People v. Call
9 Cal. App. 5th 856
| Cal. Ct. App. | 2017Background
- Defendant Georgette Mae Call was convicted by jury of transportation of methamphetamine (count 1) and possession for sale (count 2); a third count was later dismissed. Three prior prison-term allegations (§ 667.5(b)) based on prior receiving-stolen-property convictions were found true after a bifurcated court trial.
- Before sentencing on the current convictions, defendant obtained redesignation of the three prior receiving-stolen-property convictions to misdemeanors under Proposition 47 (§ 1170.18).
- The trial court denied defendant’s motion to strike the § 667.5(b) enhancements and imposed three one-year prior-prison-term enhancements, resulting in an aggregate sentence of seven years on count 1; sentence on count 2 was stayed under § 654.
- The probation report recommended fees under Health & Safety Code §§ 11372.5 and 11372.7 on count 2; the sentencing minutes imposed those fees even though the count’s sentence was stayed.
- On appeal, defendant argued (1) the § 667.5(b) enhancements could not be imposed because the prior convictions had been redesignated as misdemeanors prior to sentencing, and (2) fees and assessments imposed on the stayed count must be stayed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 667.5(b) prior-prison-term enhancements may be imposed when the underlying prior felonies were redesignated as misdemeanors under Prop. 47 before sentencing | Enhancements valid because at time of the new offenses the prior convictions were felonies and enhancements punish recidivism | Enhancements invalid because § 1170.18 redesignation made priors "misdemeanors for all purposes" before sentencing, removing required felony element for § 667.5(b) | Held: Enhancements vacated — because the convictions had been redesignated as misdemeanors prior to sentencing, they could not serve as § 667.5(b) prior felonies. |
| Whether fees and penalty assessments imposed on count 2 must be stayed where count 2’s sentence was stayed under § 654 | People conceded the specific fees should be stayed; otherwise no defense argument contesting the stay | Fees and assessments on stayed count are unauthorized and must be stayed | Held: Fees and related penalty assessments under Health & Safety Code §§ 11372.5 and 11372.7 and attendant penalties as to count 2 stayed. |
Key Cases Cited
- People v. Park, 56 Cal.4th 782 (2013) (when a prior wobbler is reduced to a misdemeanor, it can no longer serve as a prior felony for sentence enhancement unless statute provides otherwise)
- People v. Johnson, 8 Cal.App.5th 111 (2017) (held Prop. 47 did not require altering a sentence where the § 667.5(b) enhancement had been imposed before the prior was reduced)
- People v. Evans, 6 Cal.App.5th 894 (2016) (discusses effect of Prop. 47 redesignation on prior-conviction enhancements)
- People v. Weeks, 224 Cal.App.4th 1045 (2014) (addresses timing issues for § 667.5(b) trigger but is not controlling here)
- People v. Tenner, 6 Cal.4th 559 (1993) (elements required to impose a § 667.5(b) prior-prison-term enhancement)
Disposition: The three one-year § 667.5(b) enhancements were stricken, fees on stayed count 2 were stayed, judgment otherwise affirmed, and the case remanded for resentencing on the modified judgment.