P. v. Cota

SEE CONCURRING AND DISSENTING OPINION
Filed 7/2/18 P. v. Cota CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES COTA,
Defendant and Appellant.
F073303
(Super. Ct. No. BF160857A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Catherine
Chatman, and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

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2.
Charles Cota (defendant) stands convicted, following a jury trial, of assault with a
deadly weapon, in the commission of which he personally inflicted great bodily injury
(Pen. Code,1 §§ 245, subd. (a)(1), 12022.7; count 1), battery with serious bodily injury, in
the commission of which he personally used a deadly weapon (§§ 243, subd. (d), 12022,
subd. (b)(1); count 2), and child abuse under circumstances likely to produce great bodily
harm or death, in the commission of which he personally inflicted great bodily injury
(§§ 273a, subd. (a), 12022.7; count 3). Following a bifurcated court trial, he was found to
have previously been convicted of a serious felony (§ 667, subd. (a)) that was also a
strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and to have served six prior prison
terms (§ 667.5, subd. (b)). He was sentenced to a total unstayed term of 25 years in
prison, and ordered to pay restitution and various fees, fines, and assessments.
On appeal, we hold: (1) Sufficient evidence supports defendant’s conviction on
count 3; (2) Sufficient evidence supports the trial court’s finding that defendant’s prior
aggravated assault conviction constituted a serious felony and, hence, a strike; (3) The
trial court did not improperly impose five-year and one-year enhancements based on the
same prior conviction; and (4) Defendant’s 1989 prior prison term enhancement was
properly imposed, and defendant’s alternative claim of ineffective assistance of counsel
fails. Accordingly, we affirm, but will direct the correction of a clerical error contained
in the sentencing minutes.
FACTS
At approximately 2:15 a.m. on June 19, 2015, the cashier at the Valero gas station
on California and Union Avenues, in Bakersfield, saw two young African-American
males ride up on bicycles. One entered the store, while the other remained outside,
talking on his cell phone while he rode in circles around the gas pumps.
1 All statutory references are to the Penal Code unless otherwise stated.

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3.
While the cashier assisted the one who came inside, he saw someone running. The
person was wearing clothing similar to that worn by defendant, whom the cashier had
told to leave the premises about 15 minutes earlier. The young man who had been riding
around the gas pumps came in, saying, “he got me, he got me,” then lay down in the
doorway. The cashier called 911 and put pressure on the young man’s back, which was
bleeding.
Bakersfield Police Officer Hensley responded to the gas station. Upon arrival, he
observed Stephen B. lying in the doorway of the business.2 Stephen had an
approximately one-inch laceration to his lower middle back and a small laceration to his
left elbow, both of which were closed by staples at the hospital.
In viewing the gas station’s surveillance footage at trial, the manager of the gas
station recognized the assailant as defendant.3 Defendant was frequently at the station,
asking for money and alcohol. When he was seen at the gas station a few days after the
stabbing, the manager called the police.
DISCUSSION
I
COUNT 3
Defendant contends the evidence is insufficient to sustain his conviction on
count 3, because it fails to establish Stephen was under 18 years of age. That the victim
was a child — someone under 18 years old — is an element of a violation of section
273a, subdivision (a). (See People v. Lee (1991) 234 Cal.App.3d 1214, 1228; People v.
Thomas (1976) 65 Cal.App.3d 854, 857-858.)
2 In order to protect his privacy, we refer to Stephen by his first name. No
disrespect is intended.
3 Surveillance video showing the incident was played for the jury.

