In re Larson CA4/1

Filed 2/10/16 In re Larson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D068273
In re SCHA BUCK LARSON on Habeas
Corpus.

(Super. Ct. No. SCD240603)

Original proceeding on a petition for writ of habeas corpus. Petition denied.

John L. Staley, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Erica A. Swenson and Lynne G.

McGinnis, Deputy Attorneys General, for Respondent.

I.

INTRODUCTION

Scha Buck Larson filed a petition for habeas corpus in this court requesting that

we modify a sentence that the trial court imposed in 2012, by vacating a prison prior
sentence enhancement (Pen. Code, § 667.5, subd. (b)).1 Larson argues that the sentence

on the prison prior enhancement is unauthorized and must be vacated because, in March

2015, the trial court declared the 2009 prior felony conviction on which the prison prior

enhancement is based to be a misdemeanor pursuant to section 1170.18, subdivision (k).2

Larson argues further that because his 2009 conviction is now considered a

"misdemeanor for all purposes" (§ 1170.18, subd. (k)), the 2009 conviction cannot serve

as the basis for the prior prison sentence enhancement. In People v. Valenzuela (Feb. 3,

2016, D066907) ___ Cal.App.4th ___, ___ [2016 Cal.App. Lexis 76, p. *29]

(Valenzuela), this court concluded that section 1170.18, subdivision (k) does not have

such "retroactive collateral consequences." We agree with Valenzuela court.

Accordingly, we deny Larson's petition.

II.

PROCEDURAL BACKGROUND

A. The underlying conviction and prison sentence on which the prison prior
enhancement at issue is based3

In December 2009, in San Diego County Superior Court Case No. SCD223677

(Case No. SCD223677), Larson pled guilty to one count of attempted possession of a

1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2 Section 1170.18 was added through the enactment of Proposition 47 on November
4, 2014 (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 1, p. 70), and became
effective the next day (Cal. Const., art. II, § 10, subd. (a)).
3 We grant Larson's unopposed request that we take judicial notice of various
records related to the 2009 and 2012 convictions that are attached as exhibits to his writ
petition.
2
controlled substance (§ 664; Health & Saf. Code, § 11377, subd. (a)) and admitted a

strike prior (§ 667, subds. (b)-(i)). The trial court imposed a stipulated sentence of one

year and four months in prison.

B. The sentence on the prison prior at issue in Larson's writ petition

In 2012, in San Diego County Superior Court Case No. SCD240603 (Case No.

SCD240603), a jury found Larson guilty of attempted vehicle theft (§ 664; Veh. Code,

§ 10851, subd. (a)) (count 1) and misdemeanor battery (§ 242) (count 3). Larson

admitted having served two prior prison terms (§§ 667.5, subd. (b), 668) and having

suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668). The second

prison prior admission was based on Larson's conviction and sentence in Case No.

SCD223677.

At sentencing, in September 2012, the trial court sentenced Larson to state prison

for five years. The court imposed the upper base term of 18 months on count 1, doubled

under the Three Strikes law, and two consecutive one-year terms for the prison prior

enhancements.4 One of the prison priors was premised on Larson's conviction and

sentence in Case No. SCD223677.

C. Larson's petition for recall of sentence in the trial court

In December 2014, Larson filed a petition for recall and resentencing pursuant to

1170.18, subdivisions (a), (b), and (d) in the trial court, seeking to have his conviction for

attempted possession of a controlled substance (§ 664; Health & Saf. Code, § 11377,

4 The court sentenced Larson to 180 days in local custody for the battery offense
(count 3), with credit for time served.
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subd. (a)) in Case No. SCD223677 reduced to a misdemeanor. Larson also asked the

court to strike the one-year prior prison sentence enhancement in Case No. SCD240603,

which was based on that same conviction. In March 2015, the court granted Larson's

petition insofar as he sought to have his conviction for attempted possession of a

controlled substance reduced to a misdemeanor. However, the court denied Larson's

request to strike the one-year prison prior sentence enhancement.

