THE PEOPLE, Plaintiff and Respondent, v. TOMMIE LEE KINDALL, Defendant and Appellant, 6 Cal. App. 5th 1199

Opinion DUARTE, J. A jury found defendant Tommie Lee Kindall guilty of felony battery causing serious bodily injury, misdemeanor assault, and misdemeanor domestic violence. (Pen. Code, §§ 240, 243, subds. (d) & (e)(1).) After the verdicts, but before a court trial on the prior prison term enhancements (§ 667.5, subd. (b)), another trial court reduced three of defendant’s alleged prior convictions to misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act (the Act).

The trial court presiding over defendant’s case (Goodman, J.) subsequently found after a court trial that defendant had served seven separate prior prison terms, three of which were based on the three drug convictions (Health & Saf. Code, § 11350, subd. (a)) that had already been reduced. The court sentenced defendant to the upper term of four years for the felony battery count, and enhanced the sentence by seven years for the seven prior prison terms. The court ordered defendant to serve nine years in county jail, followed by two years of supervised release. Defendant timely appealed.

On appeal, defendant contends (1) his trial attorney was ineffective because he did not object to prosecutorial misconduct in argument; (2) the three prior prison term enhancements based on sentences for felonies previously reduced to misdemeanors should have been stricken; and (3) the restitution fine is incorrectly set forth in the abstract of judgment. The People agree with the latter point, and so do we.

As we explain in the published portion of our opinion, we also agree with defendant’s second point, because at the time of the three reduced priors’ adjudication as prior prison terms, the charges on which the prison terms were based had already been reduced to misdemeanors for all purposes. Simply put, these three prior convictions were no longer previous felony convictions at the time the trial court adjudicated them as such in order to find the prior prison term allegations true. We shall modify the judgment and affirm, directing the trial court to amend and correct abstract of judgment.

FACTS AND PROCEDURE We briefly summarize the evidence as agreed by the parties. On September 2, 2014, defendant and his cohabitant, both intoxicated, argued and he kicked her in the back and then hit her with a hammer. She testified at trial that she had grabbed the hammer and her injuries were accidentally self-inflicted, but she had made contrary statements implicating defendant both to the police and to medical personnel, and there was evidence defendant communicated to her while in custody to encourage her to testify in his favor.

The defense was based not only on the victim’s in-court testimony, but also the testimony of a witness who testified he saw the victim trip and fall, causing her to hit herself with a hammer, testimony of a victim’s advocate that the victim claimed she hurt herself, and defendant’s testimony denying he hurt her. Defendant conceded he had been convicted of a misdemeanor when he had accidentally hit the victim in the past, claiming he had been “railroaded” into admitting a crime although he had not done anything wrong during that incident; he was impeached with two felony convictions.

The victim characterized the prior uncharged incident in August 2013 as “[ajnother night of drunken anger and stupidity.” She denied defendant punched her in the face several times, but admitted she had called 911, and identified photographs depicting her injuries at that time. She claimed she and defendant had been struggling over a bicycle and its handlebars shuck her. In the uncharged case, she had written a letter recanting her claim that defendant hit her.

A victim’s advocate with a master’s degree in counseling and a bachelor’s degree in psychology testified about a “cycle of violence” consisting of a building of tension in a relationship,

an act of violence, and a “honeymoon phase” where the parties reconcile, and a “lot of times there is denial and minimizing” and people will “assume that it won’t happen again.” DISCUSSION I Ineffective Assistance of Counsel II Claim of Sentencing Error Defendant contends that because the felony drug charges underlying three of his prior prison terms had been redesignated as misdemeanors under Proposition 47 before the priors were adjudicated, he should not have been subject to additional punishment for those three prior prison terms. (§ 667.5, subd. (b).) He contends that Proposition 47 not only entitled him to reduction of those convictions to misdemeanors, but also precluded the use of the prison terms based thereon to enhance the sentence for his current felony.

On the specific timeline presented by this case, we agree. Although defendant’s current crime of felony battery was committed prior to the reduction of the felony offenses used to enhance his sentence to misdemeanors, which the People argue is sufficient to qualify him for the enhancement, by the time the enhancements at issue were adjudicated, the offenses were misdemeanors for all purposes.

The delay in the second portion of the bifurcated trial until after the priors at issue were reduced resulted in the absence of one of the essential elements of a prior prison term finding—that defendant “was previously convicted of a felony.” (People v. Tenner (1993) 6 Cal.4th 559, 563 [24 Cal.Rptr.2d 840, 862 P.2d 840].) As we will explain, these three prior convictions were no longer previous felony convictions at the time the trial court adjudicated them as such. Instead, they were previous misdemeanor convictions, for all purposes going forward.

Proposition 47 in part provides that persons who have completed felony sentences for certain offenses may apply to have their convictions “designated as misdemeanors.” (§ 1170.18, subd. (1).) In such cases, the convictions “shall be considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).) Defendant properly invoked this provision. In People v.