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4.
The applicable legal principles are settled. The test of sufficiency of the evidence
is whether, reviewing the whole record in the light most favorable to the judgment below,
substantial evidence is disclosed such that a reasonable trier of fact could find the
essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26
Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial
evidence is that evidence which is “reasonable, credible, and of solid value.” (People v.
Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” (People
v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence
(People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses,
or resolve factual conflicts, as these are functions reserved for the trier of fact (In re
Frederick G. (1979) 96 Cal.App.3d 353, 367). “If the circumstances reasonably justify
the [trier of fact’s] findings, reversal is not warranted merely because the circumstances
might also be reasonably reconciled with a contrary finding. [Citations.]” (People v.
Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if “it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of
review is applicable regardless of whether the prosecution relies primarily on direct or on
circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Stephen did not testify at trial. Jurors were, however, shown photographs of him
taken a short time after the stabbing. In addition, Hensley testified Stephen was
approximately 16 years old, while Detective Paglia, who met with Stephen just under a
month after the incident, testified Stephen was approximately 16 or 17 years old.
This evidence, though circumstantial, was sufficient to establish Stephen was
under 18 years old at the time of the incident. “ ‘Age is provable by the inference of any
competent observing witness.’ ” (People v. Bond (1910) 13 Cal.App. 175, 191.)
“ ‘Experience teaches us that corporal appearances are approximately an index of the age

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5.
of their bearer, particularly for the marked extremes of old age and youth. In every case
such evidence should be accepted and weighed for what it may be in each case worth. In
particular the outward physical appearance of an alleged minor may be considered in
judging of his age . . . .’ [Citations.]” (People v. Montalvo (1971) 4 Cal.3d 328, 335,
italics omitted.)
We recognize defendant’s jury saw only photographs of Stephen, rather than
viewing him in person. There is no suggestion, however, that the photographs — which
are contained in the record on appeal and which we have reviewed — are in any way
misleading with respect to Stephen’s appearance, or that a live view of him would have
been materially different. Moreover, jurors heard the officers’ testimony, and were
instructed both that the prosecution had to prove Stephen was under 18 years old with
respect to count 3, and on the consideration of lay opinion testimony.
We also recognize the officers gave approximations of Stephen’s age. His exact
age was not an element of the offense, however. Rather, he merely had to be under the
age of majority. The officers’ testimony in this regard, coupled with the photographs,
constituted evidence that was “reasonable, credible, and of solid value.” (People v.
Johnson, supra, 26 Cal.3d at p. 578; see People v. Caldwell (1921) 55 Cal.App. 280,
296.) Its weight was for jurors to determine, as was the validity of the cashier’s
approximation that Stephen and his companion, to whom the cashier referred as “kids,”
were “[p]robably around [their] 20’s.” (People v. Provencio (1989) 210 Cal.App.3d 290,
306.)4
4 It has been suggested that if age is to be determined from appearance and the
subject is in court, the jury can resolve the question without the aid of opinion evidence.
(People v. Caldwell, supra, 55 Cal.App. at p. 296.) We need not decide whether this is so
where photographs of the subject are concerned, or whether, as required for admission of
lay opinion testimony, the approximation of Stephen’s age was “[h]elpful to a clear
understanding of” the officers’ testimony. (Evid. Code, § 800, subd. (b).) That testimony
was given without objection, and so “ ‘ “[took] on the attributes of competent proof when

