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People v. Jones

California Court of Appeals, Fourth District, Second Division

July 7, 2016

THE PEOPLE, Plaintiff and Respondent,
CASEY JONES, JR., Defendant and Appellant.

         APPEAL from the Superior Court of San Bernardino County No. FVA1301982. Michael A. Smith, Judge.

          William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.


          SLOUGH J.

         Defendant and appellant, Casey Jones, Jr., appeals an order denying his petition to designate his conviction for burglary (Pen. Code, § 459) as misdemeanor shoplifting (§ 459.5)[1] under section 1170.18, which California voters enacted as part of The Safe Neighborhoods and Schools Act (Proposition 47). Jones also appeals the order denying his motion to strike the one-year prison prior enhancement (§ 667.5, subd. (b)) imposed in this case on the basis of a conviction in a prior case which the superior court had previously designated a misdemeanor. Jones contends the superior court erred by inadvertently denying his petition to designate the burglary conviction a misdemeanor and by denying his motion to strike the enhancement because the redesignated misdemeanor conviction could not have supported an enhancement had Proposition 47 been in effect at the time of his offenses.

         Proposition 47 creates a procedure for offenders to obtain reclassification and resentencing on convictions on a retroactive basis, but does not provide a similar procedure for striking or dismissing sentence enhancements retroactively. As a result, we conclude the superior court did not err in refusing to strike the prison prior enhancement. However, we conclude the superior court erred in summarily denying Jones’s petition to have his burglary conviction reclassified as misdemeanor shoplifting. We therefore affirm in part, reverse in part, and remand for further proceedings.


         In case No. FVA1301982, prosecutors charged Jones with one felony count of commercial burglary (§ 459, count 1), one felony count of petty theft with three priors (§ 666, subd. (a), count 2), one misdemeanor count of assault on a police animal (§ 600, subd. (a), count 3), and two felony counts of resisting an executive officer (§ 69, counts 4, 5). The complaint alleged Jones had two prison priors. (§ 667.5, subd. (b).)

         In the commercial burglary count, the prosecution alleged “On or about November 6, 2013... the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459, a felony, was committed by Casey Jones Jr, who did enter a commercial building occupied by Walgreens with the intent to commit larceny and any felony.” According to a police incident report, Jones was arrested because he “walked into the Walgreens business and placed miscellaneous items into his pants pockets and waistband and walked out of the business without paying for them.” The report indicates Jones stole three packages of Dove body wash and one 6-pack of Dove body soap. Together, the items were worth $35.46.

         Regarding the prison priors, the prosecution “further alleged as to count(s) 1, 2, 4, 5 pursuant to Penal Code section 667.5(b) that the defendant(s) Casey Jones Jr, has suffered... prior conviction(s)” in “Court Case FVI1202922 [for violating] PC459” and in “Court Case FSB1302227 [for violating] PC 666(A), ” and “a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant(s) did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.”

         On November 22, 2013, Jones pled guilty to the commercial burglary count, the two resisting an executive officer counts, and admitted the prison prior allegation related to case No. FSB1302227. On motion of the prosecution, the trial court dismissed counts 2 and 3 and struck the prison prior allegation related to case No. FVI1202922. The trial court sentenced Jones to the upper term of three years in county jail for the burglary conviction, two concurrent upper terms of three years for the resisting an executive officer convictions, and a consecutive one-year enhancement for the prison prior. The trial court ordered two years six months of the sentence suspended and imposed mandatory supervision for the same period. However, on March 5, 2014, the trial court found Jones had violated the conditions of mandatory supervision and ordered him to serve 730 days in county jail.

         On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as shoplifting], 490.2, subd. (a) [redefining some grand theft offenses as petty theft].) The initiative also created a procedure allowing offenders “who would have been guilty of a misdemeanor under [Proposition 47] had [the] act been in effect at the time of the offense” to file a petition (or application) in the trial court that entered the judgment of conviction “to have the felony conviction or convictions designated as misdemeanors” if the offender has completed serving his or her sentence (§ 1170.18, subd. (f)) or “to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added” by Proposition 47. (§ 1170.18, subd. (a).)

         Jones filed a Proposition 47 petition in a prior case (No. FSB1302227), requesting the conviction treated as a prison prior in this case (No. FVA1301982) be designated a misdemeanor. On April 24, the trial court granted the petition in the prior case and ordered his felony conviction for violating section 666 reduced to a misdemeanor under section 1170.18.[2]

         On April 10, 2015, Jones submitted a petition in this case asking the trial court to designate his second degree burglary conviction as a misdemeanor under section 1170.18, subdivision (f). Jones requested a hearing under section 1170.18, subdivision (h). On April 20, 2015, Jones filed a motion for resentencing in this case.[3] Jones sought “an overall reduction in his sentence of one year based on the reclassification of the ‘prison prior’ to a misdemeanor.”

         On May 22, 2015, the superior court held a hearing.[4] As the People concede, neither the parties nor the superior court mentioned Jones’s petition to reclassify his second degree commercial burglary conviction as misdemeanor shoplifting at the hearing. Nor did the superior court take evidence at the hearing. Instead, the court heard argument limited to the issue of whether a prison prior enhancement must be stricken if the underlying conviction has been designated a misdemeanor under a separate section 1170.18 petition. The trial court held “[t]he fact that the underlying offense has now been re-classified as a misdemeanor does not change the fact that the person, in fact, did serve a prior prison term. And does not change the public policy arguments behind [section] 667.5(b), that a person who did serve a prior prison term deserves an enhanced sentence for that effect [sic], despite the fact that that underlying conviction has been reduced to a misdemeanor.” The trial court also rejected the objection that interpreting the statutes in that way violates equal protection. The court ...

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