Filed 12/21/18-Opinion following order vacating prior opinion

                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                             DIVISION FIVE


THE PEOPLE,
        Plaintiff and Respondent,
                                                                A147588
v.
ANTHONY LEE BALDWIN,                                            (Del Norte County
                                                                Super. Ct. No. CRF12-9177)
        Defendant and Appellant.

        Anthony Lee Baldwin was convicted in 2012 of robbery (Pen. Code, § 211),1
felony petty theft with theft priors (§§ 484, 666), and misdemeanor brandishing a knife
(§ 417). He was sentenced to prison for a term of three years for the robbery plus six
consecutive one-year enhancements for prior prison terms (§ 667.5, subd. (b); hereafter
section 667.5(b)), and sentence was stayed on the other two convictions (§ 654). In 2015,
Baldwin successfully petitioned under the Safe Neighborhoods and Schools Act
(Proposition 47) to reduce three of the prior section 667.5 felony convictions to
misdemeanors. He then filed a Proposition 47 petition in the instant case to resentence
the felony theft as a misdemeanor and dismiss four of the section 667.5(b) enhancements
to his robbery sentence as no longer valid.
        The trial court granted Baldwin’s petition in part. Sentence was recalled on the
felony theft, the offense was reduced to a misdemeanor, and sentence on that count was
imposed accordingly. The court, however, declined to resentence Baldwin on the
robbery, leaving all section 667.5(b) enhancements in place. On appeal, Baldwin
contended the trial court should have recalled his entire sentence and considered the

        1
            Undesignated statutory references are to the Penal Code.


                                                        1
validity of the sentencing enhancements or exercised its discretion to strike one or more
of the enhancements pursuant to section 1385. In an unpublished opinion, we held the
court was not required to structure a new sentence under these circumstances, and the
section 667.5(b) enhancements were not subject to retroactive reduction under
Proposition 47. We affirmed the judgment on December 23, 2016.
       In March 2017, our Supreme Court granted Baldwin’s petition for review and held
the matter pending disposition in another case. In October 2018, the Supreme Court
transferred the matter back to this court with directions to vacate our decision and
“reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857” (Buycks). In
compliance with that directive, we have vacated our December 23, 2016 opinion by
separate order and now conclude remand is required for resentencing.
                                   I.     BACKGROUND
       The underlying information in this case charged Baldwin with second degree
robbery (§ 211), petty theft with three prior theft-related convictions (§§ 484, 666), and
misdemeanor brandishing a knife (§ 417). The information also alleged, under
section 667.5(b), that in six separate instances Baldwin had been convicted of a felony,
served a prison term for each felony, and in each instance had not remained free of
subsequent prison custody or felony conviction for a period of five years. Four of the
section 667.5(b) enhancements are relevant here:2 a June 1995 conviction (Monterey
County) for assault with a deadly weapon or force likely to produce great bodily injury
(former § 245, subd. (a)(1)); November 1998 and September 2000 convictions (Santa
Cruz and Monterey Counties, respectively) for possession of a controlled substance
(Health & Saf. Code, former § 11377); and a November 2003 conviction (Santa Cruz
County) for making or passing a fictitious check (§ 476).
       In June 2012, Baldwin was convicted by jury trial on all three counts. Baldwin
admitted all six section 667.5(b) enhancements. The trial court sentenced him to a term

       2
        The other two section 667.5(b) enhancements were based on convictions for
intimidating a victim or witness who assisted law enforcement (§ 140) and taking a
vehicle without the owner’s consent (Veh. Code, § 10851).


                                             2
of nine years in state prison—a three-year middle term for the robbery, with six one-year
consecutive sentence enhancements.3 This court affirmed the judgment. (People v.
Baldwin (Nov. 19, 2013, A136164) [nonpub. opn.].)4
       In 2014, California voters passed Proposition 47, which was intended to “ensure
that prison spending is focused on violent and serious offenses, to maximize alternatives
for nonserious, nonviolent crime, and to invest the savings generated from this act into
prevention and support programs in K–12 schools, victim services, and mental health and
drug treatment.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 2, p. 70.) To that end, Proposition 47 reduced most possessory drug offenses and thefts
of property valued at less than $950 to straight misdemeanors and created a process for
persons currently serving felony sentences for those offenses to petition for resentencing
(§ 1170.18).
       In July 2015, Baldwin sought reduction of his felony petty theft conviction to a
misdemeanor and argued that reduction of his 1998, 2000, and 2003 convictions to
misdemeanors precluded their use as §667.5(b) enhancements in his current case.
Baldwin attached to his pro se petition copies of Santa Cruz County Superior Court
orders granting his section 1170.18 petitions related to his 1998 and 2003 convictions,
and a copy of his 1170.18 petition in Monterey County regarding his 2000 conviction.5
       The court appointed counsel to represent Baldwin on the section 1170.18
resentencing petition. Baldwin submitted a memorandum of points and authorities and
written argument for resentencing, and the People filed written opposition. Hearings
were held in October and November 2015. On February 2, 2016, the court issued its
“Ruling Denying Request Under Proposition 47 to Resentence Without Enhancements.”