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6.
II
THE 2012 CONVICTION
The information alleged, and the court found, that defendant was convicted in
2012 of assault with a deadly weapon other than a firearm, in violation of section 245,
subdivision (a)(1), and that the offense was a serious felony and a strike. As a result, the
trial court doubled the base term imposed on count 3, which it designated as the principal
term, and imposed a consecutive five-year enhancement.
The offense underlying the conviction was committed in 2011. At that time,
subdivision (a)(1) of section 245 proscribed both assault with a deadly weapon other than
a firearm and assault by means of force likely to produce great bodily injury.5 Assault
with a deadly weapon is a serious felony, but assault by means of force likely to produce
great bodily injury (the “GBI prong”) is not, absent the additional element of personal
infliction of great bodily injury. (People v. Delgado (2008) 43 Cal.4th 1059, 1065
(Delgado).)
In the present case, the People presented a certified Criminal Justice Information
System (CJIS) printout reflecting that during defendant’s change of plea hearing, he was
advised of the consequences of a plea to a strike or serious felony. The People also
presented certified copies of prison records (§ 969b) that included the abstract of
judgment in the case. The abstract of judgment showed defendant was convicted, by
plea, of violating “PC 245(a)(1),” “ASSAULT W/DEADLY WEAPON.”
considered upon the question of sufficiency of the evidence to support” ’ ” the jury’s
finding. (People v. Panah (2005) 35 Cal.4th 395, 476.)
5 As of January 1, 2012, subdivision (a)(1) of section 245 now proscribes assault
with a deadly weapon or instrument other than a firearm, while subdivision (a)(4) of the
statute proscribes assault by any means of force likely to produce great bodily injury. All
references to section 245, subdivision (a)(1) are to the statute as it existed before this
amendment.

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7.
Defendant now contends the evidence was insufficient to establish his 2012
conviction was a serious felony. The California Supreme Court has summarized the
applicable law as follows:
“The People must prove each element of an alleged sentence
enhancement beyond a reasonable doubt. [Citation.] Where, as here, the
mere fact that a prior conviction occurred under a specified statute does not
prove the serious felony allegation, otherwise admissible evidence from the
entire record of the conviction may be examined to resolve the issue.
[Citations.][6]
“A common means of proving the fact and nature of a prior
conviction is to introduce certified documents from the record of the prior
court proceeding and commitment to prison, including the abstract of
judgment describing the prior offense. [Citations.]
“ ‘[T]he trier of fact is entitled to draw reasonable inferences from
certified records offered to prove a defendant suffered a prior conviction
. . . .’ [Citations.] ‘[O]fficial government records clearly describing a prior
conviction presumptively establish that the conviction in fact occurred,
assuming those records meet the threshold requirements of admissibility.
[Citation.] Some evidence must rebut this presumption before the
authenticity, accuracy, or sufficiency of the prior conviction records can be
called into question.’ [Citation.]
“Thus, if the prosecutor presents, by such records, prima facie
evidence of a prior conviction that satisfies the elements of the recidivist
6 Recently, in People v. Gallardo (2017) 4 Cal.5th 120, the court stated: “[W]hen
the criminal law imposes added punishment based on findings about the facts underlying
a defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a jury — not a
sentencing court — will find such facts, unanimously and beyond a reasonable doubt.’
[Citation.] While a sentencing court is permitted to identify those facts that were already
necessarily found by a prior jury in rendering a guilty verdict or admitted by the
defendant in entering a guilty plea, the court may not rely on its own independent review
of record evidence [in Gallardo, the preliminary hearing testimony] to determine what
conduct ‘realistically’ led to the defendant’s conviction. Here, the trial court violated
defendant’s Sixth Amendment right to a jury trial when it found a disputed fact about the
conduct underlying defendant’s assault conviction that had not been established by virtue
of the conviction itself.” (Id. at pp. 124-125.) Gallardo does not affect our review of the
trial court’s determination in defendant’s case.

