Following the November 2014 passage of Proposition 47, Acosta petitioned the trial court to reduce two of his three felonies in the instant case to misdemeanors. He also petitioned the trial court to reduce to misdemeanors, three of the six cases for which he had served the prior prison terms that formed the basis for his 667.5(b) review. The trial court granted all petitions. It then resentenced Acosta on the remaining felony to two years, adding six years for the prior prison terms, for a total of eight years.
Acosta appeals on two grounds. First, that the six prior prison term enhancements had been dismissed on the case containing the surviving felony. Second, that three of the six prior prison terms could no qualified under 667.5(b) because they were reduced to misdemeanors.
The Second District affirms.
The first portion of the opinion is solid judicial writing. Prior prison terms, under 667.5(b), may only be applied once in an aggregate sentence. Therefore, while the court said it "dismissed" the 667.5(b) in two of the three cases, it really only followed the rule that they could only apply once to the total sentence. Since the 667.5(b) enhancements were still valid as to the surviving felony, the trial court did nothing wrong in applying them upon resentencing.
So far for the good.
The second portion is very disappointing, not because of the result (which is valid IMEO), but because the analysis is nothing more than a tautology surrounded by a false statement regarding holdings by sister courts (and a typo).
The issue is what effect, if any, have the misdemeanor reductions in the three 667.5(b) cases. First, the opinion states the following.
This issue is a familiar one as there has been a spate of appellate opinions, unanimously holding that a prior prison term 6 enhancement is not affected by Proposition 47. (See e.g., People v. Valenzuela (2016) formerly 244 Cal.App.4th 692, review granted Mar. 7, 2016, S232900.)This is just wrong (and we expect Appellate justices to know so). P v. Abdallah, 246 Cal. App. 4th 736, held that when a Proposition 47 reduction occurs before the commission of a felony, an otherwise qualifying prison term served for the reduced offense can no longer be the basis for a 667.5(b) enhancement.
Following this proud bit of casuistry, the opinion states, in unlettered English, that its forthcoming statutory interpretation is "straight forward" (straightforward is a closed compound noun). The subsequent interpretation is indeed worthy of its introduction. The phrase to be interpreted is:
Any felony conviction that is . . . designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm . . . .With no examination of prior opinions on the issue and no examination of analogous statutes (PC 17B), the opinion proclaims the unambiguous meaning of "for all purposes" is "for all purposes pertaining only to the simple status of the conviction". The panel justifies adding this qualifying phrase to the statute's language by invoking the judicial cannon that courts should not read into statutes language that is not there (I jest not). This entree of haute judicia is then garnished with the indefensible and imbecilic argument that lawmakers may not pass laws that result in a "windfall" for a defendant.
Again, the result is fine, it comports with all the previously published cases (even Abdallah, as the reductions here were ex post to the surviving felony). But the analysis is disturbingly inadequate. Read the statutory analysis in Abdallah, Carrera, and Valenzuela, and tell me if you disagree.
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