       3
         Pursuant to section 654, the court imposed and suspended a three-year sentence
for the felony petty theft conviction and a one-year sentence for the misdemeanor
brandishing conviction.
       4
           A related habeas corpus petition was summarily denied on the same date.
       5
         While not included in this record, a copy of a Monterey County Superior Court
order granting Baldwin’s petition was later filed with the trial court and stipulated by the
parties to be a valid order.


                                              3
The court denied resentencing on the base robbery count, finding that the “the judgment
is final and the enhancements were correctly imposed at the time of sentencing.” On
February 11, 2016, the court granted Baldwin’s resentencing petition as to the petty theft
conviction. Baldwin filed a timely notice of appeal.
                                   II.    DISCUSSION
       Baldwin contends he was entitled to a plenary resentencing hearing on all counts
and enhancements, and the trial court was required to determine the validity of the
section 667.5(b) enhancements as of the time of resentencing. He is correct.
A.     Section 667.5(b) Enhancements
       1.     1998, 2000, and 2003 convictions
       Baldwin’s original sentence included six consecutive one-year enhancements
imposed for his prior felony prison commitments under section 667.5(b). “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.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) When found to be true,
imposition of the one-year consecutive sentence enhancement is “mandatory unless
stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
       In Buycks, the Supreme Court, interpreting the “misdemeanor for all purposes”
language of section 1170.18, subdivision (k),6 as added by Proposition 47, held that “a
defendant who successfully petitions for resentencing on a current Proposition 47 eligible
conviction may, at the time of resentencing, challenge a felony-based enhancement
contained in the same judgment because the prior felony conviction on which it was

       6
         Section 1170.18, subdivision (k) provides that “[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 her or her custody or
control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 or Title 4 of Part 6.”


                                             4
based has since been reduced to a misdemeanor.” (Buycks, supra, 5 Cal.5th at p. 879.)
Addressing section 667.5(b) priors, the court found “the resentencing of a prior
underlying felony conviction to a misdemeanor conviction negates an element required to
support a section 667.5 one-year enhancement. A successful Proposition 47 petition or
application can reach back and reduce a defendant’s previous felony conviction to a
misdemeanor conviction because the defendant ‘would have been guilty of a
misdemeanor under’ the measure had it ‘been in effect at the time of the offense.’
(§ 1170.18, subds. (a), (f).) Therefore, if the ‘felony conviction that is recalled and
resentenced . . . or designated as a misdemeanor’ conviction becomes ‘a misdemeanor for
all purposes,’ then it can no longer be said that the defendant ‘was previously convicted
of a felony’ [citations], which is a necessary element for imposing the section [667.5(b)]
enhancement. Instead, ‘for all purposes,’ it can only be said that the defendant was
previously convicted of a misdemeanor. [¶] Consequently, section 1170.18,
subdivision (k) can negate a previously imposed section [667.5(b)], enhancement when
the underlying felony attached to that enhancement has been reduced to a misdemeanor
under the measure.” (Buycks, at pp. 889–890, fn. omitted.) In Baldwin’s case, his 1998,
2000, and 2003 convictions are thus no longer eligible for use as §667.5(b)
enhancements.
       2.     1995 felony conviction
       Baldwin’s June 1995 conviction, for assault with a deadly weapon or force likely
to produce great bodily injury (former § 245, subd. (a)(1)), remains a felony. Baldwin
argues that if enhancement for the subsequent 1998, 2000, and 2003 felonies convictions
were stricken, his 1995 felony conviction no longer meets section 667.5(b) enhancement
requirements because he would be deemed to have remained free of prison custody and
felony conviction for five years thereafter.7 He is factually incorrect. As the Attorney
General points out, the plain language of section 667.5(b) states the five-year “washout”

       7
        No additional term may be imposed under section 667.5(b) when the defendant
“remained free of both the commission of an offense which results in a felony conviction,
and prison custody” for a period of five years.