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8.
enhancement at issue, and if there is no contrary evidence, the fact finder,
utilizing the official duty presumption, may determine that a qualifying
conviction occurred. [Citations.]
“However, if the prior conviction was for an offense that can be
committed in multiple ways, and the record of the conviction does not
disclose how the offense was committed, a court must presume the
conviction was for the least serious form of the offense. [Citations.] In
such a case, if the statute under which the prior conviction occurred could
be violated in a way that does not qualify for the alleged enhancement, the
evidence is thus insufficient, and the People have failed in their burden.
[Citations.]
“On review, we examine the record in the light most favorable to the
judgment to ascertain whether it is supported by substantial evidence. In
other words, we determine whether a rational trier of fact could have found
that the prosecution sustained its burden of proving the elements of the
sentence enhancement beyond a reasonable doubt. [Citations.]” (Delgado,
supra, 43 Cal.4th at pp. 1065-1067.)
In Delgado, the defendant was alleged to have suffered a prior conviction under
section 245, subdivision (a)(1), which, it was further alleged, constituted a serious felony.
The People’s sole proof was a package of certified documents pertaining to the
conviction, including an abstract of judgment that “specified the statute violated as
‘[Penal Code section] 245(A)(1)’ and described the crime as ‘Asslt w DWpn.’ ”
(Delgado, supra, 43 Cal.4th at p. 1063.) The state high court found this evidence
sufficient to sustain the trial court’s finding that the prior conviction was for a serious
felony. (Id. at p. 1072.) The court explained:
“This . . . description [of the offense set out in the abstract of
judgment] tracks one, but only one, of the two specific, discrete,
disjunctive, and easily encapsulated forms of aggravated assault set forth in
section 245(a)(1). . . . [T]he instant abstract does not mention the other
specific, discrete, and disjunctive form of section 245(a)(1) violation,
involving force likely to produce GBI. . . . [I]t does not simply cite the
statute violated, without any reference to the underlying conduct. Any
inference that this notation simply refers to the statute generally is thus
sharply diminished.

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9.
“The People therefore presented prima facie evidence, in the form of
a clear, presumptively reliable official record of defendant’s prior
conviction, that the conviction was for the serious felony of assault with a
deadly weapon. Defendant produced no rebuttal evidence. Utilizing the
presumption of official duty, and drawing reasonable inferences from the
official record, the trial court, as a rational trier of fact, could thus properly
find beyond reasonable doubt that a prior serious felony conviction had
occurred.” (Delgado, supra, at pp. 1069-1070, fn. omitted.)
Delgado is dispositive here. Defendant’s reliance on People v. Learnard (2016) 4
Cal.App.5th 1117, 1120-1121, 1124 (insufficient evidence where abstract of judgment
described offense as “ ‘Assault w deadly wpn/GBI’ ”), review granted February 22, 2017,
S238797, is unavailing.
Defendant says that if we conclude the evidence was sufficient, we must
nevertheless strike the one-year enhancement imposed, pursuant to section 667.5,
subdivision (b), for the 2012 conviction. The Attorney General concedes defendant is
correct. We do not accept the concession. Rather, we conclude the sentencing minutes
contain a clerical error that must be corrected.
As previously stated, the information alleged defendant served six prior prison
terms within the meaning of section 667.5, subdivision (b). One of these arose from the
2012 conviction, which also gave rise to a five-year enhancement pursuant to section
667, subdivision (a).
The parties accurately observe that a sentence cannot be enhanced both for a prior
conviction and for a prison term imposed for the same conviction. (People v. Jones
(1993) 5 Cal.4th 1142, 1144-1145.) Rather, “when multiple statutory enhancement
provisions are available for the same prior offense, one of which is a section 667
enhancement, the greatest enhancement, but only that one, will apply.” (Id. at p. 1150.)
Here, the clerk’s sentencing minutes reflect dismissal of “ALLEGATION
NUMBER 9,” but the imposition of a five-year enhancement, pursuant to section 667,
subdivision (a), for “ALLEGATION NUMBER 3” and a consecutive one-year
enhancement, pursuant to section 667.5, subdivision (b), for “ALLEGATION

