Marshall

Daniel Gordon Marshall was convicted by a jury of residential burglary. In a separate court trial, the court found to be true three prior felony convictions alleged pursuant to Penal Code section 667. In this appeal Marshall argues for reversal of one of the prior convictions, contending: (1) after he was honorably discharged from the California Youth Authority (CYA), the conviction became a misdemeanor for all purposes; (2) there was an inadequate waiver of his constitutional rights at the time of his guilty plea to the charge; and (3) because the prior had been used to enhance another sentence, its use here violates the prohibition against double jeopardy. We agree with the first contention and affirm with appropriate modification.

Marshall contends that a 1979 burglary conviction which was used to enhance his sentence pursuant to section 667 was a misdemeanor and should not have been used. He correctly asserts that his honorable discharge from CYA in that case rendered the conviction a misdemeanor for all purposes.

Section 17, subdivision (c) reads: “When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by…