Filed: Aug. 10, 2018
Latest Update: Aug. 10, 2018
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 * Eliseo Valenzuela appeals from the trial court's denial of his motion pursuant to Penal Code section 18.5 1 to reduce his jail s
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 * Eliseo Valenzuela appeals from the trial court's denial of his motion pursuant to Penal Code section 18.5 1 to reduce his jail se..
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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*
Eliseo Valenzuela appeals from the trial court's denial of his motion pursuant to Penal Code section 18.51 to reduce his jail sentence from 365 days to 364 days. We find merit to this contention and modify the judgment accordingly.
FACTS
On August 14, 1996, Valenzuela pled guilty to felony domestic violence (§ 273.5).
On September 11, 1996, the court suspended imposition of sentence and placed Valenzuela on probation for three years on the condition that he serve 365 days in jail.
On January 27, 1999, the court found appellant violated his probation.
On April 23, 1999, the court revoked and reinstated probation for an additional three years with the same terms and conditions including that he serve 365 days in county jail, with credit for 162 days served, with the remainder again suspended.
On February 17, 2017, Valenzuela filed a motion pursuant to section 18.5 to reduce the 365-day sentence he received in the instant case to a sentence of 364 days.
On April 28, 2017, Valenzuela filed a motion to reduce his domestic violence conviction to a misdemeanor.
On May 11, 2017, the trial court granted Valenzuela's motion to reduce his domestic violence conviction to a misdemeanor, but denied his motion to reduce his sentence to 364 days.
DISCUSSION
Valenzuela contends the court erred when it denied his motion to reduce his sentence in the instant matter to 364 days. Respondent concedes and we agree.
Section 18.5 provides:
"(a) Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. This section shall apply retroactively, whether or not the case was final as of January 1, 2015.
"(b) A person who was sentenced to a term of one year in county jail prior to January 1, 2015, may submit an application before the trial court that entered the judgment of conviction in the case to have the term of the sentence modified to the maximum term specified in subdivision (a)."
"For purposes of deportation, federal law defines an aggravated felony as specified types of crimes for which the term of imprisonment is at least 1 year [citation] and provides that a crime involving moral turpitude shall be considered when the maximum possible sentence is at least 1 year. [Citation.] [Section] 18.5 reduces the maximum possible misdemeanor sentence from 1 year to 364 days, so that deportation eligibility will not be triggered for a legal immigrant who commits a misdemeanor punishable by imprisonment for 1 year. [Citation.] [Section] 18.5 applies retroactively, whether or not the case was final as of January 1, 2015. [Citation.] A person who was sentenced to a term of 1 year in county jail before January 1, 2015, may submit an application before the trial court that entered the judgment of conviction to have the term of the sentence modified to the maximum term of 364 days specified in [section] 18.5(a)." (4 Witkin & Epstein, Cal. Criminal Law (4th ed. & 2016 supp.) Pretrial Proceedings, § 317.)
As noted above, section 18.5, subdivision (a) provides that the section applies retroactively whether or not a defendant's case was final as of January 1, 2015. Further, in the instant case, Valenzuela was sentenced to serve 365 days in county jail as a condition of probation and his domestic violence conviction was subsequently reduced to a misdemeanor. Thus, since Valenzuela was entitled to have his sentence reduced to 364 days under the plain wording of section 18.5, the court erred when it denied his motion to reduce his sentence.
DISPOSITION
The trial court's May 11, 2017, order denying Valenzuela's motion to reduce his sentence to 364 days is reversed. Valenzuela's sentence of 365 days, which was imposed and suspended on August 14, 1996, and reimposed and suspended on April 23, 1999, is reduced from 365 days to 364 days. In all other respects, the court's May 11, 2017, orders are affirmed.