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10.
NUMBER 4.” Counting the section 12022.7 allegation as number 1 with respect to
count 3 of the information, as it appears the clerk did, allegation number 3 is the serious
felony enhancement, and allegation number 4 is the prior prison term enhancement,
arising from defendant’s 2012 conviction.7
At sentencing, however, the trial court stated: “[I]t’s going to be ordered that the
Defendant[] [is] to serve the upper term of 12 years regarding Count 3. Serve an
additional three years pursuant to [section] 12022.7, and an additional five years pursuant
to [section] 667(a), and five more years based on five sections [sic] of 667.5(b).
Although the Defendant was found guilty of six violations of [section] 667.5(b), one of
them was unable to be utilized as the same term of imprisonment as the [section] 667(a)
enhancement. [¶] . . . [¶] Therefore, the Defendant will be sentenced as follows: [¶] As
to Count 3, a violation of . . . [s]ection 273A(a) with the [section] 667(e) prior, probation
will be denied and the Defendant will be sent to the Department of Corrections for the
upper term of 12 years; that sentenced [sic] to be enhanced by three years pursuant to
section 12022.7 . . . ; that sentence to be further enhanced by five years pursuant to
section 667(a) . . . ; . . . that sentence to be further enhanced by five years . . . pursuant to
five sections [sic] of 667.5(b) . . . , for a total fixed term of 25 years.” (Italics added.)
It is clear from the foregoing that the trial court did not impose a one-year
enhancement for the 2012 conviction. Because the court’s oral pronouncement of
judgment is, under the circumstances, entitled to greater credence than the clerk’s
minutes, the oral pronouncement of the court controls. (People v. Smith (1983) 33 Cal.3d
596, 599; People v. Rodriguez (2013) 222 Cal.App.4th 578, 586, disapproved on another
ground in People v. Hall (2017) 2 Cal.5th 494, 503-504, fn. 2.) The error in the minutes
7 Allegation number 9 involves a 1985 conviction and prison term resulting from a
violation of section “484/666.” The abstract of judgment shows the imposition of five 1-
year enhancements pursuant to section 667.5, subdivision (b), but does not specify the
basis therefor.

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11.
is a clerical one that we will order corrected. (People v. Mesa (1975) 14 Cal.3d 466, 471;
In re Candelario (1970) 3 Cal.3d 702, 705.)
III
THE 1989 CONVICTION
Sentencing took place on February 24, 2016. Pursuant to section 667.5,
subdivision (b), the trial court imposed a one-year enhancement for defendant’s service
of a prison term as a result of his 1989 conviction, in Monterey County Superior Court
case No. CR14503, for violating Health and Safety Code section 11350, subdivision (a).
On September 7, 2017, the Monterey County Superior Court granted defendant’s
application to have this felony conviction designated as a misdemeanor.8 (§ 1170.18,
subd. (f).)
Defendant now contends the one-year enhancement imposed in his current case
for the 1989 conviction must be stricken, because the underlying felony conviction was
reduced to a misdemeanor for all purposes pursuant to Proposition 47.9 We conclude he
is not entitled to relief.
In People v. Call (2017) 9 Cal.App.5th 856, 859-860, we summarized the voter
initiative known as Proposition 47 as follows: “Proposition 47 was enacted by voters on
November 4, 2014, and went into effect the next day. [Citations.] It reduced certain
felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by
a defendant who was ineligible because he or she had a prior conviction for a ‘super
strike’ offense specified in section 667, subdivision (e)(2)(C)(iv) or an offense requiring
8 The information erroneously shows the case as one arising in Kern County
Superior Court.
By separate order, we have taken judicial notice of the Monterey County Superior
Court’s order reducing defendant’s 1989 conviction.
9 The issue is currently on review before the California Supreme Court. (E.g.,
People v. Valenzuela (2016) formerly 244 Cal.App.4th 692, review granted March 30,
2016, S232900.)

