Filed 9/19/18
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                              (Tehama)
                                                ----




THE PEOPLE,                                                          C082438

                  Plaintiff and Respondent,                (Super. Ct. No. NCR95353)

        v.

CYNTHIA LOUISE HAYES,

                  Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Tehama County, Matthew C.
McGlynn, Judge. Reversed in part and affirmed in part.

      Jin H. Kim, 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, Kathleen A. McKenna and Craig
S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part II of the Discussion.

                                                 1
        Following a jury trial, defendant Cynthia Louise Hayes was convicted of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 vandalism with damage
exceeding $400 (§ 594, subds. (a), (b)(1)), and misdemeanor battery (§ 242). Before the
jury rendered its verdict, defendant admitted five prior prison term allegations. (§ 667.5,
subd. (b).) The trial court struck two of the prison priors and sentenced defendant to a
seven-year eight-month state prison term.
        On appeal, defendant contends she was denied representation at a critical stage of
the proceedings, her prison priors should be struck because the felony underlying the
most recent prior was reduced to a misdemeanor after her sentencing hearing, and the
trial court abused its discretion in denying her motion to continue sentencing. We shall
vacate the sentence, remand for resentencing, and otherwise affirm.
                                     BACKGROUND
        On September 3, 2014, between 7:00 p.m. and 8:00 p.m., J.C. was driving to the
home of his mother, L.B., when he spotted, in front of a home’s garage, items that were
taken from his property about a week ago. As J.C. pulled in to talk to the home’s owner,
defendant came out of the house and yelled at him. When he realized he could not talk to
defendant, who was “yelling and crazy,” J.C. drove two miles up the road to his mother’s
house. The encounter with defendant lasted no more than five minutes.
        Shortly after J.C. arrived at his mother’s home, defendant pulled up in a pickup
truck and started honking the horn. J.C. went outside, accused defendant of stealing his
property, and told her to leave. Defendant responded by yelling at J.C. and punching him
in the face. L.B. came out of the house and told defendant to leave. Defendant kept
yelling, went to L.B.’s 2004 Mustang, and scratched the passenger-side door with her
keys. When L.B. pushed defendant away from the car, defendant punched her, giving




1   Undesignated statutory references are to the Penal Code.

                                             2
L.B. a black eye. L.B. and defendant engaged in a struggle until L.B.’s husband pulled
defendant off of L.B.
       J.C. and L.B. yelled at defendant to leave. Defendant got into her truck and drove
it straight at J.C. and L.B., coming within six to eight inches of L.B. before hitting a tree
and a metal satellite pole. Defendant backed up and again tried to hit L.B. and J.C. but
missed, striking L.B.’s car instead.
       Defendant pulled out toward the road and struck a fence. She did not leave until
J.C. took a shovel out of the back of her truck and smashed her windshield.
       L.B.’s car sustained $2,231.82 in damage.
                                       DISCUSSION
                                              I
       Defendant contends her convictions should be reversed because she was
completely denied legal representation at a critical stage.
                                              A
       On the first day of trial, the trial court held a hearing in chambers where it asked
defendant whether she wanted to admit the prison priors or have a trial on them. During
a discussion with the court on her rights with respect to the allegations, defendant said, “I
don’t understand. I am at a total loss at this. He didn’t even call any of my witnesses or
nothing for me.” The court, with defense counsel’s and the prosecutor’s agreement,
bifurcated the allegations. Defendant replied that she did not understand what bifurcation
meant and reiterated her complaint about defense counsel not calling any witnesses.
Defense counsel then requested an in camera discussion outside the prosecutor’s
presence, which the court granted.
       Defense counsel made the following statement at the in camera hearing:




                                              3
        “I was appointed to represent Ms. Hayes in I believe November of last year.[2] We
set this matter, plead not guilty, set this matter for jury trial on the 30th of November with
a no time waiver. During those occasions when I spoke with Ms. Hayes, she indicated to
me that her version of the facts of this case were that she was not present when this
assault took place, that she was not there and it was in conjunction with what she told the
police when she was questioned about this, that her car had been . . . stolen or taken and
that it wasn’t her -- and she doesn’t know anything about this.
        “Then at the trial readiness conference once the Court, the people confirmed that
they had their witnesses ready and they were ready to proceed for trial, that she indicated
that she wanted to tell me what really happened and she began to say that she was present
there was an assault that she was actually the victim of the assault and she gave me a list
of witnesses who would verify that.
        “I spoke to some of the witnesses that I could get a hold of and that was, I believe
your Honor was on the trial readiness conference of this matter was -- I am sorry, your
Honor.”
        After the court informed counsel that date was January 8, 2016, counsel continued:
        “There had been a no time waiver. I indicated to her that this was late in the
process and that we were going to trial on the 21st and basically she had given me less
than two weeks to prepare this for trial and that she was giving me a different version of
the facts. I don’t know what the truth is at this point and it places me in an ethical
dilemma about whether or not I am going to present or purge her testimony and the ethics
of my profession are I cannot do that.




2   This hearing was held on January 21, 2016.

                                              4
        “So I have tried to explain this to Ms. Hayes about her witnesses, about the new
version of what she is telling me and that it places me in a very prickly position as her
advocate.
        “There is -- in any event, your Honor, that is where I am with the case, at this
point. I can have her testimony in the narrative and I am -- I have indicated to her that I
have that her witnesses will not help her because I don’t believe that some of the people
she is alleging were there were actually there, because there is no indication in the
discovery anywhere that the people she is indicating that are witnesses for her were
actually at the incident involved.”
        After determining defense counsel had nothing more to add, the court called the
prosecutor back into chambers.
        On January 27, 2016, after the first witness testified, the trial court informed
defendant of her right to testify as follows:
        “All right. Ms. Hayes, you don’t have to make this decision right now. You have
a Constitutional right to testify in this case. You also have a Constitutional right not to
testify. You have a privilege against self-incrimination, no one can call you as a witness.
You have a right to testify over your attorney’s recommendation not to or objection to.
        “Your attorney has indicated that he has an ethical concern that he put on this
record that prohibit[s] him, based on what he has put on the record, from participating in
the examination of you in front of a jury. So if you do choose to testify, then basically
Mr. Nelson[3] will let me know that when the People conclude their case when it’s
appropriate for your decision to have been made, and you will be called to the witness
stand again, if you so choose. And I will just simply turn to you and say you may now
testify. He may not ask you questions.




3   Defense counsel.

                                                5
        “Mr. Neiman[4] can cross-examine you. If you choose to testify and he objects to
your testimony, you must stop talking until I can rule on the objection. You must honor
my instructions, if you choose to testify, because if you testify as to things over objection
continually, then I may take action. Keep in mind that if you choose to testify and it is
determined that you willfully lied on the witness stand, you could be charged with
perjury.
        “Again, I don’t know the underlying facts or circumstances, I just know what your
attorney has put on the record. So I just wanted to clarify all of that with you here on the
record so you can then at the conclusion of Mr. Neiman’s case, outside the presence of
the jury, you can let me know whether or not you wish to testify. I believe that is going
to happen fairly quickly because he has two witnesses, he has the alleged victim, her
name I can’t recall.”
        The prosecutor gave L.B.’s name, and the court told defendant that a body shop
estimator will testify as well, so defendant would have to make her decision at around
10:30 a.m. Defendant said she understood and exclaimed, “I just don’t understand why I
can’t have any other witnesses.”
        At the conclusion of the prosecution’s case, defense counsel stated defendant
would not be testifying.
        After the verdict but before sentencing, the trial court relieved Nelson as defense
counsel and appointed new counsel for defendant. New counsel subsequently filed a new
trial motion alleging several grounds including ineffective assistance of counsel.
Defendant filed a declaration in support of the motion. She stated in her declaration that
when Nelson conveyed the prosecution’s offer, she rejected it, telling Nelson, “. . . I
wasn’t taking time for something I didn’t do and that I was not there.” On December 21,




