NEW Appellate Opinion Analyzing the Sentence Enhancements for Offenses Reclassified as Misdemeanors Pursuant to Proposition 47

On June 21, 2018, the California Court of Appeal, Fifth Appellate District, certified for publication an opinion interpreting whether a one-year sentence enhancement under Penal Code section 667.5(b) may be imposed based on offenses redesignated as misdemeanors pursuant to Proposition 47 (Penal Code section 1170.18).[1]

In People v. Guy Barrett Warren (2018) 2018 Cal. App. LEXIS 573, the defendant pled no contest to three offenses involving brandishing a firearm and received a seven-year sentence that included four one-year sentence enhancements under Penal Code section 667.5(b). The defendant argued one of the enhancements was erroneously imposed because the prior offense on which it was based had been reclassified as a misdemeanor pursuant to Proposition 47 prior to sentencing and could therefore no longer qualify as a basis for an enhancement under Section 667.5(b). The defendant further argued the other three enhancements should be reversed as well given that the “wash-out” provision of Section 667.5(b) should apply because, based on the reclassification of other offenses, there was always a period exceeding five years in which the defendant was free from felony convictions.

The intent of Proposition 47 is to “relieve defendant of the burdens of both felony convictions and felony sentences.” Proposition 47 was enacted by voters and allows defendants to petition for a redesigation or resentencing of offenses that would have been a misdemeanor if Proposition 47 was in effect at the time. When the petition is granted, the offense is thereafter considered a “misdemeanor for all purposes,” except regarding recovering gun rights.

Penal Code section 667.5(b), provides a one-year sentence enhancement on a

new felony conviction resulting in a prison sentence where the defendant had previously been convicted of a felony and served a prison term. In Section 667.5(b), a wash-out provision precludes imposition of the enhancement if the defendant is free of both felony convictions and incarceration in prison for five years following release from the previous incarceration.

The Appellate Court interpreted Proposition 47 and Section 667.5(b) and determined: (1) the offense reclassified pursuant to Proposition 47 was a misdemeanor for all purposes and therefore could not be the basis for an enhancement under Section 667.5(b) and (2) the wash-out provision of Section 667.5(b) should be construed to allow a prior felony to wash out provided it is followed by a five-year period free of felony convictions and incarceration in prison (except that such incarceration shall not prevent the prior felony from washing out if it was imposed for an offense that has been designated a misdemeanor or resentenced as a misdemeanor based on Section 1170.18 (Prop 47)).

In this matter, the one-year enhancements were stricken and the sentence was vacated and remanded to the trial court for resentencing.