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12.
sex offender registration pursuant to section 290, subdivision (c). [Citations.] Insofar as
is pertinent here, it also provided a mechanism by which a person who completed his or
her sentence for a conviction of a felony that was made a misdemeanor by the [voter
initiative] could apply to the trial court that entered the judgment of conviction and have
the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)”
Subdivision (k) of section 1170.18 provides, with exceptions not pertinent here, that
when a felony conviction has been redesignated as a misdemeanor, it “shall be considered
a misdemeanor for all purposes . . . .”
In People v. Johnson (2017) 8 Cal.App.5th 111, review granted April 12, 2017,
S240509 (Johnson), we held that where, as in defendant’s case, a sentence enhanced by a
section 667.5, subdivision (b) prior prison term had already been imposed at the time the
felony that gave rise to the prison term was reduced to a misdemeanor pursuant to
Proposition 47, the redesignation of that prior felony did not alter the current sentence.
(Johnson, supra, at p. 115.) Informing our analysis were the California Supreme Court’s
discussion, in People v. Park (2013) 56 Cal.4th 782, of the analogous “misdemeanor for
all purposes” language contained in section 17, subdivision (b)(3); section 3’s
presumption of prospective operation; the qualification to this presumption set forth in In
re Estrada (1965) 63 Cal.2d 740; voters’ intent in enacting Proposition 47; and the
purpose of an enhancement under section 667.5, subdivision (b). (Johnson, supra, at
pp. 118-122.) We concluded: “Defendant served a prison term for the prior convictions
at a time the offenses were felonies. It is the service of that prison term, coupled with
defendant’s continuing recidivism, that section 667.5, subdivision (b) punishes. Absent a
clear statement of the electorate’s intent to the contrary — which we do not find — we
conclude that, because defendant served a prison term for his [prior] convictions . . . at a
time when the offenses were felonies, and had his current sentence enhanced accordingly
before the convictions were reduced, he is not entitled to relief.” (Id. at p. 123.)

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13.
We find our reasoning in Johnson to be persuasive, and decline to depart from it.
Because the section 667.5, subdivision (b) enhancement at issue in the present case was
imposed before the underlying felony was reduced to a misdemeanor, defendant is not
entitled to have the enhancement stricken.10
Defendant says that if we reach this conclusion, then his trial attorney violated
defendant’s constitutional right to the effective assistance of counsel by failing to obtain
an order designating the prior conviction as a misdemeanor prior to defendant’s
sentencing hearing in the present case. (See generally People v. Call, supra, 9
Cal.App.5th at pp. 862-863.) Defendant has failed to establish grounds for relief on
appeal.
The burden of proving ineffective assistance of counsel is on the defendant.
(People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to
10 Appellate counsel represents the Monterey County Superior Court also reduced
defendant’s 1985 conviction in case No. CR11173 to a misdemeanor, but says the trial
court in the present case dismissed the section 667.5, subdivision (b) enhancement based
thereon. As explained, ante, the trial court did not dismiss that enhancement. Although
appellate counsel has not asked us to take judicial notice with respect to the 1985
conviction, presumably due to the erroneous belief it was dismissed, our analysis and
conclusions concerning defendant’s 1989 conviction apply equally to his 1985
conviction. Should the California Supreme Court agree with defendant’s position and
transfer this case back to us for reconsideration, we invite appellate counsel to obtain a
certified copy of the Monterey County Superior Court’s order reducing defendant’s 1985
conviction and request that we judicially notice it, so that we may then dispose of both
affected prior convictions.