                                              5
rule applies only where the defendant “remained free of both the commission of an
offense which results in a felony conviction, and prison custody.” (Italics added.)
Baldwin did not.
       Section 667.5(b), by its express terms, requires that a defendant be 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. “Both prongs of the rule, lack of prison time
and no commission of a crime leading to a felony conviction for a five-year period, are
needed for the ‘washout’ rule to apply. This means that for the prosecution to prevent
application of the ‘washout’ rule, it must show a defendant either served time in prison or
committed a crime leading to a felony conviction within the pertinent five- year period.
[Citations.] This construction furthers the legislative intent behind enactment of
section [667.5(b)] of ‘increasing the punishment incurred by repeat offenders and thereby
deterring recidivism.’ ” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.)
       Our colleagues in the Fifth District recently acknowledged that the literal terms of
the washout provision—requiring five years free of both felony offenses and
incarceration in prison—are not satisfied if the defendant served the prior prison terms,
even though the underlying offenses can no longer be treated as felonies. (People v.
Warren (2018) 24 Cal.App.5th 899, 915 (Warren).) The court, however, concluded a
literal construction of the statute is inconsistent with the legislative intent expressed in
Proposition 47. (Warren, at p. 915.) The Warren court “infer[ed] that the voters
intended successful Proposition 47 petitioners to be relieved of the effects of their former
felony convictions, including the effects of the sentences imposed for those convictions.
The voters’ legislative judgment was that, for the offenses identified in a successful
Proposition 47 petition, neither felony status nor felony punishment is appropriate.”
(Warren, at p. 915.) The Attorney General argues that Warren, and the Fifth District’s
subsequent decision in People v. Kelly (2018) 28 Cal.App.5th 886 (Kelly) reaching the
same conclusion, were wrongly decided. While we do not fully adopt the rationale of
Warren and Kelly, we ultimately accept their conclusion.



                                               6
       Warren seeks to harmonize section 667.5(b) with the ameliorative focus of
Proposition 47. (Warren, supra, 24 Cal.App.5th at p. 908.) We are not certain they can
be reconciled. The Warren court reads section 667.5(b) to permit sentence enhancement
“only for a prior offense that (1) is a felony, and (2) was committed under circumstances
and in a manner that warranted a prison term. Since felony status is one of the
requirements, logic bars a trial court from imposing an enhancement pursuant to this
provision based on a prior offense that the court ‘shall . . . consider[] a misdemeanor for
all purposes.’ (§ 1170.18, subd. (k), italics added.)” (Warren, at p. 911.) We think
Warren, in seeking to harmonize Propositions 8 and 47, overlooks what our Supreme
Court has found to be the legislative purpose of section 667.5(b)—a purpose at odds with
the focus of Proposition 47.
       Warren relies on People v. Prather (1990) 50 Cal.3d 428 (Prather) and People v.
Jones (1993) 5 Cal.4th 1142 (Jones) for the proposition “that prior prison term
enhancements are aimed primarily at the prior felony and only secondarily at the prior
prison term (as an indication of the severity of the felony),” and consequently, “the prison
term required for application of section [667.5(b)] cannot serve as an independent basis
for an enhanced sentence.” (Warren, supra, 24 Cal.App.5th at p. 911.) But Prather and
Jones addressed very different questions. In Prather, the question was whether article I,
section 28, subdivision (f) of the California Constitution, adopted when the voters
approved Proposition 8, abrogated a statutory prohibition on using sentence
enhancements to create a total sentence exceeding double the base term. (Prather, at
pp. 430–431.) Jones interpreted section 667 (enacted as part of Proposition 8), rejecting
an interpretation that would have permitted cumulative imposition of enhancements
under both section 667 (five-year enhancement for prior serious felony) and
section 667.5(b) for the same prior offense. (Jones, at pp. 1146, 1152–1153.)
       In focusing on presumed voter intent in enactment of Proposition 47, the Warren
court appears to ignore what the Supreme Court found in both Prather and Jones to be
the voter intent in enactment of Proposition 8. (See Jones, supra, 5 Cal.4th at p. 1147
[electorate’s clear intent in simultaneously enacting Cal. Const. art I, § 28, subd. (f), and


