NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
A jury convicted appellant Rodney James Rusco of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)/count 1)1 and battery with serious bodily injury (§ 243, subd. (d)/count 2) and it found true a great bodily injury enhancement in count 1 (§ 12022.7, subd. (a)). In a separate proceeding, the court found true seven prior prison term enhancements (§ 667.5, subd. (b)).
On appeal, Rusco contends: (1) the court erred in imposing three prior prison term enhancements whose underlying felony convictions had been redesignated misdemeanors; and (2) the trial court may not impose prior prison term enhancements based on convictions that occurred prior to 2015 because those convictions were "washed out."2
We find merit to Rusco's contentions, modify the judgment accordingly, and affirm as modified.
FACTS
On March 1, 2016, 66-year-old Craig Carter was riding his bicycle on a bike trail in Bakersfield when Rusco jumped towards him and kicked the bicycle. Carter fell off and suffered a broken rib and a severe scrape on his right hand that bled profusely.
On March 28, 2016, the Kern County District Attorney filed an information charging Rusco with assault (count 1), battery (count 2) and elder abuse (§ 368/count 3). The information also charged Rusco with great bodily injury in counts 1 and 2 and six prior prison term enhancements. The court subsequently allowed the prosecutor to amend the information to add a seventh prior prison term enhancement by separating out one prior conviction from one of the enhancements alleged in the information. Rusco's seven prior prison term enhancements were based on the following convictions in Kern County Superior Court for which he served a prison term:
1. A 1991 carrying a dirk or dagger conviction (former § 12020) in case No. SCO47140A and an April 6, 1994, possession of controlled substance conviction (Health & Saf. Code, § 11350, subd. (a)) in case No. SCO56951A;
2. A May 30, 1995, possession for sale of marijuana conviction (Health & Saf. Code, § 11359) in case No. SC061900A;
3. An April 7, 2000, possession for sale of a controlled substance conviction (Health & Saf. Code, § 11378) in case No. SC07950A;
4. An August 20, 2001, possession of a controlled substance conviction (Health & Saf. Code, § 11350, subd. (a)) in case No. BF095967A;
5. A December 27, 2005, possession of a controlled substance conviction (Health & Saf. Code, § 11377, subd. (a)) in case No. BF112907A;
6. An August 7, 2012, possession of a controlled substance conviction (Health & Saf. Code, § 11377, subd. (a)) in case No. BF142176A; and
7. A June 3, 2015, false imprisonment conviction (§ 236) in case No. BF157688A.
On June 10, 2016, a jury rendered its verdict in this matter.3
On June 22, 2016, the court found true the seven prior prison term enhancements.
On July 13, 2016, the court granted Rusco's motion pursuant to section 1170.18, to reduce his December 27, 2005 and August 20, 2001, drug possession convictions to misdemeanors. Previously, on March 23, 2016, the court had granted Rusco's motion to reduce his 2012 drug possession conviction to a misdemeanor.
On July 18, 2016, Rusco filed a motion to strike prior prison term enhancement Nos. 4, 5, and 6, because the underlying drug possession convictions had been reduced to misdemeanors.
On July 20, 2016, although the court denied Rusco's motion to strike prior prison term enhancement Nos. 4, 5, and 6, it struck prior prison term enhancement Nos. 1, 2, and 3, which were based on Rusco's oldest convictions. The court then sentenced Rusco to an aggregate 11-year prison term: the upper term of four years on Rusco's assault conviction, a three-year great bodily injury enhancement in that count, four one-year prison term enhancements, and a stayed upper term of four years on his battery conviction.
DISCUSSION
The Trial Court Erred in Denying Rusco's Motion to Strike Prior Prison Term Enhancement Nos. 4, 5, and 6
The parties agree, as do we, that the court erred when it denied Rusco's motion to strike the three prior prison term enhancements that were based on Rusco's drug possession convictions that were reduced to misdemeanors (prior prison term enhancement Nos. 4, 5, and 6).
In November 2014, California voters enacted Proposition 47 (§ 1170.18), which prospectively reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the convictions as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743-744 (Abdallah).) Section 1170.18, subdivision (a), authorizes the court to recall and resentence eligible defendants who are currently serving a felony sentence. Section 1170.18, subdivision (f), authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, supra, at pp. 743-744.)
