was issued prior to the passage of the initiative." This argument was rejected in
Valenzuela [Feb. 3, 2016, D066907] ___ Cal.App.4th ___ [p. 25]. We reject it for the
same reason that " ' "[t]he Legislature properly may specify that . . . statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written." [Citations.] The voters have
the same prerogative." ' " (Ibid.) Accordingly, failure to strike the prison prior
enhancement does not constitute an equal protection violation. (Ibid.)
DISPOSITION
The order is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a prison prior sentence enhancement under Penal Code section 667.5, subdivision (b) does not need to be stricken even if the underlying felony conviction is subsequently re-designated as a misdemeanor under Proposition 47.
Issues
Whether a prison prior enhancement must be stricken if the underlying felony conviction is later re-designated as a misdemeanor under Penal Code section 1170.18.
Whether the failure to strike such an enhancement violates the defendant's right to equal protection.