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14.
undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-
694.)
“[O]ur review on a direct appeal is limited to the appellate record. [Citations.]”
(People v. Barnett (1998) 17 Cal.4th 1044, 1183.) “Defendant has the burden of
establishing, based on the record on appeal [citations] and on the basis of facts, not
speculation [citation], that trial counsel rendered ineffective assistance. [Citation.]”
(People v. Mattson (1990) 50 Cal.3d 826, 876-877.)
The record on appeal sheds no light whatsoever on what trial counsel did, or did
not do, to attempt to get defendant’s prior conviction redesignated as a misdemeanor
prior to sentencing. Appellate counsel asserts she was able to get it and defendant’s 1985
conviction reduced, but her statements are not evidence (cf. In re Brown (2013) 218
Cal.App.4th 1216, 1218-1219, 1221), and merely speculate that because she was able to
accomplish something, trial counsel necessarily could have done the same thing. But the
record before us does not show when trial counsel learned defendant had one or more
prior convictions that were eligible for reduction, whether counsel made any attempt to
contact the Monterey County public defender’s office, or if a reduction could have been
obtained prior to sentencing in the present case. In short, neither deficient performance
nor prejudice can be established on the record before us. Accordingly, defendant’s claim
fails at this juncture. (See People v. Barnett, supra, 17 Cal.4th at p. 1183.)
DISPOSITION
The judgment is affirmed. The trial court is directed to cause the minutes of the
February 24, 2016, sentencing hearing to be corrected to reflect, as to count 3, that
allegation number 4 (Pen. Code, § 667.5, subd. (b) enhancement based on conviction for
violation of Pen. Code, § 245, subd. (a)(1) on or about Feb. 29, 2012) was dismissed,
while a consecutive term of one year was imposed pursuant to allegation number 9 (Pen.
Code, § 667.5, subd. (b) enhancement based on conviction for violation of Pen. Code,

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15.
§§ 484, 666 on or about July 9, 1985), and to forward a certified copy of same to the
appropriate authorities.
_____________________
DETJEN, J.
I CONCUR:
_____________________
LEVY, Acting P.J.

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FRANSON, J., concurring and dissenting
I respectfully dissent from the majority’s portion of the opinion addressing Cota’s
Penal Code1 section 667.5, subdivision (b) enhancement. (Maj. Opn. at pp. 11-14.)
Section 667.5 And Proposition 47
Cota committed the offenses that are the subject of this appeal in June 2015. Cota
was sentenced on February 24, 2016, and appealed. During his appeal, the Monterey
County Superior Court granted Cota’s application to have his 1989 conviction, for which
a section 667.5, subdivision (b) enhancement was imposed, redesignated as a
misdemeanor under Proposition 47 (§ 1170.18). The petition was granted on September
7, 2017.
The issue as presented is whether the additional one-year enhancement imposed
by the trial court for the 1989 prior conviction must now be stricken because, subsequent
to Cota’s conviction and sentencing, the 1989 prior conviction was reduced to a
misdemeanor pursuant to section 1170.18, subdivision (f). I conclude defendants may
challenge prior prison term enhancements based on reclassified convictions so long as the
enhanced sentence is not subject to a final judgment. (See People v. Evans (2016) 6
Cal.App.5th 894, review granted Feb. 22, 2017, S239635 (Evans).)
On November 4, 2014, before Cota committed the current offenses, voters enacted
Proposition 47, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) As relevant here, the Act reduced certain felony drug
possession offenses to misdemeanors, unless committed by an ineligible defendant.
(People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also
provided a mechanism by which a person who had completed his or her sentence for a
conviction of a felony that was made a misdemeanor by the Act, could apply to the trial
1 All further statutory references are to the Penal Code.

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2.
court that entered the judgment of conviction and have the felony offense designated as a
misdemeanor. (§ 1170.18, subds. (f), (g).) Section 1170.18, subdivision (k) specifies
that any “felony conviction that is … designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes” except resentencing does not permit
the person to own or possess a firearm.
Neither Proposition 47 nor the ballot materials addressed section 667.5 or
recidivist enhancements. However, it is apparent that Proposition 47 was intended to
reduce punishment for “nonserious, nonviolent crimes like petty theft and drug
possession.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3,
subd. (3), p. 70). In addition, one of the purposes of Proposition 47 was to “ensure that
prison spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime ….” (Id., § 2, p. 70.) To achieve that end, the measure
“[r]equire[s] misdemeanors instead of felonies for nonserious, nonviolent crimes like
petty theft and drug possession.” (Id., § 3, subd. (3), p. 70.) The electorate also directed
that Proposition 47 “‘shall be liberally construed to effectuate its purposes.’” (Alejandro
N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222.)
Cota contends the benefits of section 1170.18, subdivision (k) under Proposition
47 should apply to non-final judgments, like his. I agree. The plain language of
Proposition 47 (“shall be considered a misdemeanor for all purposes”) explicitly
anticipates misdemeanor classification will affect the collateral consequences of felony
convictions, except permitting ownership or possession of a firearm. Section 1170.18,
subdivision (k)’s “for all purposes” language is broad, and reflects the voters’ clear
intention that –with the exception of firearm possession—reclassified misdemeanors be
treated like any other misdemeanor offense, including for purposes of enhancements
under section 667.5, subdivision (b). (People v. Abdallah (2016) 246 Cal.App.4th 736,
746.)

