P. v. McCurdy

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Filed 12/29/17 P. v. McCurdy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
JAMES CLAYTON MCCURDY,
Defendant and Appellant.
A149417, A151358
(Napa County
Super. Ct. No. CR157198)
Defendant James McCurdy pleaded no contest to one count of heroin
transportation and admitted to three sentence enhancements under Penal Code
section 667.5, subdivision (b) (section 667.5(b)) based on his having served prior prison
terms for felony convictions.1 After the passage of Proposition 47 (The Safe
Neighborhoods and Schools Act), he successfully applied for resentencing on one of
those prior convictions, a 2009 conviction for a drug offense, and the offense was
reduced to a misdemeanor. He then petitioned to strike the section 667.5(b) sentence
enhancement imposed in this case based on the 2009 conviction, and the trial court
denied the petition.2
1 All further statutory references are to the Penal Code unless otherwise noted.
2 In appeal no. A149417, McCurdy appeals from a September 13, 2016 order
denying his request to reduce the heroin transportation conviction in this case to a
misdemeanor. We ordered that appeal consolidated with appeal no. A151358, which is
his appeal from a May 12, 2017 order denying his petition to strike one of the section
667.5(b) enhancements. His briefing does not raise any claims involving the September
2016 order, and we do not discuss it further.

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Our state Supreme Court is currently considering whether a sentence enhancement
under section 667.5(b) must be stricken when the offense that forms the basis of the
enhancement is subsequently reduced to a misdemeanor under Proposition 47. (People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900.)
Pending a decision in Valenzuela, we join the other Courts of Appeal that have addressed
the issue and conclude that Proposition 47 does not have such a retroactive effect. We
therefore conclude that the trial court properly declined to strike the enhancement and
affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The facts underlying McCurdy’s conviction are not relevant to the issues on
appeal. In June 2011, the Napa County District Attorney filed an information charging
McCurdy with felony counts of heroin possession and heroin transportation.3 The
information also alleged that he had a prior strike and three felony convictions with a
prior prison term under section 667.5(b), including a 2009 conviction for possession of a
controlled substance.4 As part of a negotiated plea, he pleaded no contest to the
transportation count and admitted the three section 667.5(b) allegations, and the
possession count and prior-strike allegation were dismissed.
In August 2011, the trial court sentenced McCurdy to a total term of seven years in
prison, comprised of terms of four years for the transportation conviction and consecutive
terms of one year each for the prior prison terms. The court suspended execution of the
sentence and placed him on five years of formal probation.
3 The charges were brought under Health and Safety Code sections 11350,
subdivision (a) (possession) and 11352, subdivision (a) (transportation).
4 The prior strike allegation was made under sections 667, subdivisions (b)
through (i) and 1170.12, subdivisions (a) through (d). The 2009 conviction for
possession of a controlled substance was under Health and Safety Code section 11377,
subdivision (a).

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Two years later, in October 2013, the trial court granted the probation
department’s motion to transfer the case to Sonoma County, where McCurdy had moved.
The parties agree that in June 2014, the Sonoma County trial court terminated his
probation and executed the seven-year prison sentence.
Later that year, the voters approved Proposition 47, and it took effect on
November 5, 2014. (People v. Valencia (2017) 3 Cal.5th 347, 368.) Among the offenses
that Proposition 47 reduced to misdemeanors is the possession offense of which
McCurdy was convicted in 2009. (§ 1170.18, subd. (a); see Health & Saf. Code,
§ 11377.) Relying on Proposition 47, McCurdy eventually filed an application in the
Napa County trial court to reduce the possession offense underlying the 2009 conviction
to a misdemeanor, and the application was granted. He then filed a petition to strike the
section 667.5(b) enhancement based on the 2009 conviction, and the petition was
denied.5
II.
DISCUSSION
McCurdy contends that the offense underlying his 2009 conviction could no
longer support a prior-prison-term enhancement under section 667.5(b) once it was
reduced to a misdemeanor. We are not persuaded.
Section 667.5(b) provides that under certain circumstances when the current
offense is a felony, the trial court “shall impose a one-year term for each prior separate
prison term . . . imposed . . . for any felony.” “ ‘Imposition of a sentence enhancement
under . . . section 667.5[(b)] 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
5 McCurdy points out that the proper venue for filing a petition to recall a sentence
under Proposition 47 is unclear when, as here, the case was transferred to another county
for probation, an issue currently pending before our state Supreme Court. (People v.
Adelmann (2016) 2 Cal.App.5th 1188, review granted Nov. 9, 2016, S237602.) But we
need not resolve any potential venue issue here because the Attorney General concedes
that McCurdy’s petition “was properly filed with the Napa County Superior Court.”

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custody and the commission of a new offense resulting in a felony conviction.’ ” (In re
Preston (2009) 176 Cal.App.4th 1109, 1115.) McCurdy does not contest that his 2009
conviction met all four elements of section 667.5(b) at the time the enhancement was
imposed. Instead, he argues that under section 1170.18, subdivision (k) (section
1170.18(k)), which provides that any offense reduced to a misdemeanor under
Proposition 47 “shall be considered a misdemeanor for all purposes,” the 2009 conviction
no longer satisfies the first element.
Under section 1170.18, subdivisions (a) and (b), 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 to request resentencing, and 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(k).) Numerous Court of Appeal decisions
have concluded that these provisions do not include a procedure for striking sentencing
enhancements and that Proposition 47 does not apply retroactively to invalidate
enhancements under section 667.5(b) based on the language of section 1170.18(k). (E.g.,
In re Diaz (2017) 8 Cal.App.5th 812, 817-818, review granted May 10, 2017, S240888;
People v. Johnson (2017) 8 Cal.App.5th 111, 115, review granted Apr. 12, 2017,
S240509; People v. Jones (2016) 1 Cal.App.5th 221, 228-229, review granted
Sept. 14, 2016, S235901.)
We agree with those decisions and need not repeat their reasoning at length here.
Briefly, however, nothing about the language, intent, or purposes of Proposition 47
overcomes the presumption that no part of the Penal Code is retroactive unless expressly
provided. (See In re Diaz, supra, 8 Cal.App.5th at p. 820; People v. Johnson, supra,
8 Cal.App.5th at pp. 119-122; People v. Jones, supra, 1 Cal.App.5th at pp. 229-230.)
The cases McCurdy cites that hold that a prior prison term served for an offense reduced
to a misdemeanor before a section 667.5(b) enhancement is imposed are inapposite,

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because they apply Proposition 47 prospectively, not retroactively. (See, e.g., People v.
Call (2017) 9 Cal.App.5th 856, 863-864; People v. Abdallah (2016) 246 Cal.App.4th
736, 739-740, 743, 747; see also People v. Park (2013) 56 Cal.4th 782, 802.)
McCurdy also makes the cursory contention that the trial court’s refusal to strike
the section 667.5(b) enhancement violated his federal due process rights by “fail[ing] to
honor the procedures attendant to a state-created liberty interest.” The only authority on
which he relies, Hicks v. Oklahoma (1980) 447 U.S. 343, concerned a defendant’s state
right to have punishment fixed by a jury, and he makes no attempt to explain how that
case applies to Proposition 47. His claim fails.
III.
DISPOSITION
The trial court’s orders of September 13, 2016, and May 12, 2017, are affirmed.

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_________________________
Humes, P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.

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