D. Larson's petition for habeas corpus in this court

In June 2015, Larson filed a petition for writ of habeas corpus asking this court to

vacate the one-year prison prior sentence enhancement imposed in Case No. SCD240603,

which is based on the attempted possession of a controlled substance conviction in Case

No. SCD223677. This court issued an order to show cause and appointed counsel to

represent Larson in this proceeding. Counsel filed a supplemental petition seeking the

same relief. The People filed a return to the supplemental petition, and Larson, through

counsel, filed a traverse.5

5 While Larson's writ petition was pending, this court requested supplemental
briefing concerning Larson's custodial status. We also asked whether, in light of Larson's
custodial status, this court had jurisdiction over Larson's petition and whether his petition
was moot. Larson filed a supplemental brief indicating that he is no longer in physical
custody, but that he is on parole until September 2018. Larson argued that this court has
jurisdiction over his petition and that the petition is not moot because he remains in
constructive custody of the State of California. The People concurred in Larson's
analysis. We agree with the parties that this court has jurisdiction over Larson's petition
and that the petition is not moot. (See People v. Villa (2009) 45 Cal.4th 1063, 1069
[petition for habeas corpus is "available to one on parole"].)
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 III.

DISCUSSION

The prison prior sentence enhancement imposed in
Case No. SCD240603 does not constitute an unauthorized sentence

Larson contends that the sentence imposed in Case No. SCD240603 is

unauthorized because the "felony conviction used to impose a one year sentence for a

prior prison enhancement [(§ 667.5, subd. (b))] has now been declared a misdemeanor

pursuant to Penal Code section 1170.18." Larson contends that "[t]he plain wording of

sections 667.5, subdivision (b), and 1170.18, subdivision (k), establish that a prior prison

enhancement cannot be based on a conviction that has been reduced to a misdemeanor

pursuant to section 1170.18."

Larson's claim raises an issue of statutory interpretation. Accordingly, we apply

the de novo standard of review. (See, e.g., Doe v. Brown (2009) 177 Cal.App.4th 408,

417 ["We apply the de novo standard of review to this claim, since the claim raises an

issue of statutory interpretation"].)

A. Governing law

1. Section 667.5, subdivision (b)

"Section 667.5, subdivision (b) provides for a one-year enhancement for a felony

conviction for 'each prior separate prison term served for any felony.' " (People v. Torres

(2011) 198 Cal.App.4th 1131, 1149.) Section 667.5 provides in relevant part:

"Enhancement of prison terms for new offenses because of prior
prison terms shall be imposed as follows:

"[¶] . . . [¶]

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 "(b) . . . [W]here the new offense is any felony for which a prison
sentence . . . is imposed . . . , in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for
each prior separate prison term . . . for any felony . . . ."

2. Section 1170.18

Under section 1170.18's resentencing mechanism, "[a] person currently serving a

sentence for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under the act that added this section ('this act') had

this act been in effect at the time of the offense may petition for a recall of sentence

before the trial court that entered the judgment of conviction in his or her case to request

resentencing," in accordance with the reduced penalties provided for various crimes

contained in the statute. (Id., subd. (a).) A person who satisfies the statutory criteria

shall have his or her sentence recalled and be "resentenced to a misdemeanor . . . unless

the court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety." (Id., subd. (b).)

Section 1170.18 also provides that persons who have completed felony sentences

for offenses that would now be misdemeanors under Proposition 47 may file an

application to have their felony convictions "designated as misdemeanors." (§ 1170.18,

subds. (f)-(h).) Section 1170.18, subdivision (k) provides that convictions that are

resentenced or designated pursuant to section 1170.18 "shall be considered a

misdemeanor for all purposes," except that such resentencing shall not permit the person

to possess firearms. Section 1170.18, subdivision (k) provides:

"(k) Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision

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 (g) 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 or prevent his or
her conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6."6

3. Valenzuela

In Valenzuela, supra, 2016 Cal.App. Lexis 76, this court considered a defendant's

request to strike a prison prior enhancement based on a felony conviction that had been

reduced to a misdemeanor after the imposition of sentence on the enhancement. (Id. at p.

*26.) The appellant in Valenzuela argued that section 1170.18, subdivision (k)

" 'suggests that the electorate wanted eligible offenders like [her] to be shielded from the

collateral consequences of prior prison terms stemming from felonies that the law now

recognizes as misdemeanors.' " (Valenzuela, at p. *29.) This court rejected the

argument, reasoning:

"Nothing in this language or the ballot materials for Proposition 47
indicates that this provision was intended to have the retroactive
collateral consequences that Valenzuela advances. To the
contrary . . . the procedures set forth in section 1170.18 that must be
followed to obtain the resentencing and reclassification benefits of
Proposition 47 indicate the electorate's intent for a specific, limited
prospective application of the relief available under the new law."
(Id. at p. *29.)

