People v. Stout CA3

Filed 8/9/16 P. v. Stout CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Siskiyou) ----

THE PEOPLE,

Plaintiff and Respondent, C079411

v. (Super. Ct. No. MCYKCRBF111664) DOUGLAS JEREMIAH STOUT,

Defendant and Appellant.

Defendant Douglas Jeremiah Stout appeals from the trial court’s order denying his Penal Code section 1170.181 petition for resentencing on a prior prison term. He contends that when the prior felony conviction that forms the basis of the prison prior is reduced to a misdemeanor, the enhancement is then invalid. We conclude section 1170.18 does not apply retroactively to invalidate a previously imposed enhancement when the conviction that supported the enhancement is later reduced to a misdemeanor. We affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND2 In 2012, following a jury trial, defendant was convicted of felony evading an officer (Veh. Code, § 2800.2, subd. (a)) and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) along with five prior prison term enhancements (§ 667.5, subd. (b)). One of the prior prison term enhancements was based on a 2006 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in Shasta County. Defendant was sentenced to serve an eight-year four-month prison term. Defendant subsequently filed a section 1170.18 petition in Shasta County Superior Court to designate the possession prior a misdemeanor, which the court granted. He then filed a section 1170.18 petition in this case, asking the court to resentence him on the prior prison term that was based on the 2006 possession conviction. The trial court denied the petition. DISCUSSION Defendant contends he is entitled to resentencing on the prior prison term enhancement based on the possession of a controlled substance because that possession conviction was designated a misdemeanor by the Shasta County Superior Court pursuant to Proposition 47.3 We disagree. Proposition 47, the Safe Neighborhoods and Schools Act (the Act) that was enacted three days before the second sentencing hearing, 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.