          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                       )          No. 77427-1-1
                                               )                                               c7,
                     Respondent,               )          DIVISION ONE                C=3

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              v.                               )          UNPUBLISHED OPINIO                 C:3-fl
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DAVID BRENT HAGGARD,                           )                                               "r3
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                     Appellant.                )                                       %0     173411
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                                               )          FILED: June 3, 2019


          HAZELRIGG-HERNANDEZ,    J. — David B. Haggard seeks reversal of his

convictions for unlawful possession of a firearm in the second degree and

possession of methamphetamine.             Haggard contends that his score was

miscalculated because a misdemeanor conviction dismissed after successful

completion of a deferred sentence should not have interrupted the washout period

for his prior class C felony convictions. As we held in State of Washington v. David

B. Haggard, No. 77426-3-1, the plain language of the statute is unambiguous and

does not indicate that the legislature intended dismissal to be equivalent to

vacation. In a Statement of Additional Grounds for Review, Haggard contends that

the trial court erred in finding his prior California convictions to be predicate felonies

for purposes of an unlawful possession of a firearm charge. Because we conclude

that two of the prior convictions could properly serve as predicate offenses, we

affirm.
No. 77427-1-1/2


                                     FACTS

       David Haggard was convicted of three felonies in California in 2002, 2004,

and 2005. In 2002, he pled nobo contendere to unlawful taking and driving of a

motor vehicle. He pled guilty to one count of possession of methamphetamine in

2004 and another in 2005. He was released from incarceration on the last of these

offenses on May 22, 2008.

       Haggard was subsequently charged with assault in the fourth degree in

Snohomish County District Court for events occurring in late 2010 and pleaded

guilty to the reduced charge of disorderly conduct.      He received a deferred

sentence. On March 1, 2012,the Snohomish County District Court found Haggard

to be in compliance with the conditions of his deferred sentence and dismissed the

case ex parte. In April 2015, Haggard petitioned for resentencing on his 2004 and

2005 convictions for possession of methamphetamine as authorized by a change

in California law and the convictions were converted to misdemeanors.

      Haggard was charged with unlawful possession of a firearm in the second

degree and violation of the Uniform Controlled Substances Act. Haggard filed a

motion to exclude his prior California convictions as predicate offenses for the

unlawful possession of a firearms charge. He argued that the possession of

methamphetamine convictions could not be predicate felony convictions because

they had been amended to misdemeanors. He also argued that the taking of a

motor vehicle conviction could not be used as a predicate conviction because it

was constitutionally invalid. The court denied the motion and entered the following

written conclusions of law:


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No. 77427-1-1/3



       The defendant's felony convictions out of the state of California are
       predicate felonies for purposes of an Unlawful Possession of a
       firearm in the Second Degree under RCW 9.41.042:

        1. The resentencing of the Defendant's offenses drug possession
           offenses (FMB005756; FMB007522)as misdemeanors pursuant
           to CPC 1170.18 does not apply retroactively to the Defendant's
          felony convictions and is not retroactive. Therefore those
           convictions remain predicate felony convictions within the
           meaning of RCW 9.41.40. Pursuant to Nelson v. State, 120 Wn.
           App. 470, 479-80, 85 P.3d 912, 917 (2003), in considering the
           effect of a post sentence reduction, dismissal, or expungement of
           a conviction, courts should look to the statute allowing for any
           such post re-designation, dismissal or expungement and its
           legislative intent in order to determine its effect on the underlying
           conviction. The plain language of CPC 1170.18 subsection (k) is
           clear in that convictions re-designated misdemeanors under this
           statute remain felonies for purposes of firearm prohibitions.
           Furthermore, in considering CPC 1170.18 and its effect,
           California courts have specifically found that CPC 1170.18 does
           not apply retroactively (see. People v. Park, 56 Cal. 4th 782, 299
           P.3d 1263, 156 Cal. Rptr. 3d 307 (2013), People v. Rivera, 233
           Cal. App. 4th 1085, 1100, 183 Cal. Rptr. 3d 362, 372(2015)).



        3. The defendant's California felony convictions for Possession of
           Methamphetamine (FMB005756; FMB007522) and Unlawful
           Driving or Taking a Vehicle under California Vehicle Code
          (FMB004969) are constitutionally valid felony convictions that
           have not been vacated and are predicate felonies for purposes of
           an Unlawful Possession of a firearm in the Second Degree under
           RCW 9.41.042


       The trial court engaged in a full colloquy with Haggard and found that he

knowingly, voluntarily, and intelligently waived his right to a jury trial. After a bench

trial, the court found Haggard guilty of both charges.

