People v. Cisneros CA2/6

Filed 3/21/16 P. v. Cisneros CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B263694 (Super. Ct. No. 2012023176) Plaintiff and Respondent, (Ventura County)

v.

ANTHONY MANUEL CISNEROS,

Defendant and Appellant.

Anthony Manuel Cisneros appeals from an order denying his petition to recall his felony sentence and strike a one-year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b).1 The petition was filed pursuant to section 1170.18, which was added to the Penal Code by Proposition 47. The underlying offense for the prior prison term was a felony when appellant was sentenced. It was subsequently reduced to a misdemeanor pursuant to section 1170.18. We affirm because section 1170.18 does not authorize the striking of appellant's prior prison term enhancement. Procedural Background In November 2013 appellant pleaded guilty to the felony offense of evading a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)) and the misdemeanor offense of hit-and-run driving. (Id., § 20002, subd. (a).) He admitted two prior prison term

1 Unless otherwise stated, all statutory references are to the Penal Code. 1

enhancements. (§ 667.5, subd. (b).) The underlying felony for one of the prior prison terms was a 2009 conviction of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). In March 2014 the trial court sentenced appellant to prison for four years: two years for evading a pursuing peace officer plus one year for each of the two prior prison terms. For misdemeanor hit-and-run driving, the court imposed a concurrent term of 180 days in the county jail. When appellant was sentenced in March 2014, a violation of Health and Safety Code section 11377, subdivision (a) was an alternate felony-misdemeanor, also known as a "wobbler." The passage of Proposition 47 in November 2014 made the offense a straight misdemeanor unless the defendant has one or more prior convictions of specified serious felonies, which appellant does not have. In March 2015 the trial court granted appellant's petition to reduce to a misdemeanor his 2009 felony conviction of violating Health and Safety Code section 11377, subdivision (a). The petition was pursuant to section 1170.18, subdivisions (f) and (g), which apply when the petitioner has completed his sentence for a felony conviction that would have been a misdemeanor under Proposition 47. In April 2015 appellant filed a petition requesting that his 2014 felony sentence be recalled and "reduced from four years to three years because one of his prison priors is based on a conviction that has been reduced to a misdemeanor for all purposes."2 Since the prior conviction is no longer a felony, appellant argued that "the one-year term for the prison prior is now unauthorized." (See People v. Tenner (1993) 6 Cal.4th 559, 563 ["Imposition of a sentence enhancement [for a prior prison term] under Penal Code section 667.5 requires proof that the defendant . . . was previously convicted of a felony"].) Appellant alleged that his petition was pursuant to section 1170.18, subdivision (a), which applies when the petitioner is currently serving a sentence for a