P v. Abdallah (2nd. Dist., Div.7) Prior Pen. C 1170.18 Relief Ablutes a PC 667.5(b) Sentencing Enhancement

This opinion provides an answer to the question of whether relief pursuant to Pen. C. 1170.18 has a detersive effect for purposes of Pen. C 667.5(b) when the relief precedes a felony sentence.

Mr. Abdallah was convicted of a felony DUI in 2002, went to prison, and discharged parole in 2005.  In 2009, Abdallah was arrested for felony possession of methamphetamine, HS 11377(a), and later convicted of same in 2011.  Abdallah did not go to prison for this 2011 felony.  Comes March 2014, and Abdallah is charged with having a gun while in possession of methamphetamine.  June of 2014, a jury convicted Abdallah of this charge.  November 5, 2014, Proposition 47 went into effect, making HS 11377(a) a misdemeanor, and providing a vehicle for persons previously convicted of felony 11377(a) to return to court and have their offenses reduced to misdemeanors.  December 19, 2014, Abdallah was sentenced on the June gun/meth verdict.  Prior (this is important, as we'll see) to pronouncing sentence in the gun/meth case, the trial court granted Abdallah's 1170.18 petition as to his 2011 felony 11377(a) conviction, declaring it a misdemeanor.  Following the 1170.18 order, the trial court sentenced Abdallah to five years in the gun/meth case, consisting of two years on the gun/meth charge, doubled to four years due to Abdallah's prior "strike" conviction, plus one additional year under PC 667.5(b for Abdallah's 2002 prison term.  Abdallah appealed the one year prior prison term.

The Second District reverses.  

The issue concerns the intersection of two statutes.  The first is Penal Code section 667.5(b) which adds one year to a prison sentence if the following is true.

The defendant (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.’

 The second statute is Penal Code section 1170.18 which states that, with an exception inapplicable here, a felony conviction which is recalled and resentenced as a misdemeanor is "a misdemeanor for all purposes".  The question then becomes, does the phrase "for all purposes" include, for a subsequent felony sentence, element (4) in PC 667.5(b).  The panel holds it does, meaning element (4) of 667.5(b) is missing and thus Abdallah's sentence must be reduced by one year.  

The opinion follows the analysis in Ruff and Williams, analogizing 1170.18 to PC 17, another statute by which a felony may be reduced to a misdemeanor.  Those cases found that "for all purposes" means "for all purposes after the 1170.18 relief is ordered".  The reason why Abdallah wins (Ruff and Williams lost) is timing.  While in Ruff and Williams, the misdemeanor reduction occurred after the 667.5(b) enhancement had been imposed as part of a subsequent felony sentence, here the reduction occurred before the subsequent sentence.  Thus at the time Abdallah was sentenced for his gun/meth case, his 2009 meth conviction had not resulted in a felony conviction.  Had the trial judge sentenced Abdallah before addressing the 1170.18 petition, it appears the enhancement would have been just fine.  

You could say, "a switch in time, saved 365."