Section 667.5, subdivision (b), imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Section 1170.18, subdivision (k), provides that once redesignated, prior convictions "shall be considered a misdemeanor for all purposes" except as it relates to possession or control of a firearm, an exception not applicable here. We have held that the plain language of the statute and its "for all purposes" requirement precludes the imposition of prior prison term enhancements that are based on felony convictions that are redesignated misdemeanors prior to sentencing. (People v. Call (2017) 9 Cal.App.5th 856, 858 (Call); see People v. Kindall (2016) 6 Cal.App.5th 1199, 1205 (Kindall); Abdallah, supra, 246 Cal.App.4th at p. 746.)
Rusco successfully petitioned for redesignation prior to sentencing. Accordingly, we apply Proposition 47 relief prospectively, as was done in Call, Kindall, and Abdallah, and conclude that the trial court erred when it denied Rusco's motion to strike prior prison term enhancement Nos. 4, 5, and 6.4
Rusco's Three Oldest Prior Prison Term Enhancements Were Washed Out
Rusco contends the redesignation of his 2001, 2005, and 2012 drug possession convictions to misdemeanors converted the prison terms he served on these convictions to misdemeanor custody time for purposes of the "washout" provision of section 667.5. Thus, according to Rusco, none of his convictions that predated 2001, i.e., his 1991, 1995, and 2000 convictions, may be used to impose a prior prison term enhancement because a gap of more than five years exists between his 2000 conviction and his 2015 conviction during which he was free of a felony conviction and prison custody.5 Respondent contends that even though Rusco's 2001, 2005, and 2012 convictions were redesignated misdemeanors, the prison terms he served on those convictions "continue to negate the washout period." Thus, according to respondent, the matter should be remanded for resentencing and the trial court should not be precluded from imposing the three enhancements the court struck (prior prison term enhancement Nos. 1, 2, and 3, which were based on Rusco's 1991, 1995, and 2000 convictions).6
"The 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.'"' [Citations.] The sentence enhancement requires proof that the defendant `"(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction."' [Citations.]
"Courts sometimes refer to the fourth requirement, which exempts from the enhancement defendants who have not reoffended for five years, as `"`washing out.'"' [Citations.] `"The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways."' [Citations.] `According to the "washout" rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply.' [Citations.] `Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the "washout" rule to apply.'" (Abdallah, supra, 246 Cal.App.4th at pp. 742-743, fn. omitted, first and third italics added.)
Recently, in Warren, supra, 24 Cal.App.5th at page 917, this court noted that: "(1) A goal of Proposition 47, when a prior offense is found pursuant to a Proposition 47 petition not to be worthy of treatment as a felony, is to relieve the defendant of the burden of a felony conviction, including the burden of a felony sentence[; and that] (2) Despite its literal terms, section 667.5, subdivision (b), manifests no intent inconsistent with this goal of Proposition 47." Thus, we concluded that, "the washout provision of section 667.5, subdivision (b), should be construed to allow a prior felony to washout provided it is followed by a five-year period free of felony convictions and incarceration in prison or in county jail pursuant to section 1170, subdivision (h), except that such incarceration shall not prevent the prior felony from washing out if it was imposed for an offense that has been designated a misdemeanor or resentenced as a misdemeanor pursuant to a petition filed under section 1170.18." (Ibid.)
Respondent contends that Warren was wrongly decided because its conclusion ignores: (1) the plain language of section 667.5, subdivision (b), which states that the washout rule applies only where the defendant "remained free of both the commission of an offense which results in a felony conviction, and prison custody"; and (2) the legislative intent to punish recidivist behavior. We rejected identical arguments in Warren. (Warren, supra, 24 Cal.App.5th at pp. 915-916.) Thus, in accord with Warren, we conclude that the redesignation of R*usco's 2001, 2005, and 2012 felony drug convictions to misdemeanors triggered section 667.5, subdivision (b)'s washout period. Further, since the washout rule prevents the court from imposing the prior three prison term enhancements the court struck (prior prison term enhancement Nos. 1, 2, and 3), we see no need to remand the matter for resentencing.
DISPOSITION
The judgment is modified to strike prior prison term enhancement Nos. 4, 5, and 6, which were based on Rusco's 2001, 2005, and 2012 convictions for possession of a controlled substance. Further, Rusco's aggregate sentence is reduced from 11 years to eight years. The trial court is directed to issue an amended abstract of judgment that incorporates these modifications and to forward a copy to the appropriate authorities. As modified, the judgment is affirmed.
