People v. Buycks (2015)__ Cal.App.4th__ : Prop 47 reduced misdemeanor cannot be used as a felony bail enhancement

In People v. Buycks, Case No. B262023, decided on October 20, 2015, defendant committed a felony narcotics offense (Health & Saf. Code, § 11350) and, while out on bail on that first offense, committed two additional felony offenses: petty theft with a prior (Pen. Code, § 666, subd. (a)) and evading a police officer (Veh. Code, § 2800.2, subd. (a)).  In sentencing appellant in the second case, the court imposed a two-year sentencing enhancement pursuant to Penal Code section 12022.1, subdivision (b), which applies when a defendant commits a second felony while out on bail on an earlier felony. After voters passed Proposition 47, the trial court in the first case granted appellant’s petition to reduce his narcotics offense to a misdemeanor. Thereafter, the court in the second case reduced his petty theft with a prior count to a misdemeanor. The second evading police felony count remained, and, because appellant’s original sentence was structured around the petty theft with a prior as the principal term, the court conducted a full resentencing to elevate the remaining felony count to a full base term. The court reimposed the section 12022.1 enhancement. The trial court erred. 

Section 12022.1, subdivision (b), provides, “Any person arrested for a secondary
offense that was alleged to have been committed while that person was released from
custody on a primary offense shall be subject to a penalty enhancement of an additional
two years, which shall be served consecutive to any other term imposed by the court.”
Both “primary offense” and “secondary offense” in section 12022.1 are statutorily limited
to felonies. “Primary offense” means “a felony offense for which a person has been
released from custody on bail or on his or her own recognizance prior to the judgment
becoming final, including the disposition of any appeal, or for which release on bail or
his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) “Secondary
offense” means “a felony offense alleged to have been committed while the p

The precise issue  is whether the voters intended section 1170.18, subdivision (k) to preclude the trial court from reimposing the on-bail enhancement when it resentenced appellant in his second case after his felony in the first case was reduced to a misdemeanor.  Appellant was subject to a full resentencing in the second case. (See Couzens & Bigelow, Proposition 47, supra, at p. 57 [“Because the Proposition 47 count is part of a multiple-count sentencing scheme, changing the  sentence of one count fairly puts into play the sentence imposed on non-Proposition 47 counts, at least to the extent necessary to preserve the original concurrent/consecutive sentencing structure.  The purpose of section 1170.18 is to take the defendant back to the time of the original sentencing and resentence him with the Proposition 47 count now a misdemeanor.” (Italics added.); id. at p. 59 [“If the petitioner is resentenced as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other counts, the court should resentence on all counts.”]; cf. § 1170.18, subd. (b) [“If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.” (Italics added.)]; People v. Navarro (2007) 40 Cal.4th 668, 681 [finding full resentencing on all counts was appropriate “so the trial court can exercise its sentencing discretion in light of the
changed circumstances”].) 

Because the court was sentencing appellant anew, it was required to reevaluate the applicability of section 12022.1 at that time. By then, appellant’s felony in the first case had been reduced to a misdemeanor. In that circumstance, the plain language of section 1170.18, subdivision (k) directed that appellant’s prior felony must be treated as a “misdemeanor for all purposes.” Since the plain meaning of section 12022.1 required that both the primary and secondary offenses be felonies in order for appellant to incur the additional penalty, the court could not reimpose the section 12022.1 enhancement.

This case is analogous to People v. Park (2013) 56 Cal.4th 782 (Park), in which
our high court interpreted the nearly identical phrase in section 17, subdivision (b) to
preclude imposition of a sentencing enhancement based on a prior “wobbler” conviction
that had been reduced to a misdemeanor.  When the court properly has exercised its discretion to reduce a wobbler to a misdemeanor under the procedures set forth in section 17(b), the statute generally has been construed in accordance with its plain language to mean that the offense is a misdemeanor ‘for all purposes.’” (Park, at p. 793.) 

Thus, the two-year on-bail enhancement pursuant to section 12022.1 is stricken.

 Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the link below, you will be directed to the Amazon website.  If you make a purchase today, we will receive a nominal commission from your purchase.  This will not increase the amount you pay for the item. Check out the deals before they are gone.

 

People v. Hoffman: Checks Cannot Be Aggregated To Deny Prop 47 Re-Sentencing.

In People v. Hoffman, _Cal.App.4th__, Case No. B261945, decided on November 5, 2015, the defendant was convicted of seven separate felony counts for violating Penal Code section 473 [forged check] in May 2014. There were 18 checks and originally 18 counts, as well as a few additional counts.  The amount of the checks ranged from $150 to $450, totaling $8734.  The defendant signed a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) that allowed the court to consider the dismissed counts at sentencing. Defendant had no prior convictions.  

In June 2014, the trial court suspended imposition of sentence and placed Hoffman on formal felony probation with terms and conditions, including 180 days in county jail.  The court denied Hoffman's request to reduce the felonies to misdemeanors but encouraged her to renew the request if she succeeds in her drug treatment program. 