The Valenzuela court also noted that the Supreme Court's decision in People v.

Park (2013) 56 Cal.4th 782, 796 (Park) supported its conclusion, reasoning:

"In Park the California Supreme Court considered whether a
conviction for a serious felony that was subsequently reduced to a

6 Section 29800 et. seq. define various crimes pertaining to the illegal possession of
firearms.
7
 misdemeanor under section 17, subdivision (b)(3), and dismissed
pursuant to section 1203.4, subdivision (a)(1), before the defendant
committed a later offense could serve as the basis for a felony
enhancement under section 667, subdivision (a). Park concluded
that once the conviction was reduced to a misdemeanor, it could no
longer serve as the basis for the enhancement . . . . 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.' (Id. at p. 802, italics added.) Because
Valenzuela's 2012 conviction for receiving stolen property was a
felony at the time she was sentenced in this case, under the logic of
Park that conviction properly served as the basis for the trial court's
imposition of a one-year enhancement under section 667.5,
subdivision (b)."

B. Application

Larson presents nearly the identical argument that this court rejected in

Valenzuela. Specifically, Larson contends that section 1170.18, subdivision (k) should

be interpreted to provide that once a conviction is reduced to a misdemeanor, the

"predicate requirement of a felony conviction no longer exist[s]," and thus, a sentence

enhancement imposed for a prison prior before such reduction becomes invalid.

However, as was true of the appellant in Valenzuela, Larson points to nothing in either

the language of section 1170.18 or the ballot materials related to Proposition 47 that

demonstrates that the Legislature intended for the statute to have such "retroactive

collateral consequences . . . ." (Valenzuela, supra, 2016 Cal.App. Lexis at p. *29.)

Further, as the Valenzuela court's discussion of Park, supra, 56 Cal.4th 782,

demonstrates, refusing to give retroactive collateral effect to the phrase "shall be

considered a misdemeanor for all purposes," in section 1170.18, subdivision (k) is

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strongly supported by the Supreme Court's interpretation of similar language contained in

section 17, subdivision (b).

Section 17, subdivision (b) provides that certain crimes, "commonly referred to as

'wobbler[s]' [citation], are chargeable or, in the discretion of the court, punishable as

either a felony or a misdemeanor; that is, they are punishable either by a term in state

prison or by imprisonment in county jail and/or by a fine. (Park, supra, 56 Cal.4th at p.

789.) Section 17, subdivision (b) provides that, when the offense is reduced to a

misdemeanor pursuant to the circumstances specified in the statute, the crime "is a

misdemeanor for all purposes." (Italics added.)7 In applying section 17, subdivision (b),

7 Section 17, subdivision (b) provides:
"(b) When a crime is punishable, in the discretion of the court, either
by imprisonment in the state prison or imprisonment in a county jail
under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes
under the following circumstances:
"(1) After a judgment imposing a punishment other than
imprisonment in the state prison or imprisonment in a county
jail under the provisions of subdivision (h) of Section 1170.
"(2) When the court, upon committing the defendant to the
Division of Juvenile Justice, designates the offense to be a
misdemeanor.
"(3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation,
or on application of the defendant or probation officer
thereafter, the court declares the offense to be a misdemeanor.
"(4) When the prosecuting attorney files in a court having
jurisdiction over misdemeanor offenses a complaint
specifying that the offense is a misdemeanor, unless the
defendant at the time of his or her arraignment or plea objects
to the offense being made a misdemeanor, in which event the
9
the California Supreme Court has repeatedly concluded that the reduction of the offense

to a misdemeanor does not apply retroactively. (See, e.g., People v. Feyrer (2010) 48

Cal.4th 426, 439 ["If ultimately a misdemeanor sentence is imposed, the offense is a

misdemeanor from that point on, but not retroactively"]; Park, supra, at p. 795 ["From

the decisions addressing the effect and scope of section 17[, subdivision ](b), we discern

a long-held, uniform understanding that when a wobbler is reduced to a misdemeanor in

accordance with the statutory procedures, the offense thereafter is deemed a

'misdemeanor for all purposes' " (italics added)].)