4   The prosecutor.

                                              6
2015, when she began to talk about the case with Nelson, “he told me I had lied to him
and he was not going to put me on the stand.” Defendant gave Nelson a list of witnesses
before the January 8, 2016, trial readiness conference, but learned that “[o]f the five
witnesses on my list Mr. Nelson spoke briefly with one of them. Neither Mr. Nelson or a
defense investigator spoke with the others.” On the first day of trial, January 21, 2016,
defendant told Nelson she wanted to testify. According to the declaration, Nelson “told
me if I did testify I would be committing perjury and he could not allow that and if he did
he could lose his license. Additionally, three of the people from the witness list were
present and Mr. Nelson said he would not have them testify becausee [sic] they were not
credible.”
       The trial court denied the new trial motion.
                                               B
       A defendant has a constitutional right to testify in his or her own defense, but does
not have a right to testify falsely. (Nix v. Whiteside (1986) 475 U.S. 157, 173 [89
L.Ed.2d 123, 138].) A defense attorney has an obligation to act as a conscientious and
diligent advocate, but “[i]t is utterly reprehensible for an attorney at law to actively
procure or knowingly countenance the commission of perjury. [Citation.]” (In re Jones
(1971) 5 Cal.3d 390, 400.) A defendant’s right to testify does not trump an attorney’s
ethical responsibilities. (Whiteside, at p. 173 [89 L.Ed.2d at p. 138].)
       “ ‘[A]n attorney owes no duty to offer on his client’s behalf testimony which is
untrue.’ [Citations.] Stated slightly differently, an attorney, including a criminal defense
attorney, has a ‘special duty . . . to prevent and disclose frauds upon the court . . . .’
[Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1217 (Riel).) “A ‘ “lawyer should
not conclude that testimony is or will be false unless there is a firm factual basis for doing
so. Such a basis exists when facts known to the lawyer or the client’s own statements
indicate to the lawyer that the testimony or other evidence is false.” ’ ” (Ibid.)



                                                7
       The defendant in Riel entered a plea of guilty and later moved for a new trial on
the ground of newly discovered evidence, that is, information from a potential witness
that would be favorable to the defense. (Riel, supra, 22 Cal.4th at p. 1215.) The defense
had not obtained the witness’s declaration by the time of the hearing on the new trial
motion, and both defense attorneys stated they had a conflict with respect to the witness
that could not be discussed in open court or in the presence of the prosecutor. (Ibid.) At
an in camera hearing absent the prosecutor, a defense attorney explained that the witness
had made various statements about the case but stated that he would give a very favorable
statement, which would be a lie. The defense attorneys were not interested in producing
perjured testimony and the witness then indicated that the favorable statement might not
be a lie. (Ibid.) The defense attorneys explained to the court that they were not willing to
produce potentially perjured testimony but did not reveal the witness’s specific
statements. (Id. at pp. 1215-1216.) In open court, the court denied the new trial motion.
(Id. at p. 1216.) On appeal, the defendant claimed counsel rendered ineffective assistance
in failing to present the evidence. (Ibid.) Noting that the defense attorneys were
“intentionally vague,” the Supreme Court rejected the claim, “hypothesiz[ing] on this
record that [the witness] may have said something that fully justified their actions . . . .”
(Id. at p. 1217.) “Although attorneys may not present evidence they know to be false or
assist in perpetrating known frauds on the court, they may ethically present evidence that
they suspect, but do not personally know, is false. Criminal defense attorneys sometimes
have to present evidence that is incredible and that, not being naive, they might
personally disbelieve. Presenting incredible evidence may raise difficult tactical
decisions--if counsel finds evidence incredible, the fact finder may also--but, as long as
counsel has no specific undisclosed factual knowledge of its falsity, it does not raise an
ethical problem.” (Ibid.) Riel held that there was “no basis to find that counsel acted
other than as diligent advocates consistent with ethical constraints.” (Id. at p. 1218.)



