P. v. Burrell

Filed 1/29/18 P. v. Burrell CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRRAN D. BURRELL,
Defendant and Appellant.
B280063
(Los Angeles County
Super. Ct. No. MA060633)
APPEAL from a judgment of the Superior Court of Los Angeles
County, Lisa M. Chung, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and David W. Williams, Deputy Attorneys
General, for Plaintiff and Respondent.

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Defendant Tyrran D. Burrell appeals from the superior court’s
denial of his motion to modify his sentence to strike four enhancements
under Penal Code section 667.5, subdivision (b),1 on the ground that the
convictions underlying those enhancements have been reclassified
under Proposition 47 as misdemeanors and no longer support the
enhancements. We affirm.
BACKGROUND
On December 10, 2013, a jury convicted defendant of possession of
a firearm by a felon (§ 29800, subd. (a)(1)) and possession of
ammunition (§ 30305, subd. (a)(1)). He admitted one prior strike
conviction (§§ 667, subds. (a) — (i), 1170.12, subds. (a) — (d)) and six
prior prison terms (§ 667.5, subd. (b)). The court sentenced him to a
total term of 12 years in state prison (double the upper term of three
years for felon in possession of a firearm, plus one year each for the six
prison priors, the sentence on the possession of ammunition stayed
under section 654). Defendant appealed from the judgment.
While the appeal was pending, he filed four petitions for
resentencing pursuant to section 1170.18, a provision of Proposition 47,
in the superior courts of origin, seeking reduction of the felonies
underlying four of his section 667.5, subdivision (b) prior prison terms
to misdemeanors. On October 14, 2015, appellant’s petitions were
granted in case Nos. MA020861 and MA033109. On May 6, 2015,
1 All undesignated section references are to the Penal Code.

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appellant’s petition was granted in case No. MA043385. On January
22, 2015, appellant’s petition was granted in case No. MA053732.
On February 2, 2016, we affirmed the judgment of conviction in a
nonpublished opinion, B254383. The Supreme Court denied review on
April 20, 2016, and the remittitur issued on May 9, 2016.
On December 28, 2016, after the case was final on appeal,
appellant moved in the superior court to modify his sentence to strike
four prior prison terms (MA020861, MA033109, MA043385, MA053732)
on the ground that the reduction of the underlying convictions to
misdemeanors precluded imposition of the terms under section 667.5,
subdivision (b). The trial court denied appellant’s request.
DISCUSSION
On appeal, defendant renews his contention that four of his prior
prison term enhancements under section 667.5, subdivision (b), must be
stricken because the convictions underlying them have been reduced to
misdemeanors under Proposition 47. We disagree.
Section 667.5, subdivision (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 custody and the commission of a new offense
resulting in a felony conviction.’” (In re Preston (2009) 176 Cal.App.4th

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1109, 1115.) The four convictions in the instant case met all four
elements of section 667.5, subdivision (b) at the time the enhancement
was imposed. Defendant argues that under section 1170.18, subdivision
(k), which provides that any offense reduced to a misdemeanor under
Proposition 47 “shall be considered a misdemeanor for all purposes,” the
reclassified convictions no longer satisfy the first element.
This issue is currently under review by the California Supreme
Court in People v. Valenzuela (2016) 244 Cal.App.4th 692, review
granted March 30, 2016, S232900, as well as several other cases in
which review has been granted and held pending resolution of
Valenzuela. In In re Diaz (2017) 8 Cal.App.5th 812, review granted
May 10, 2017, S240888, this court held that “[t]he redesignation under
Proposition 47 of a prior felony conviction to a misdemeanor operates
prospectively, from the date of the redesignation forward, and not
retroactively, as if the conviction always had been a misdemeanor.” (Id.
at p. 817.) Therefore, the reclassification of a felony conviction as a
misdemeanor after the original sentence does not preclude its use to
support a section 667.5, subdivision (b) enhancement. (Ibid.) We
adhere to that holding and need not repeat our reasoning at length. We
briefly observe that in Diaz, we reasoned that the language and purpose
of Proposition 47 show that reclassification of an offense should be given
only prospective effect (8 Cal.App.5th at p. 820), and the decisions in
People v. Flores (1979) 92 Cal.App.3d 461, In re Estrada (1965) 63
Cal.2d 740 do not compel the conclusion that reclassification of an
offense under Proposition 47 should be given retroactive effect (8
Cal.App.5th at p. 821). Moreover, as defendant notes in his opening

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brief on appeal in the instant case, most courts have taken the position,
as we did in Diaz, that section 1170.18 does not apply retroactively to
invalidate section 667.5, subdivision (b) enhancements. (See People v.
Johnson (2017) 8 Cal.App.5th 111, 115, review granted April 12, 2017,
S240509; People v. Jones (2016) 1 Cal.App.5th 221, 228-229, review
granted Sept. 14, 2016, S235901; People v. Valenzuela, supra, 244
Cal.App.4th 692; People v. Carrea (2016) 244 Cal.App.4th 966, review
granted April 27, 2016, S233011; 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 granted May 11, 2016, S233201.)
We agree with those decisions, adhere to our holding in Diaz, and
conclude that the trial court did not err in denying defendant’s motion
to modify his sentence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J. MANELLA, J.

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