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3.
Here, Cota committed his 2015 crimes and sentence was imposed before the 1989
offense was reduced to a misdemeanor in 2017. However, the judgment in his 2015 case
was not final at the time the 1989 conviction was reduced to a misdemeanor because that
judgment was appealed and that appeal is currently pending. (See People v. Towne
(2008) 44 Cal.4th 63, 80-81.) Defendants may challenge prior prison term enhancements
based on reclassified convictions so long as the enhanced sentence is not subject to a final
judgment. (See Evans, supra, 6 Cal.App.5th at p. 904.)
My conclusion that section 1170.18, subdivision (k) applies to non-final
enhancements comports with the holding of In re Estrada (1965) 63 Cal.2d 740
(Estrada), that when an amendatory statute mitigates punishment, contains no savings
clause, and “becomes effective prior to the date the judgment of conviction becomes
final,” the new statute and “not the old statute in effect when the prohibited act was
committed,” applies. (Id. at p. 744.) “The key date [in determining whether a defendant
receives the benefit of a statutory change] is the date of final judgment.” (Ibid.) Like
Estrada and Evans, Proposition 47 took effect, and Cota’s 1989 felony offense was
reduced to a misdemeanor, before Cota’s judgment of conviction was final.
Based on the language of section 1170.18, the voter’s intent in passing the
initiative, Estrada, Evans, and the majority of cases that have addressed this issue, I
conclude Proposition 47 applies to sentence enhancements not yet final and I disagree
with the holding of People v. Johnson (2017) 8 Cal.App.5th 111, 115, review granted
April 12, 2017, S240509.2
2 The issue is currently pending review in the California Supreme Court. (See
People v. Hicks (Aug. 24, 2017, F071016) [nonpub. opn.], review granted Nov. 15, 2017,
S244616; People v. Johnson, supra, 8 Cal.App.5th 111, review granted; In re Diaz
(2017) 8 Cal.App.5th 812, review granted May 10, 2017, S240888; Evans, supra, 6
Cal.App.5th 894, review granted; People v. Jones (2016) 1 Cal.App.5th 221, review
granted Sept. 14, 2016, S235901; People v. Williams (2016) 245 Cal.App.4th 458, review
granted May 11, 2016, S233539; People v. Ruff (2016) 244 Cal.App.4th 935, review

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4.
Cota urges us to strike the prior prison term enhancement which, in essence, asks
this court to resentence him. Since Cota has not been evaluated for resentencing under
subdivisions (a), (b), and (c) of section 1170.18, simply striking the prior prison term on
appeal would usurp the trial court’s discretion to deny resentencing on the ground Cota
poses an “‘unreasonable risk of danger to public safety.’” (See § 1170.18, subds. (b) &
(c); Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [“This discretion to find an
unreasonable risk provides the ‘safety valve’ to protect the public”].) Consequently, I
would remand the matter to the sentencing court to strike the enhancement unless it
determines Cota poses an unreasonable risk of danger to public safety.
_________________________
FRANSON, J.
granted May 11, 2016, S233201; People v. Carrea (2016) 244 Cal.App.4th 966, review
granted Apr. 27, 2016, S233011; People v. Valenzuela (2016) 244 Cal.App.4th 692,
review granted Mar. 30, 2016, S232900.)

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