People v. Smith CA1/5

Filed 6/13/16 P. v. Smith CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A144539

v. (Contra Costa County Super. Ct. No. 051423938) RICHARD EUGENE SMITH,

Defendant and Appellant. ___________________________________/

A jury convicted appellant Richard Eugene Smith of felony second degree burglary (Pen. Code, §§ 459, 460)1 and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377). The trial court found Smith had suffered four prior felony convictions (§ 667.5, subd. (b)), denied his motion to strike two prior convictions (§ 1385), and sentenced him to seven years in state prison. Smith appeals. He contends the court abused its discretion under section 1385 by declining to strike two of his prior convictions. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND The facts underlying Smith’s conviction are not relevant to the issue raised on appeal. The prosecution charged Smith with felony second degree burglary (§§ 459, 460)

1 Unless noted, all further statutory references are to the Penal Code. 1

and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377). The prosecution also alleged Smith had suffered four prior felony convictions (§ 667.5, subd. (b)), including a 2002 conviction in Marin County for receiving stolen property (§ 496, subd. (a)) and a 2003 conviction in San Mateo County for second degree burglary (§ 459). In 2015, a jury convicted Smith of felony second degree burglary (§§ 459, 460) and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377). Following a bench trial, the court found true the prior conviction allegations (§ 667.5, subd. (b)). Before sentencing, Smith moved to have the prior convictions for receiving stolen property and second degree burglary (prior convictions) reduced to misdemeanors pursuant to Proposition 47 (§ 1170.18, subd. (a)).2 At the sentencing hearing, Smith’s counsel clarified he was “not asking the Court to recall these sentences” pursuant to Proposition 47 and acknowledged “those sentences must be recalled in the court that rendered the judgment.” Instead, defense counsel urged the court to “exercise its power” under section 1385 and strike the prior convictions, apparently based on the possibility they could be reduced to misdemeanors under Proposition 47 by “the courts in Marin or San Mateo County.” The court declined to strike the prior convictions. It noted section 667.5, subdivision (b) provided a one-year enhancement “for any sentence to state prison. . . . [¶] The fact that the underlying offense resulting in a prior prison term is now a misdemeanor . . . under Proposition 47 . . . does not change the validity of the enhancement because section 667.5(b) is accounting for recidivist conduct. [¶] . . . The purpose of the section 667.5(b) enhancement is to punish individuals who have shown that they are hardened criminals who are undeterred by the fear of prison.” The court