People v. AcostaPeople v. Acosta
The purported dismissals of the six prior prison term enhancements in the instant case were ineffectual because the enhancements attached to the aggregate sentence and had been imposed on that sentence. Thus, when the felony convictions in the two other cases were later reduced to misdemeanors pursuant to Proposition 47, there was no impediment to the reimposition of the six prior prison term enhancements upon resentencing in the instant case. Furthermore, all six prior prison term enhancements
Juan Gabriel Acosta appeals from the judgment entered following resentencing on the sole remaining felony conviction in the instant case. The trial court originally sentenced him to a consecutive term of eight months (one-third the middle term of two years) and, as discussed above, “dismissed” six prior prison term enhancements. After the other felony convictions comprising the aggregate sentence had been reduced to misdemeanors pursuant to Proposition 47, the court resentenced him on the remaining felony conviction to prison for eight years: the middle term of two years plus six years for the six previously dismissed prior prison term enhancements.
Appellant contends that, although the trial court properly increased the sentence on the remaining felony conviction from eight months to two years (People v. Sellner (2015) 240 Cal.App.4th 699), it exceeded its jurisdiction by enhancing that sentence with the six previously dismissed prior prison term enhancements. We affirm.
Procedural Background
Pursuant to a negotiated disposition in the instant case, in April 2014, appellant pleaded guilty to two felonies: second degree commercial burglary (count 1 -
On May 15, 2014, appellant was sentenced on the convictions in the instant case and two other cases: case number 2014001248 (hereafter case 2) and case number
In September 2014 the trial court found that appellant had violated the terms of his probation. It terminated probation and ordered into effect the previously suspended 13-year prison sentence.
As a result of the passage of Proposition 47 in November 2014, the felony offenses in the three cases were reclassified as misdemeanors with one exception: resisting an executive officer in the instant case. (
In the instant case, the court reduced appellant‘s felony burglary conviction to misdemeanor shoplifting. On the remaining felony conviction (
The Trial Court Had the Authority to Reimpose the Prior Prison Term Enhancements
When appellant was originally sentenced, the trial court purportedly dismissed the six prior prison term enhancements in the instant case only because the same enhancements had been imposed in case 2 and, therefore, could not be imposed again. (People v. Edwards (2011) 195 Cal.App.4th 1051, 1060 [“Prior prison term enhancements are status enhancements which can be imposed only once, on the aggregate sentence. Here, the sentence in [the instant case] was made consecutive to the sentence in case [2], creating a single aggregate term.“].) When appellant was resentenced in the instant case the trial court imposed a one-year term for each of the six
The purported dismissal of the six prior prison term enhancements in the instant case was not a “true” dismissal because it did not insulate appellant from the enhancements’ additional punishment. The same enhancements were imposed in case 2 as part of the aggregate sentence for all three cases. The sole reason for the purported dismissal in the instant case was that they had already been imposed in case 2 and therefore could not be imposed again to increase the aggregate sentence. When the trial court resentenced appellant to a misdemeanor in case 2, the prior prison term enhancements in that case became inapplicable because they can be imposed only where the new offense is a felony. (
Service of A Prior Prison Term Does Not Vanish When the Underlying Felony Conviction is Reduced to a Misdemeanor
The second issue is whether the trial court properly imposed enhancements on the three prior prison terms for which the underlying felony convictions had been reduced to misdemeanors pursuant to Proposition 47. This issue is a familiar one as there has been a spate of appellate opinions, unanimously holding that a prior prison term
Subdivision (k) of section 1170.18 did not prohibit the imposition of the three prior prison term enhancements based on felony convictions that were subsequently designated as misdemeanors. This section provides: “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 . . . .”
The phrase “for all purposes” applies to the simple “status” of conviction of a felony. This is the plain, unambiguous, and only reading of the statute. (See e.g., People v. Pecci (1999) 72 Cal.App.4th 1500, 1505 [plain meaning rule].) There is no mention of the separate and distinct enhancement of prior prison term service in Proposition 47.
The person who has served a term in prison has had the opportunity for a “…crime-free cleansing period of rehabilitation . . . [and] the opportunity to reflect upon the error of his or her ways.” (People v Humphrey (l997) 58 Cal.App.4th 809, 813; see also People v Reed (l967) 249 Cal.App.2d 468, 472 [“opportunities for rehabilitation” in the habitual criminal statute].) This “status” is something different, and in addition to a simple felony conviction. Here, appellant has had six such opportunities. The fact that an underlying conviction has been reduced by Proposition 47 does not alter the historical fact of prison term service. A prior prison term shows the defendant‘s “status” as a
As indicated, nothing in Proposition 47 expressly mentions that an offender is relieved of the penal consequences of having served a term in prison. An appellate court should not “add” provisions to a statute. (See e.g., People v Buena Vista Mines Inc. (l996) 48 Cal.App.4th 1030, l034.) This is not a new concept. In l926, Justice Louis Brandeis, speaking for a unanimous Supreme Court, said, “What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function. [Citations.]” (Iselin v United States (l926) 270 U.S. 245, 251 [70 L.Ed. 566, 569-570].) We decline the invitation to “add” and judicially create an “enlargement” of the statute.
Disposition
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.