People v. Jones CA3

Filed 4/27/16 P. v. Jones CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C079442

Plaintiff and Respondent, (Super. Ct. No. SF127860A)

v.

DENNIS JONES,

Defendant and Appellant.

Defendant Dennis Jones appeals from the trial court’s order denying his Penal Code1 section 1170.18 petition for resentencing on a prior prison term enhancement. He contends that the enhancement became invalid once the prior felony underlying conviction that forms the prison prior was reduced to a misdemeanor pursuant to section 1170.18. We affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND We omit the facts of defendant’s crimes as they are unnecessary to resolve this appeal. In September 2014, defendant was convicted of receiving a stolen motor vehicle with two prior prison term enhancements and sentenced to six years in state prison. The basis of one of the enhancements was a prior conviction for petty theft with a prior. In April 2015, defendant’s petition to reclassify the petty theft with a prior conviction to a misdemeanor was granted. Defendant then filed a section 1170.18 petition for resentencing on the prison prior supported by the petty with a prior conviction. After briefing from both parties, the trial court denied the petition. DISCUSSION Defendant contends that the reduction to a misdemeanor of his petty theft with a prior conviction underlying one of the prior prison term enhancements required the trial court to strike that enhancement. We disagree. Proposition 47, the Safe Neighborhoods and Schools Act (the Act) requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) Among the affected crimes is petty theft with a prior, which is now a misdemeanor barring certain exceptions not relevant here. (See §§ 666, 490.) Since the prior prison term enhancement requires that defendant be convicted of a felony and served a prison term for that conviction (§ 667.5, subd. (b)), this raises the question of whether a prior prison term enhancement based on what is now a misdemeanor conviction survives the Act. We begin by noting that while section 1170.18 allows felony convictions to be reduced to misdemeanors, even when the felony sentence was completed before the passage of the Act, it does not mean the conviction should be viewed as a misdemeanor retroactively. Section 1170.18, subdivision (k) was interpreted in the context of felony