In re Valencia CA2/6

Filed 4/25/16 In re Valencia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

2d Civil No. B267134 In re GABRIEL VALENCIA, (Super. Ct. No. PA042197) (Los Angeles County) on Habeas Corpus.

Gabriel Valencia is currently serving a prison sentence that includes a one- year enhancement for having served a prior prison term for a felony conviction of possessing a controlled substance (Pen. Code,1 § 667.5, subd. (b) [hereafter § 667.5(b)]; Health & Saf. Code, § 11350, subd. (a)). After Proposition 47 was enacted, he successfully applied to have the felony drug possession conviction designated as a misdemeanor. He then moved for resentencing in his current case, claiming that the section 667.5(b) enhancement had to be stricken because it is predicated upon his conviction of an offense that is now a misdemeanor. The court construed the motion as a petition for writ of habeas corpus and denied the petition. Valencia now seeks habeas

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

relief in this court. We conclude the enhancement is unaffected by Proposition 47 and deny the writ. FACTS AND PROCEDURAL HISTORY In 1997, Valencia pled no contest to possessing a controlled substance and admitted serving a prior prison term as provided in section 667.5(b). The court sentenced him to two years and four months in state prison. In 2003, he was convicted of carjacking (§ 215, subd. (a)), robbery (§ 211), grand theft auto (§ 487, subd. (d)), evading a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), and driving under the influence (Veh. Code, § 23152, subd. (a)). Personal firearm use allegations as to the carjacking and robbery counts were also found true (§ 12022.53, subd. (b)). In a bifurcated proceeding, the court found true allegations that Valencia had served five prior prison terms within the meaning of section 667.5(b), including his most recent prison term. Valencia’s sentence of 21 years and four months in state prison includes a one-year enhancement for each of the prior prison term allegations. We affirmed the judgment. (People v. Valencia (Sept. 23, 2004, B168100 [unpub. opn.].) Section 1170.18, which the voters enacted as part of Proposition 47, went into effect in November 2014. In March 2015, Valencia filed an application under subdivision (f) of section 1170.18 to have his prior felony drug conviction designated as a misdemeanor.2 After the court granted the application and designated the conviction as a misdemeanor, Valencia moved for resentencing in the court that imposed his current sentence. He purported to bring the motion under sections 1170.18 and 667.5(b), and asserted that the subject section 667.5(b) enhancement had to be stricken now that the underlying conviction had been designated as a misdemeanor. The parties stipulated that the court could construe the motion as a petition for writ of habeas corpus, which the parties “agree[d] [was] the proper remedy for requested relief as to the prior conviction under Penal Code section 667.5(b) . . . .”