                                               8
       In People v. Bolton (2008) 166 Cal.App.4th 343 (Bolton), four days before trial,
Bolton’s third appointed counsel, Cline, informed the trial court he had a conflict of
interest with his client. (Id. at pp. 350, 351.) Cline informed the court Bolton started
making threatening calls to his office after a blowup in the courtroom. (Id. at p. 351.)
Cline also told the court Bolton expressed his desire to represent himself but changed his
mind a few days later. (Ibid.) Bolton asked Cline to call him as a witness so he could
“testify that one of the victims had a razor, even though Bolton had never mentioned this
before, and none of the witnesses could corroborate this story,” causing Cline to be
concerned defendant would perjure himself. (Ibid.) Cline also believed Bolton was
making it difficult for Cline to locate Bolton’s girlfriend, so she would be unavailable to
provide testimony that would contradict his proposed testimony. (Ibid.)
       The trial court relieved Cline and forced Bolton to make a choice between his right
to counsel and his right to a speedy trial. (Bolton, supra, 166 Cal.App.4th at p. 356.)
Bolton “chose” to represent himself rather than agree to a continuance, and was
subsequently convicted by the jury. (Id. at pp. 349-350.) The appellate court reversed
his convictions, holding that under these circumstances, Bolton’s waiver of his right to
the assistance of counsel was not voluntary. (Id. at p. 361.) In support of its ruling, the
Bolton court found: “Despite Cline’s assertions, it was not at all clear that Bolton was in
fact going to perjure himself. While Cline may have doubted Bolton’s claim that one of
the victims had a razor blade, Cline did not know that this was false. In addition, Cline
had only a hunch that Bolton was ‘hiding’ his girlfriend from Cline. Further, Bolton was
not given an opportunity to respond to Cline’s claims before the court determined that a
conflict existed and agreed to relieve Cline.” (Id. at p. 357.)
       Relying primarily on Riel and Bolton, defendant asserts Nelson’s claim of an
ethical dilemma regarding her potential testimony was baseless because he had “no firm
basis to believe” she would commit perjury if she testified. She finds this deprived her of



                                              9
her right to assistance of counsel during the in camera proceeding. Finding this to be a
critical stage of the proceedings, defendant concludes reversal is mandatory.
       In People v. Johnson (1998) 62 Cal.App.4th 608 (Johnson), the appellate court
discussed the “problem [that] arises . . . where the defendant asserts his right to testify
and his attorney knows or suspects the defendant will give perjured testimony.” (Id. at
pp. 618-619, fn. omitted.) The court identified various solutions to the problem (id. at
pp. 620-624), including the “narrative approach,” under which “the attorney calls the
defendant to the witness stand but does not engage in the usual question and answer
exchange. Instead, the attorney permits the defendant to testify in a free narrative
manner. In closing arguments, the attorney does not rely on any of the defendant’s false
testimony.” (Id. at p. 624.) The court ultimately determined “the narrative approach
represents the best accommodation of the competing interests of the defendant’s right to
testify and the attorney’s obligation not to participate in the presentation of perjured
testimony since it allows the defendant to tell the jury, in his own words, his version of
what occurred, a right which has been described as fundamental, and allows the attorney
to play a passive role.” (Id. at p. 629.) The California Supreme Court has found the
narrative approach appropriate so long as defense counsel does not inform the fact finder
that he or she disbelieves defendant. (People v. Guzman (1988) 45 Cal.3d 915, 946,
overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn.
13.)
       Defendant asserts the Johnson court’s reference to defense counsel knowing or
suspecting defendant will give perjured testimony is either dicta or no longer good law
after Riel.
       In Johnson, “[d]efense counsel told the court he had ‘an ethical conflict’ with
Johnson about Johnson’s desire to take the stand and testify. Defense counsel explained,
‘I cannot disclose to the court privileged communications relating to that, but I’m in a
position where I am not willing to call Mr. Johnson as a witness despite his desire to

                                              10
testify.’ In response to the court’s question, Johnson indicated defense counsel had
accurately described the situation and defense counsel indicated he would ‘[n]ot
voluntarily’ call Johnson as a witness.” (Johnson, supra, 62 Cal.App.4th at p. 613.)
After the trial court, misunderstanding the situation, told the defendant that his counsel
had decided it was not in his interests to testify, counsel clarified that this was not a
matter of tactics but “an ethical conflict,” and counsel “would be ethically barred from
calling him as a witness under the law as I have come to know it and very specifically
researched it regarding this particular issue.” (Ibid.) The trial court ruled that the
defendant would not be allowed to testify. (Id. at pp. 613-614.) The Court of Appeal
found the trial court erred in precluding the defendant from testifying, but the error was
harmless beyond a reasonable doubt. (Id. at p. 636.)
       The Johnson court’s reference to counsel knowing or suspecting the defendant
giving perjured testimony was not dicta. The defense counsel in Johnson informed the
trial court that the defendant testifying would create an ethical conflict with his client, but
did not specify how the defendant would perjure himself, counsel’s confidence in this
assertion, or what evidence he had to justify it. If the phrase “knows or suspects” is
limited to knows, then the statement provided by counsel would not support the narrative
testimony approach suggested by the Johnson court. Johnson supports the use of
narrative testimony when defense counsel knows or suspects the defendant will give
perjured testimony.
       Riel does not, as defendant suggests, limit Johnson. Riel did not address
presenting narrative testimony but rather not presenting the allegedly perjured testimony
at all. The Supreme Court’s approach in Riel, where counsel must present evidence
unless it is known to be false, parallels Johnson, which sanctioned the use of narrative
testimony where counsel knows or suspects defendant will commit perjury, but precludes
invoking the conflict to prevent the defendant from testifying.



