P. v. Gabrielson

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Filed 7/25/16 P. v. Gabrielson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN GABRIELSON,
Defendant and Appellant.
A143772
(Lake County
Super. Ct. No. CR932764)
Appellant John Gabrielson pleaded no contest to one count of auto theft and to two
sentence enhancements under Penal Code section 667.5, subdivision (b).1 The sentence
enhancements were based on his having served prior prison terms for drug offenses that
were felonies at the time of the sentencing. After the passage of Proposition 47 (The Safe
Neighborhoods and Schools Act), Gabrielson petitioned to have the drug offenses
reduced to misdemeanors and, on that basis, to reduce his sentence by having the
sentence enhancements removed. The trial court agreed to reduce the two drug offenses
to misdemeanors, but it declined to remove the enhancements. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2013, Gabrielson entered a plea of no contest to one felony count of auto
theft (Veh. Code, § 10851, subd. (a)). He also pleaded no contest to having served two
prior prison terms for prior felony drug convictions (Health & Saf. Code, §§ 11377,
1 All subsequent references are to the Penal Code unless otherwise specified.

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subd. (a), 11350, subd. (a)). The plea to the prior prison terms meant that Gabrielson
qualified for sentence enhancements under section 667.5, subdivision (b), which requires
the trial court to impose a one-year enhancement for each qualifying prior prison term.
The court sentenced Gabrielson to five years in prison: three years for the auto-theft
conviction and two years for the enhancements (one year for each prison prior).
Proposition 47 was passed by voters on November 4, 2014, and it is codified in
section 1170.18. The section reclassifies a series of non-violent felonies as
misdemeanors. (§ 1170.18, subds. (f)-(h).) The drug offenses underlying Gabrielson’s
sentence enhancements, Health and Safety Code sections 11377, subdivision (a), and
11350, subdivision (a), are among those that have been reclassified.
A month after Proposition 47 went into effect, and about a year and a half after his
plea, Gabrielson filed a petition for resentencing under section 1170.18. At the hearing,
the court reduced the drug offenses underlying Gabrielson’s sentence enhancements to
misdemeanors, but it declined to strike the enhancements.
II.
DISCUSSION
Gabrielson’s chief contention is that once the offenses giving rise to his two prior
prison terms were reduced to misdemeanors under section 1170.18, they could no longer
support the prior-prison-term sentence enhancements under section 667.5,
subdivision (b). We reject this argument.2
Section 667.5, subdivision (b), provides that where a current offense is any felony
for which a prison sentence is imposed, “the court shall impose a one-year term for each
prior separate prison term . . . imposed . . . for any felony.” Imposition of a prior-prison-
2 After briefing in this case became final, the California Supreme Court granted review to
decide whether sentence enhancements under section 667.5, subdivision (b), should be
removed when the offenses giving rise to the prison terms upon which they are based are
reduced to misdemeanors under Proposition 47. (People v. Valenzuela (2016)
244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900.) Respondent has
diligently informed the court of relevant new authority since this case became fully
briefed.

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term enhancement under the statute “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.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) Gabrielson does not dispute
that three elements under the statute are still met. He contends, however, that the first
element no longer applies, because his felony drug convictions were reduced to
misdemeanors.
Section 1170.18, subdivisions (a) and (b) provide that a person serving a sentence
for a felony conviction who would have been guilty of a misdemeanor under
Proposition 47 may petition for a recall of sentence and request resentencing, and that the
trial court shall grant the petition if certain conditions have been met. Subdivisions (f)
and (g) provide a similar procedure for a person who has completed a sentence for a
felony conviction to file an application to have the felony designated as a misdemeanor.
Any felony conviction that is reduced to a misdemeanor under these provisions “shall be
considered a misdemeanor for all purposes.” (§ 1170.18, subd. (k).) But these
procedures do not provide for “either the recall and resentencing or the redesignation,
dismissal, or striking of sentence enhancements.” (People v. Jones (July 7, 2016,
E063745) __ Cal.App.4th __.)
In arguing that the court should have stricken his enhancements, Gabrielson relies
on People v. Park (2013) 56 Cal.4th 782 (Park), but this reliance is misplaced. After the
defendant in Park successfully completed the terms of his probation for a “wobbler”
offense that was charged as a felony, the trial court reduced the offense to a misdemeanor
under section 17, subdivision (b)(3). (Park, at p. 787.) The following year, defendant
was charged with a separate crime, and the prosecution also alleged a five-year serious-
felony sentence enhancement under section 667, subdivision (a), based on the felony
conviction that had been reduced to a misdemeanor. (Park, at pp. 787-788.) After a jury
convicted defendant, the trial court imposed the sentence enhancement based on
defendant’s having previously been convicted of a serious felony. (Id. at p. 788.) The

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Supreme Court reversed the enhancement, noting that when the felony was reduced to a
misdemeanor, it became a “misdemeanor for all purposes” under section 17,
subdivision (b), and thus could not be the basis for an enhancement in a subsequent
criminal proceeding. (Park, at pp. 795, 798.) But the court noted that there was “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.) This passage describes
precisely the situation here: Gabrielson was convicted of the present crime and subject to
the sentence enhancements before the crimes upon which they were based were reduced
to misdemeanors. Under Park, Gabrielson remains subject to the sentence enhancements
under section 667.5, subdivision (b). (See also People v. Abdallah (2016) 246
Cal.App.4th 736, 747-748 [Proposition 47 precludes court from using prior felony for
sentence enhancement under § 667, subd. (b), where defendant is sentenced after prior
conviction is reduced to misdemeanor, following Park]; but see People v. Acosta (2016)
247 Cal.App.4th 1072, 1078 [Proposition 47 has no effect on prior-prison-term
enhancement because statute “does not alter the historical fact of [a] prison term
service”].)
Because we follow the reasoning of the Supreme Court’s decision in Park, we also
reject Gabrielson’s argument that the trial court’s ruling goes against the purpose of
Proposition 47 “to ensure that prison spending is focused on violent and serious offenses,
[and] to maximize alternatives for nonserious, nonviolent crime.” (Ballot Pamp., Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 2 p. 70.) “The voters enacted Proposition 47 after
Park, and we presume they were aware of the Supreme Court’s interpretation of the
California Constitution in Park.” (People v. Abdallah, supra, 246 Cal.App.4th at p. 747;
see also People v. Acosta, supra, 247 Cal.App.4th at p. 1078 [striking enhancement under
§ 667.5, subd. (b), “would be a windfall beyond the imagination of the drafters of
Proposition 47”].) We have been provided with no evidence or arguments that would
justify our conclusion that the voters’ intent was otherwise.

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III.
DISPOSITION
The order denying Gabrielson’s request to strike his two sentence enhancements
under section 667.5, subdivision (b), is affirmed.
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Dondero, J.

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