People v. Hall CA2/6

Filed 3/21/16 P. v. Hall CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B260628 (Super. Ct. Nos. 2012031834, 2012024033) Plaintiff and Respondent, (Ventura County)

v.

ERIC MONTIEL HALL,

Defendant and Appellant.

Eric Montiel Hall appeals from an order denying his petition to recall his felony sentence and strike prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b).1 The petition was pursuant to section 1170.18, added to the Penal Code by Proposition 47. The underlying offenses for the prior prison terms were felonies when appellant was sentenced. They were subsequently reduced to misdemeanors pursuant to section 1170.18. We affirm because section 1170.18 does not authorize the striking of prior prison term enhancements. Procedural Background In case number 2012031834 (hereafter case no. 834), a jury found appellant guilty of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and transporting methamphetamine. (Id., § 11379, subd. (a).) Appellant admitted five prior prison term enhancements. (§ 667.5, subd. (b).) In October 2013 he was sentenced to an

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

aggregate term of nine years, including a consecutive one-year term for each of the five prior prison term enhancements. The trial court ordered appellant to serve the first six years of his sentence in county jail and the remaining three years on mandatory supervision. (§ 1170, subd. (h)(5)(B).) In case number 2012024033 (hereafter case no. 033), appellant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted the same five prior prison term enhancements that he had admitted in case no. 834. On the same day that appellant was sentenced in case no. 834, in case no. 033 he was sentenced to county jail for two years, to be served concurrently with the sentence imposed in case no. 834. In case no. 033 the court stayed the five prior prison term enhancements pursuant to section 654. When appellant was sentenced for possession of cocaine in case no. 033, the offense was a felony. The passage of Proposition 47 in November 2014 made the offense a misdemeanor unless the defendant has one or more prior convictions of specified serious felonies, which appellant does not have. Appellant prepared petitions requesting resentencing in case nos. 834 and 033 pursuant to section 1170.18. In December 2014 the trial court conducted a hearing on the petitions. In case no. 033 the trial court granted the petition and resentenced appellant to one year in county jail for misdemeanor possession of cocaine. It gave appellant credit for time served of one year and ordered him to be discharged from custody in case no. 033. In case no. 834 appellant argued that the court should strike three prior prison term enhancements because the felony convictions underlying the prison terms would have been misdemeanors if Proposition 47 had been in effect at the time of the convictions. (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"].) The trial court denied the petition.