                                              11
       Bolton reinforces Johnson’s continued validity. Discussing what counsel should
do when the defendant is suspected of intending to commit perjury, the Bolton court
stated: “In [Johnson], this court considered the options available to a criminal defense
attorney when the defendant asserts his or her right to testify, and the attorney knows or
suspects that the defendant intends to give perjured testimony. [Citation.] After
reviewing various options, including withdrawing from representation, the Johnson court
concluded that calling the defendant to the witness stand and permitting the defendant to
‘testify in a free narrative manner’ is the solution that ‘best accommodates the competing
interests of the defendant’s constitutional right to testify and the attorney’s ethical
obligations.’ [Citation.] [¶] We reaffirm the conclusion of the Johnson court that where
an attorney knows or suspects that his client intends to give false testimony, the ‘narrative
approach’ best accommodates the interests of both the defendant and the attorney, who is
obligated ‘not to participate in the presentation of perjured testimony.’ [Citation.]”
(Bolton, supra, 166 Cal.App.4th at pp. 357-358, citing Johnson, supra, 62 Cal.App.4th at
pp. 618-619, 622, 624.)
       Trial counsel did not know defendant was going to commit perjury, but suspected
it and gave reasons for that suspicion. Those reasons, defendant’s sudden and dramatic
change in her narrative of events and counsel’s difficulty in finding the supporting
witnesses she claimed to have, support that suspicion and the trial court’s deference to it.
Allowing defendant to testify in narrative form and informing her of that decision did not
deprive her of the right to counsel.
                                              II
                                              A
       Defendant was charged with five prison priors: (1) a November 10, 1993,
conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851) in Colusa
County; (2) a May 25, 1995, conviction for possession of a controlled substance (Health
& Saf. Code, § 11377, subd. (a)) in Yolo County; (3) a January 29, 1997, conviction for

                                              12
receiving stolen property (§ 496, subd. (a)) in Sacramento County; (4) a forgery (§ 470,
subd. (a)) conviction on June 15, 2004, in Tehama County; and (5) a burglary conviction
(§ 459) on October 15, 2010, in Tehama County. She admitted the five prison priors on
January 26, 2016.
       On April 14, 2016, the Yolo County Superior Court granted defendant’s section
1170.18 petition to redesignate the 1995 possession of a controlled substance conviction
to a misdemeanor.
       On June 6, 2016, following the denial of defendant’s new trial motion,5 defense
counsel informed the trial court of “a new issue that just has arisen and it relates only to
the sentencing.” Counsel informed the court of the recent decision in People v. Abdallah
(2016) 246 Cal.App.4th 736 (Abdallah) holding that a felony reduced to a misdemeanor
under Proposition 47 before sentencing cannot be used to support a prison prior. Unsure
that the section 1170.18 petition had been granted, counsel sought a continuance, which
the trial court granted over the prosecutor’s objection. While defendant asked for a six-
week continuance, the trial court granted a continuance to June 29, 2016, and “if that
turns out not to be the case, you can file something ahead of time.”
       Defendant filed a motion for an additional continuance on June 24, 2016. The
motion informed the court that the 1995 Yolo County conviction was reduced to a
misdemeanor on April 14, 2016. Among the grounds for continuance was a pending
section 1170.18 petition in Tehama County to redesignate the 2010 burglary conviction
to a misdemeanor, and at a June 21, 2016, hearing on the section 1170.18 petition, the
matter was continued to July 26, 2016, because it involved an issue pending before the




5  Defendant’s appointed trial counsel was relieved and new counsel was appointed on
March 2, 2016. New counsel filed a motion for new trial on May 10, 2016, which the
trial court denied on June 6, 2016.