       Before sentencing, the court heard argument on Haggard's offender score.

The State argued that the governing statute specifically states that vacated



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No. 77427-1-1/4


convictions will not be used to calculate a future offender score but does not

provide the same benefit to charges dismissed pursuant to a deferred sentence.

Because Haggard's 2010 conviction had been dismissed but not vacated, the

State contended that he was not entitled to exclude his prior California felony

convictions from the offender score calculation. Haggard responded that the

distinction between "vacation" and "dismissal" was artificial and the two terms were

interchangeable for misdemeanor convictions. He argued that the statute was

ambiguous because it was unclear whether vacation under RCW 9.96.060 had a

different legal effect than a dismissal under RCW 3.66.067, and the court should

apply the rule of lenity in his favor. The trial court found that the statute was not

ambiguous and that it was clear from the language of the statute that the defendant

had to petition the court and give notice to the prosecutor to have the conviction

vacated. Only then would the court exclude the prior conviction when calculating

an offender score.      Therefore, the court found that Haggard's dismissed

misdemeanor conviction interrupted the washout period for his prior felonies

because the misdemeanor was not vacated.

       Because Haggard's prior felonies did not wash out, the court determined

that he had an offender score of six. Haggard was sentenced to 25 months

imprisonment on the unlawful possession of a firearm charge and 12 months and

1 day on the possession of methamphetamine charge. The sentencing hearings

for this matter and another case in which Haggard was convicted of arson in the

second degree and burglary in the second degree occurred simultaneously. All

four sentences were ordered to run concurrently.        Haggard timely appealed.


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No. 77427-1-1/5


Haggard also appealed this same issue with a separate Statement of Additional

Grounds for Review in State of Washington v. David Haggard, No. 77426-3 -1.

                                   DISCUSSION

I.     Offender Score

       Haggard contends that his dismissed 2010 conviction should not have been

included in his criminal history when calculating his offender score because

dismissal of a misdemeanor conviction is equivalent to vacation of that conviction.

As we found in State of Washington v. David Haggard, No. 77426-3-1, the language

of the misdemeanor dismissal and vacation statutes is clear and unambiguous and

Haggard's dismissed 2010 conviction interrupted the washout period for his prior

felonies. The trial court did not err in sentencing Haggard based on an offender

score of six.

II.    Motion to Exclude Prior Convictions

       In a Statement of Additional Grounds, Haggard contends that the trial court

erred in denying his motion to exclude his prior California convictions and in finding

that they could serve as predicate offenses for the charge of unlawful possession

of a firearm. We construe his assignments of error as challenges to the trial court's

conclusions of law that (1) his convictions for possession of methamphetamine

could serve as predicate offenses even though they had been reduced to

misdemeanors by ballot measure and that (2) the trial court was not the

appropriate venue for a challenge to the constitutional validity of his conviction for

taking a motor vehicle. Because we find that his prior convictions for possession




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No. 77427-1-1/6


of methamphetamine could serve as predicate convictions, we do not reach the

constitutional challenge to the taking of a motor vehicle conviction.

         A. Possession of Methamphetamine

         Haggard contends that the court erred in holding that his California

convictions for possession of methamphetamine could serve as predicate offenses

for unlawful possession of a firearm when the offenses had been reduced to

misdemeanors by ballot measure. A trial court's conclusion of law that a prior

conviction can serve as a predicate offense turns on statutory construction, which

we review de novo. State v. Azpitarte, 140 Wn.2d 138, 140-41, 995 P.2d 31

(2000).

         In 2014, California passed Proposition 47, which reclassified a number of

former     felony   offenses   as       misdemeanors,    including    possession    of

methamphetamine. Cal. Health & Safety Code § 11377(a); People v. Rivera, 233

Cal. App. 4th 1085, 1091-92, 183 Cal. Rptr. 3d 362 (2015). The legislation

included a procedure to amend felony convictions retroactively:

      (f) A person who has completed his or her sentence for a conviction,
      whether by trial or plea, of a felony or felonies who would have been
      guilty of a misdemeanor under this act had this act been in effect at
      the time of the offense, may file an application before the trial court
      that entered the judgment of conviction in his or her case to have the
      felony conviction or convictions designated as misdemeanors.
      (g) If the application satisfies the criteria in subdivision (f), the court
      shall designate the felony offense or offenses as a misdemeanor.