                                              7
section 667, “was to increase sentences for recidivist offenders”—“[t]he more obdurate
the offender, the greater the sentence to be imposed”]; Prather, supra, 50 Cal.3d at p. 435
[changes enacted under Prop. 8 were intended to achieve “increased punishment and
effective deterrence . . . by increasing the total period of imprisonment for recidivist
offenders”].)
       Warren relies upon People v. Valencia (2017) 3 Cal.5th 347 (Valencia) for the
principle “that legislative intent is not to be thwarted by a literal interpretation of
statutory words conflicting with it.” (Warren, supra, 24 Cal.App.5th at p. 917.) We do
not read Valencia so broadly. Valencia held the definition of “unreasonable risk of
danger to public safety” employed in Proposition 47 (enacting § 1170.18, subd. (c)) did
not amend the similarly worded resentencing criteria for eligible third-strike offenders
(§ 1170.126, subd. (g)(3)) under previously enacted Proposition 36. (Valencia, at
pp. 356, 373–375.) Valencia discussed at great length the applicable rules of statutory
interpretation, but ultimately concluded a contrary interpretation would reach a result
“not mentioned by the Attorney General or Legislative Analyst [in the ballot materials],
and contrary to the stated purposes and assurances described in the measure’s own
preamble.” (Id. at p. 374.) Warren points to nothing in the ballot materials for
Proposition 47 that addresses its impact on recidivist offenders—the focus of
section 667.5(b). “ ‘We cannot presume . . . the voters intended the initiative to effect a
change in law that was not expressed or strongly implied in either the text of the initiative
or the analyses and arguments in the official ballot pamphlet.’ ” (Valencia, at p. 364.)
       Nevertheless, our Supreme Court has interpreted the language “misdemeanor for
all purposes” of section 1170.18, subdivision (k), broadly. The high court has construed
Proposition 47 to mitigate criminal punishment and that the “ameliorative changes are
intended to ‘apply to every case to which it constitutionally could apply’ . . . .” (Buycks,
supra, 5 Cal.5th at p. 881.) While not directly addressing the issue presented here, the
court, in a footnote, disapproved People v. Acosta (2016) 247 Cal.App.4th 1072, “to the
extent that it held that the ‘misdemeanor for all purposes’ language of section 1170.18,
subdivision (k) alters only the status of felony convictions, not the fact that the defendant


                                               8
has served a qualifying prior felony prison term for purposes of a section [667.5(b)]
enhancement.” (Buycks, at p. 889, fn. 13, italics added; People v. Kelly, supra,
28 Cal.App.5th at pp. 901–902 [noting dicta in Buycks].)
       “It is, of course, axiomatic that it is only the ratio decidendi of a Supreme Court
opinion that is fully binding as precedent on the lower courts of this state. [Citations.] . . .
It is equally axiomatic, however, that Supreme Court dicta is not to be blithely ignored.
Indeed, such dicta is said to be ‘persuasive’ [citation] and to ‘command[] serious
respect.’ ” (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3rd 203, 212.)
“As one appellate court has advised: ‘Generally speaking, follow dicta from the
California Supreme Court.’ ” (Aviles-Rodriguez v. Los Angeles Community College Dist.
(2017) 14 Cal.App.5th 981, 990.) Consequently, we accept the conclusion of our Fifth
District colleagues that “the broad interpretation of Proposition 47 by the California
Supreme Court indicates that it should likewise apply to mitigate the effects of the
washout rule.” (People v. Kelly, supra, 28 Cal.App.5th at p. 901; Warren, supra,
24 Cal.App.5th at p. 904.)
B.     The Full Resentencing Rule
       “[U]pon remand for resentencing after the reversal of one or more subordinate
counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the
defendant’s sentence on the counts that were affirmed, including the term imposed as the
principal term.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) In Buycks, the
Supreme Court, articulating the “full resentencing rule,” held that “ ‘a full resentencing as
to all counts is appropriate, so the trial court can exercise its sentencing discretion in light
of the changed circumstances.’ ” (Buycks, supra, 5 Cal.5th at p. 893, quoting People v.
Navarro (2007) 40 Cal.4th 668, 681.) The court explained that, “notwithstanding the
Estrada rule, a person may petition for recall of his or her current sentence under
section 1170.18, subdivision (a), upon which the trial court, when it resentences on the
eligible felony conviction, must also resentence the defendant generally and must
therefore reevaluate the continued applicability of any enhancement based on a prior
felony conviction. [¶] . . . [S]ection 1170.18’s exception to [the] rule of finality applies


                                               9
not only to individual counts, but to the entire case in which the judgment contains at
least one felony conviction qualifying for reduction to a misdemeanor under the
resentencing procedures of Proposition 47.” (Buycks, at p. 894.)
         Baldwin is therefore entitled to plenary resentencing, with the now misdemeanor
convictions for his 1998, 2000, and 2003 convictions no longer eligible for use as
§667.5(b) enhancements, subject only to the requirement that Baldwin may not receive an
aggregate sentence greater than that previously imposed. (See People v. Craig (1998)
66 Cal.App.4th 1444, 1448; People v. Burbine, supra, 106 Cal.App.4th at pp. 1258–
1259.)
                                     III.   DISPOSITION
         The matter is remanded to the trial court to recalculate and reimpose sentence in
accordance with the views expressed in this opinion.




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                                                 _________________________
                                                 BRUINIERS, J.*


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

                                            11
A147588




          12
Superior Court of Del Norte County, No. CRF12-9177, William H. Follett, Judge.

Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine
A. Rivlin, Bruce M. Slavin and Basil Williams, Deputy Attorneys General, for Plaintiff
and Respondent.




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