                                             13
California Supreme Court. The motion asked for a continuance to resolve whether the
Tehama and Sacramento convictions were subject to section 1170.18.
       The trial court denied the motion and sentenced defendant on June 29, 2016. It
struck the prison prior allegations based on the 1995 and 2010 convictions, and imposed
a seven-year eight-month state prison term.
       On August 9, 2016, the Tehama County Superior Court granted defendant’s
section 1170.18 petition on the 2010 conviction.
                                              B
       Defendant contends the order granting her section 1170.18 petition on the 2010
Tehama County conviction prevents it from satisfying the five-year “washout” provision
of section 667.5, subdivision (b), thereby invalidating all three remaining prison priors.6
She argues this follows as a matter of equal protection and statutory interpretation as to
section 1170.18. She additionally contends the trial court abused its discretion in denying
her continuance motion.
       “On November 4, 2014, the voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) Proposition 47 created a resentencing provision, codified
at section 1170.18, which provides that a person currently serving a sentence for certain
designated felonies may petition for recall of the sentence to reduce felonies to
misdemeanors. A felony reduced to a misdemeanor under section 1170.18 “shall be
considered a misdemeanor for all purposes, except that resentencing shall not permit that




6 “According to the ‘washout’ rule, if a defendant is free from both prison custody and
the commission of a new felony for any five-year period following discharge from
custody or release on parole, the [prior prison term] enhancement does not apply.”
(People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.)

                                              14
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.” (§ 1170.18, subd. (k).)
       If a felony is reduced to a misdemeanor before sentencing, then it cannot be used
either as the felony underlying a prison prior or to prevent a prison prior from being
washed out. (People v. Warren (2018) 24 Cal.App.5th 899, 903-904; People v. Call
(2017) 9 Cal.App.5th 856, 858; People v. Kindall (2016) 6 Cal.App.5th 1199, 1201;
Abdallah, supra, 246 Cal.App.4th at p. 740.) In a case decided after briefing in this case,
the California Supreme Court held, “Proposition 47’s mandate that the resentenced or
redesignated offense ‘be considered a misdemeanor for all purposes’ (§ 1170.18, subd.
(k)) permits defendants to challenge felony-based section 667.5 and 12022.1
enhancements when the underlying felonies have been subsequently resentenced or
redesignated as misdemeanors.” (People v. Buycks (July 30, 2018, S231765) __ Cal.5th
__, __ [2018 Cal. LEXIS 5486, *4] (Buycks).) As relevant here, a defendant can
challenge the prison prior under “the retroactivity principle of In re Estrada (1965) 63
Cal.2d 740” when the conviction is not yet final on appeal. (Id. at p. __ [2018 Cal.
LEXIS 5486, *5].) Although the trial court did not have the benefit of Buycks when it
ruled on the second continuance motion, Buycks nonetheless applies to this case, which is
not final.7
       Section 1050, subdivision (e) states: “Continuances shall be granted only upon a
showing of good cause. Neither the convenience of the parties nor a stipulation of the
parties is in and of itself good cause.” The court considers the benefit the moving party



7 While a defendant whose conviction is subject to Proposition 47 is not entitled to
automatic resentencing on appeal (People v. DeHoyos (2018) 4 Cal.5th 594, 597), Buycks
nonetheless supports a remand for resentencing where, as here, defendant moved for a
continuance to allow for a ruling on the section 1170.18 petition that implicated the
validity of his prison priors.