In People v. Rivera (2015) 233 Cal.App.4th 1085 (Rivera), the court noted the

significance of the similarity of the language in section 1170.18, subdivision (k) and

section 17, subdivision (b), in concluding that the Court of Appeal had appellate

jurisdiction over "an appeal from a case in which the defendant was originally convicted

of a felony, but . . . the defendant was resentenced as a misdemeanant under Proposition

47." (Rivera, supra, at p. 1089.) The Rivera court reasoned:

"As defendant notes, the language in subdivision (k) of section
1170.18 that a conviction that is reduced to a misdemeanor under
that section 'shall be . . . a misdemeanor for all purposes' is not
significantly different from the language in section
17[, subdivision ](b), which provides that after the court exercises its
discretion to sentence a wobbler as a misdemeanor, and in the other

complaint shall be amended to charge the felony and the case
shall proceed on the felony complaint.
"(5) When, at or before the preliminary examination or prior
to filing an order pursuant to Section 872, the magistrate
determines that the offense is a misdemeanor, in which event
the case shall proceed as if the defendant had been arraigned
on a misdemeanor complaint." (Italics added.)
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 circumstances specified in section 17[, subdivision ](b), 'it is a
misdemeanor for all purposes.' (Italics added.) As we have noted,
in construing this language from section 17[, subdivision ](b), the
California Supreme Court has stated that the reduction of the offense
to a misdemeanor does not apply retroactively. [Citations.] We
presume the voters 'intended the same construction' for the language
in section 1170.18, subdivision (k), 'unless a contrary intent clearly
appears.' [Citation.] Nothing in the text of Proposition 47 or the
ballot materials for Proposition 47—including the uncodified
portions of the measure, the official title and summary, the analysis
by the legislative analyst, or the arguments in favor or against
Proposition 47—contains any indication that Proposition 47 or the
language of section 1170.18, subdivision (k) was intended to change
preexisting rules regarding appellate jurisdiction. [Citations.] We
therefore presume that the phrase 'shall be considered a
misdemeanor for all purposes' in section 1170.18, subdivision (k)
does not apply retroactively." (Id. at p. 1100.)

In light of the foregoing, we conclude that designation of a felony conviction as a

misdemeanor pursuant to section 1170.18 does not render unauthorized a prison prior

sentence enhancement based on such conviction where the sentence on the enhancement

was imposed prior to such designation. Thus, cases on which Larson relies in which

courts have concluded that the reduction of a conviction from a felony to a misdemeanor

prevented the use of the conviction as a felony in future proceedings do not demonstrate

the illegality of Larson's sentence. (See Park, supra, 56 Cal.4th at p. 787 ["We conclude

that when the court in the prior proceeding properly exercised its discretion by reducing

the assault with a deadly weapon conviction to a misdemeanor, that offense no longer

qualified as a prior serious felony within the meaning of section 667, subdivision (a), and

could not be used, under that provision, to enhance defendant's sentence," (italics

11
altered)]; People v. Gilbreth (2007) 156 Cal.App.4th 53, 57-58 [concluding that reduction

of a felony conviction to a misdemeanor prevented its future use as a predicate offense

for being a felon in possession of a firearm]; Gebremicael v. California Com. on Teacher

Credentialing (2004) 118 Cal.App.4th 1477, 1482-1489 [stating that "once a court has

reduced a wobbler to a misdemeanor pursuant to Penal Code section 17, the crime is

thereafter regarded as a misdemeanor 'for all purposes,' " and concluding that felony

conviction that had been reduced to a misdemeanor in 1998 could not be used as a basis

to deny a teaching credential in 2002 (italics added)].)

In summary, the trial court's designation of Larson's felony attempted possession

of a controlled substance conviction as a misdemeanor pursuant to section 1170.18 did

not render the trial court's imposition of a prison prior sentence enhancement based on

such conviction unauthorized, since the prison prior sentence enhancement was imposed

prior to such designation. Accordingly, we conclude that the prison prior sentence

enhancement imposed in Case No. SCD240603 does not constitute an unauthorized

sentence.8

8 In a single paragraph in his supplemental petition, Larson also contends that his
right to due process was violated by imposition of the prison prior enhancement because
he had a "liberty interest protected by the due process clause regarding imposition of the
sentence for the prior prison enhancement." Larson has failed to adequately articulate the
due process contention he raises, and thus we deem the claim forfeited. (See, e.g., People
v. Bryant (2013) 222 Cal.App.4th 1196, 1206 [concluding ineffective assistance of
counsel claim was forfeited where party failed to "adequately brief[ ] the issue"].)
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 IV.

DISPOSITION

The petition is denied.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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