Cal. Penal Code § 1170.18. However, resentencing would not reinstate the

person's eligibility to own firearms:




                                          -6 _
No. 77427-1-1/7

      (k) A felony conviction that is recalled and resentenced under
      subdivision (b) or designated as a misdemeanor under subdivision
      (g) shall be considered a misdemeanor for all purposes, except that
      resentencing shall not permit that person to own, possess, or have
      in his or her custody or control a firearm or prevent his or her
      conviction under Chapter 2 (commencing with Section 29800) of
      Division 9 of Title 4 of Part 6.

Id.

       In Washington, a person is guilty of unlawful possession of a firearm in the

second degree if the person possesses a firearm after having been convicted "in

this state or elsewhere of any felony" not designated as a predicate offense for

unlawful possession in the first degree. RCW 9.41.040(2)(a)(i). Under the statute,

a person has been "convicted" at the time the court accepts a plea of guilty. RCW

9.41.040(3). "Conviction includes a dismissal entered after a period of probation,

suspension or deferral of sentence, and also includes equivalent dispositions by

courts in jurisdictions other than Washington state." Id. However, if the conviction

"has been the subject of a pardon, annulment, or other equivalent procedure based

on a finding of innocence" or rehabilitation of the person convicted, the person shall

not be precluded from possessing a firearm. Id. A "felony" is defined as "any felony

offense under the laws of this state or any federal or out-of-state offense

comparable to a felony offense under the laws of this state." RCW 9.41.010(8).

Possession of methamphetamine is a class C felony in Washington. RCW

69.50.4013; RCW 69.50.206(d)(2).

       Haggard argued below that the convictions no longer met the definition of

"any felony" under the unlawful possession of a firearm statute. In denying his

motion, the trial court concluded that Cal. Penal Code § 1170.18 "does not apply



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No. 77427-1-1/8


retroactively to the Defendant's felony convictions and is not retroactive." This is

not an accurate statement of the law. By its express terms, Cal. Penal Code §

1170.18 allows offenders who have completed their sentences to petition for their

felony convictions to be retroactively designated as misdemeanors. The court

cites Rivera, 233 Cal. App. 4th 1085, and People v. Park, 56 Cal. 4th 782, 299

P.3d 1263, 156 Cal. Rptr. 3d 307 (2013), to show that "California courts have

specifically found that [Cal. Penal Code §11170.18 does not apply retroactively."

Rivera found that the language in Cal. Penal Code § 117b.18(k) that the

redesignated offense "shall be considered a misdemeanor for all purposes" did not

apply retroactively and therefore the matter remained a "felony case" for the

purpose of appellate jurisdiction. Rivera, 233 Cal. App. 4th at 1100-01. Park,

which was decided before Cal. Penal Code § 1170.18 was enacted, concluded

that a "wobbler"—an offense that can be charged as a felony or misdemeanor—

that is reduced to a misdemeanor "is deemed a 'misdemeanor for all purposes,'

except when the Legislature has specifically directed otherwise." 56 Cal. 4th at

795. We do not read these cases to support the trial court's broad conclusion that

Cal. Penal Code § 1170.18 does not apply retroactively.

       Although we disagree with the reasoning for the trial court's conclusion, we

agree that the redesignated convictions may be used as predicate offenses.

Regardless of the fact that his California convictions were designated as

misdemeanors, the offenses are felonies for the purposes of RCW 9.41.010

because the necessary elements are comparable to felony offenses under the laws

of this state.


                                        8
No. 77427-1-1/9


       Haggard also argued below that the retroactive amendment of his offenses

from felonies to misdemeanors amounted to a pardon, annulment, or other

equivalent procedure based on a finding of innocence. Although the record does

not contain the order designating the possession of methamphetamine convictions

as misdemeanors, the language of the California statute does not suggest that the

amendment amounts to a finding of innocence.              Substituting misdemeanor

designations for felony designations has no effect on the underlying facts of the

convictions. Two convictions for possession of methamphetamine remain on

Haggard's record. Because possession of methamphetamine is a felony offense

in Washington, it is immaterial for the purposes of RCW 9.41.010 whether the

predicate California convictions were felonies or misdemeanors in that jurisdiction.

       B. Taking a Motor Vehicle

       Haggard also contends that the court erred in concluding that his challenge

to the constitutionality of his prior conviction for taking a motor vehicle in an effort

to exclude the conviction as a predicate offense was barred under RCW 10.73.090.

Because we conclude that the possession of methamphetamine convictions were

properly used as predicate offenses for his conviction of unlawful possession of a

firearm in the second degree, we do not reach this issue.




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No. 77427-1-1/10


      We affirm.




WE CONCUR:




6/ilvik,17.




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