                                            15
anticipates; the likelihood that benefit will result; the burden on witnesses, jurors, and the
court; and whether granting the continuance will result in substantial justice. (People v.
Doolin (2009) 45 Cal.4th 390, 450.) On appeal, we review the denial of a motion for
continuance for abuse of discretion. (People v. D’Arcy (2010) 48 Cal.4th 257, 287.)
       “ ‘ “ ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a
legal discretion, which is subject to the limitations of legal principles governing the
subject of its action, and to reversal on appeal where no reasonable basis for the action is
shown. [Citation.]’ ” ’ ” (People v. Jacobs (2007) 156 Cal.App.4th 728, 738.) There is
no mechanical test for determining whether the denial of a continuance is an abuse of
discretion; the answer “ ‘ “must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge . . . .” ’ ” (People v. Panah (2005)
35 Cal.4th 395, 426.)
       Continuing sentencing until the Tehama County Superior Court ruled on the
pending section 1170.18 petition was critical to determining whether defendant could be
sentenced on the prison priors. If the 2010 prior that was the subject of the section
1170.18 petition was redesignated a misdemeanor, then, under Buycks and Abdallah, it
would be treated as a misdemeanor “ ‘for all purposes’ ” and therefore would not be a
felony under the five-year washout provision. (Abdallah, supra, 246 Cal.App.4th at
p. 746.) This would cause defendant’s remaining prison priors to wash out as it would
have been more than five years since her last felony conviction. By denying the
continuance motion, the trial court guaranteed defendant would be sentenced on the
prison priors (absent the exercise of the court’s discretion to strike a prior) whether or not
the 2010 prior was redesignated a misdemeanor in the future.
       In denying the continuance, the trial court noted that defendant had a year and a
half since the passage of Proposition 47 to reduce the priors to misdemeanors but did not
do so. It also pointed out that substitute defense counsel came into the case four months
ago. Finally, it noted a case titled, “People v. Diaz,” which held that a prior felony

                                              16
conviction remains a felony until designated a misdemeanor under section 1170.18 and
where the Court of Appeal declined to stay the appeal until the defendant litigated the
section 1170.18 petition in the trial court.
       These reasons do not support the court’s decision to deny the continuance.
Defendant is not an attorney, and, before she was charged and provided with appointed
counsel, could not be expected to file a section 1170.18 petition on her own. While she
had counsel after she was charged in October 2015, until Abdallah was decided on
April 19, 2016 (see Abdallah, supra, 246 Cal.App.4th at p. 736), there was no reason for
trial counsel to file a section 1170.18 petition as to her priors. Substitute counsel acted
diligently obtaining section 1170.18 relief on the Yolo County prior shortly before
Abdallah was decided, and getting a section 1170.18 hearing on the 2010 Tehama County
prior a little more than two months after Abdallah. Defendant was diligent in attempting
to obtain section 1170.18 relief on her priors.
       The trial court’s reference to the Diaz decision adds nothing to support the denial.
The only published opinion from a California court with that name addressing the subject
matter discussed by the trial court is People v. Diaz (2015) 238 Cal.App.4th 1323, in
which the Court of Appeal held that a defendant convicted and sentenced before
Proposition 47’s enactment can seek to reduce to a misdemeanor the felony underlying a
prison prior only through a section 1170.18 petition. (Diaz, at p. 1328.) The Diaz court
also declined to stay the appeal while the defendant filed a section 1170.18 petition.
(Diaz, at p. 1338.) Diaz applies only in the context of a conviction and sentence before
Proposition 47 was passed. It has no bearing on defendant’s case where the trial,
conviction, and sentence took place after Proposition 47 was passed. Staying an appeal
while the lower court rules on a collateral motion raises a significant issue of appellate
jurisdiction that is not present when, as here, the trial court is asked to stay sentence while
another court in the same county rules on a matter potentially critical to defendant’s
sentence.

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       Granting the continuance would not significantly burden the court; the probation
report was prepared months prior and the sentencing hearing was otherwise routine, with
no witnesses and consuming little time. Nor would the prosecution be improperly
burdened by the continuance, as the prosecutor assumed the continuance would be
granted and submitted the matter without argument other than stating granting section
1170.18 relief would not necessarily wash out earlier priors.
       Defendant would have obtained a more favorable result if the continuance was
granted. In light of the minimal burden to the other parties, lack of adequate reasons for
the denial, and the Supreme Court’s decision in Buycks, we conclude the denial of the
continuance motion was an abuse of discretion. We shall therefore reverse the sentence
and remand for a new sentencing hearing.
                                       DISPOSITION
       The sentence is reversed and the matter remanded for a new sentencing hearing.
In all other respects, the conviction is affirmed.



                                                       /s/
                                                     Blease, Acting P. J.


We concur:



  /s/
Butz, J.



 /s/
Mauro, J.




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