P v. Venezuela (4th Dist., Div.1): PC1170.18 Relief Doesn't Include Reversing Imposition of a Previously Imposed PC667.5(b) Prison Prior.

A previous post on P v. Marks identified the issue, not ripe in Marks, of what effect, if any, Proposition 47 relief would have upon a conviction's status as a qualifying one year prior under PC 667.5(b).  This opinion provides a partial answer.

March, 2014, Ms. Venezuela saw an unoccupied car idling in a residential driveway.  When the car's owner went to get inside the car, Venezuela pushed her down, got in the car, and took off.  A police chase ensued and Venezuela eventually crashed and was apprehended, a baggie of meth being found in her pocket.  She was charged with carjacking, felony evasion, and felony meth possession (H&S 11377(a)).  A one-year enhancement was alleged under PC 667.5(b) for a 2012 felony conviction for receiving stolen property, PC 496(a).

September 24, 2014, a jury convicted Venezuela of all three charges and the court ruled her 2012 PC 496(a) sentence qualified as a one-year enhancement .   October 24, 2014, Venezuela was sentenced to 6 years, 8 months in prison (5 years on the carjacking, 8 months on the felony evading, one year on the 667.5(b) enhancement, and a 2 year concurrent sentence on the felony meth possession).  

November 5, 2014, the statutory additions and amendments of Proposition 47 went into effect.  November 17, 2014, Venezuela filed a PC 1170.18 petition requesting her 2012 496(a) conviction, the conviction whose sentence was the basis for the one-year enhancement, be reduced to a misdemeanor.  The trial court granted the requested relief and reduced the conviction to a misdemeanor.

In a subsequent appeal, Venezuela raises three arguments, two of which are quickly rejected.  The third issue is the interesting one.  Does the November 17, 2014, order deeming Venezuela's 2012 PC496(a) conviction a misdemeanor invalidate the October 24, 2014, imposition of the one-year enhancement for the felony sentence imposed back in 2012?  

The Fourth District panel answers "no", but the answer appears to be based, at least in part, on the timing of the particular events.  Specifically, Venezuela relied on P v. Park, 56 Cal. 4th 782, in which Parks was convicted of a felony violation of PC 245(a)(1), a wobbler.  Imposition of sentence was suspended and Parks was placed on probation.  After Parks successfully completed probation, the trial court reduced the conviction to a misdemeanor under PC 17B.  After the 17B reduction, Park was convicted of a subsequent felony and the trial court imposed a five-year enhancement, under 667(a), for Parks' previous 245(a)(1) felony conviction.  

The California Supreme Court reversed the trial court and held the five-year PC667(a) enhancement inapplicable under the facts. 

"When the court properly exercises its discretion to reduce a wobbler to a misdemeanor, it has found that felony punishment, and its consequences, are not appropriate for that particular defendant. The court noted, however, that "there is no dispute that . . . defendant would be subject to the section 667(a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." 

Venezuela's problem is her PC 1170.18 reduction occurred after the carjacking conviction.   Had she waited until after November 17, 2014, to commit her carjacking, the opinion reads, to me, her 496(a) conviction could not have been the basis of a PC667.5(b) enhancement and she would have saved herself a year in prison.