Rivera (2015) 233 Cal.App.4th 1085 [183 Cal.Rptr.3d 362], the appellate court addressed whether Proposition 47 deprived it of jurisdiction in a case where a felony conviction was later designated a misdemeanor or where the defendant was resentenced as a misdemeanant under the Act. (Rivera, at p. 1089.) Rivera found that

section 1170.18, subdivision (k), which parallels the language from

section 17 regarding the reduction of wobblers to misdemeanors, should be interpreted in the same way as being prospective. (Rivera, at p. 1100.) Rivera accordingly concluded that the felony status of an offense charged as a felony did not change after Proposition 47 was passed, thereby conferring jurisdiction on the Court of Appeal. (Id. at pp. 1094-1095, 1099-1101.) Although Rivera addressed

section 1170.18, subdivision (

k) in a different context than in this case, its retroactivity analysis is sound: reduction of a felony to a misdemeanor does not apply retroactively. Here, however, because the very adjudication of the prior convictions was delayed, the instant case was in a very different procedural posture. Here, at the time the trial court was called upon (in the court trial on the priors) to find the elements of the enhancement, it could no longer properly find that defendant had sustained the prior felony convictions alleged. Instead, the three reduced felonies were misdemeanors for all purposes.

Simply put, at the time of the charged priors’ adjudication, defendant had sustained misdemeanor convictions for the three drug charges at issue rather than felonies. There was no need to “look back” and read any retrospective effect into the Proposition 47 reductions; there was only the need to acknowledge the reductions going forward, as the statute requires through its “for all purposes” language. Defendant relies in part on People v. Park (2013) 56 Cal.4th 782 [156 Cal.Rptr.3d 307, 299 P.3d 1263] (Park), in which our Supreme Court held that a felony conviction reduced to a misdemeanor under

section 17, subdivision (

b) could not subsequently be used to support a prior serious felony enhancement under

section 667, subdivision (a). (Park, at p. 798.)

Section 17 contains the same “misdemeanor for all purposes” language as

section 1170.18, subdivision (k). As the People point out, Park did not involve a felony reduced to a misdemeanor after the present crime had been committed, and it distinguished that scenario in clear terms: “There is no dispute that, under the rule in [prior California Supreme Court] cases, [the] defendant would be subject to the

section 667[, subdivision] (

a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor.” (Park, at p. 802.) The People argue that because defendant in this case committed his current felony before any of his prior convictions were reduced to misdemeanors, applying the reductions to eliminate the corresponding prior prison term enhancements would be an impermissible retroactive application of Proposition 47.

As we have explained, the procedural posture of this case is different than Part, indeed, it is different than any of the cases to which the parties have called our attention. However, we find Park instructive in the situation we find ourselves, because here, like Park, three of defendant’s prior convictions which were no longer previous felony convictions were construed as felonies going forward merely because they were felonies in the past. Park instructs that this “once a felony, always a felony”

interpretation cannot be reconciled with the “misdemeanor for all purposes” language. The dicta from Park cited above does not govern the instant case, because it does not speak to the adjudication of the priors, and the required findings regarding the convictions at issue at the time the truth of the allegations is found, which is the question we must answer here. Similarly, the case on which the People rely in their briefing to describe a “trigger date” for the priors’ application concerned an entirely different question than that at hand here. People v. Weeks (2014) 224 Cal.App.4th 1045 [169 Cal.Rptr.3d 255], concerned the definition of a “completed” prison term for purposes of a

section 667.5, subdivision (

b) application, and did not address the question of a prior’s postreduction adjudication. It provides no guidance here. Although we agree with the People that “[t]he purpose of the prior prison term enhancement of

section 667.5, subdivision (b), is ‘ “to punish individuals” who have shown that they are “hardened criminal[s] who [are] undeterred by the fear of prison” ’ ” (People v. Abdallah (2016) 246 Cal.App.4th 736, 742 [201 Cal.Rptr.3d 198]), we do not ignore the plain language of the statute and its “for all purposes” requirement merely because the result of its application may not square with the apparent purpose of the enhancement. Nor are we permitted to ignore the Tenner requirement that the People prove a (previous) felony conviction in order to prove a (current) prison prior.

Once the felony priors at issue here were reduced to misdemeanors, they had ceased to exist as felonies for all purposes moving forward. Thus, when moving forward with the second half of the bifurcated trial, after the felonies’ reduction, the People had to prove under Tenner that defendant was previously convicted of those felonies. But the now-reduced convictions at issue had ceased to exist as felonies; in their place were previous misdemeanor convictions, for all purposes. These purposes include the adjudication of charged enhancements.

Accordingly, we modify the judgment to strike the three prior prison terms erroneously imposed. Ill Correction to Abstract DISPOSITION The judgment is modified to strike the three prior prison terms previously imposed as described by this opinion. As modified, the judgment is affirmed. The trial court is directed to prepare an amended and corrected abstract of judgment and to forward a certified copy thereof to the Sacramento County Sheriffs Department. Butz, Acting P. J., and Renner, J., concurred. Further undesignated statutory references are to the Penal Code.

Defendant’s attorney requested a certificate of probable cause regarding the prison priors, although defendant had not pleaded guilty or admitted them. Thus, there was no basis for counsel’s request. (Cf. § 1237.5; People v. Meals (1975) 49 Cal.App.3d 702, 708 [122 Cal.Rptr. 585].) Accordingly, the trial court properly declined to act on it. The trial com! erroneously stayed imposition of sentence on the misdemeanor counts, instead of imposing and then staying execution of sentence on those counts, as required by

section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1472 [103 Cal.Rptr.3d 898].) However, the parties raise no issue about this mistake, thus we do not address it further. See footnote, ante, page 1199. See footnote, ante, page 1199.