In July 2014, the trial court released Hoffman from serving her remaining jail term to enter a residential treatment program.  Hoffman subsequently violated probation and tested positive for drugs several times. 

In November 2014, the electorate passed Proposition 47.  The Act reclassifies forgery as a misdemeanor if "the value of the check . . . does not exceed [$950]."  (§ 473, subd. (b).)  In December 2014, defendant filed a petition for resentencing under the Act.  (§ 1170.18.)  The trial court denied the request to reduce Hoffman's seven felony forgery counts to misdemeanors because the total amount of the checks exceeded $950.  The court said, "The aggregate amount exceeds the $950.  I think it takes her outside the spirit of the law that was passed by the voters."
Defendant appealed the court’s ruling.  

The appellate court explained that Proposition 47 allows a person, such as Hoffman, who is currently serving a felony sentence for an offense that is now a misdemeanor (forgery), to petition for recall of sentence and resentencing in accordance with its provisions.  (§§ 1170.18, subd. (a), 473, subd. (b).)  If the petitioner satisfies the statutory criteria, the court "shall" resentence petitioner to a misdemeanor "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."  (§ 1170.18, subd. (b).)  There is no other discretionary provision.  The Act "shall be liberally construed to effectuate its purposes."  (Prop. 47, eff. Nov. 5, 2014, § 18; see Voter Information Guide, supra, text of proposed laws, p. 74.) 

The statutory criteria for resentencing are that the "person [is] currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense . . . ."  (§ 1170.18, subd. (a).)  "Unreasonable risk of danger to public safety" is defined to mean an unreasonable risk that the petitioner will commit a new super-strike offense, such as murder, rape or child molestation.  (Id., subd. (c), § 667, subd. (e)(2)(C)(iv).) 

Hoffman satisfies the statutory criteria for resentencing.  She is serving a sentence for conviction of felonies that would have been misdemeanors under the Act.  Section 473, subdivision (b), as amended by the Act, provides, "[A]ny person who is guilty of forgery relating to a check, . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year," unless the person has a prior super-strike conviction, is required to register as a sex-offender, or has committed identity theft in connection with the forgery. 

On appeal the prosecution argued that Hoffman's Harvey waiver allowed the trial court to rely on facts underlying the dismissed forgery and grand theft counts to find that Hoffman is "outside the spirit" of Proposition 47.  The appellate court explained that the Harvey waiver allowed the trial court to rely on facts underlying the dismissed counts to make whatever sentencing determinations were authorized under section 1170.18.  But only two determinations were authorized by section 1170.18:  (1) whether Hoffman meets the statutory criteria, and (2) whether Hoffman's resentencing would pose an unreasonable risk of danger of a super-strike offense.   

The trial court may not refuse to reduce a defendant's sentence based on the court's notion of the statute's "spirit."  The "criteria" for resentencing are explicitly stated in section 1170.18, subdivision (a), and "unreasonable risk" is defined in subdivision (c).  If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the "felony sentence shall be recalled and the petitioner resentenced to a misdemeanor."  (Id., subd. (b).)  Further, the appellate court explained that in construing a measure, we may not undertake to rewrite its unambiguous language.  (People v. Goodliffe (2009) 177 Cal.App.4th 723, 726.) 

The appellate court reversed the trial court’s order.  

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the link below, you will be directed to the Amazon website.  If you make a purchase today, we will receive a small 4 percent commission from your purchase.  This will not increase the amount you pay for the item.  Check out the deals below before they are gone.

 

People v. Page: Vehicle Code section 10851 Conviction Is Not Prop 47 Eligible

Defendant was convicted of violating Vehicle Code section 10851 [taking or driving a vehicle], along with other crimes.  Subsequently, he filed a petition under Proposition 47 to have this conviction reduced to a misdemeanor but the trial court denied his petition.  Defendant appealed the order in People v. Page (2015) __Cal.App.4th__, Case No. E062760. 

On appeal defendant argued that Vehicle Code section 10851 is a lesser included offense to Penal Code section 487, subdivision (d)(1), grand theft, auto.  (People v. Barrick (1982) 33 Cal.3d 115, 128.) Because the greater offense of Penal Code section 487 [grand theft auto] is eligible for a reduction, the lesser included offense of Vehicle Code section 487 should be found to be  Proposition 47 eligible too.  Proposition 47 makes Penal Code section 487 "or any other provision of law defining grand theft" a misdemeanor if the amount taken wasn't  over $950.  (Pen. Code, § 490.2(a).) 

But the appellate court rejects this argument.  Penal Code section 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47. (Pen. Code, § 1170.18.)  The appellate court explains that it cannot say that defendant would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense because Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 [listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or misdemeanor punishment”].)  Proposition 47 left intact the language in Vehicle Code
section 10851, subdivision (a). 

In  footnote 2, the appellate court also states that “[e]ven if we were to assume that Penal Code section 490.2 applied as defendant would have it—to reduce some Vehicle Code section 10851 convictions that would otherwise be felonies to misdemeanors, at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less.{CT 1, 5-7} The burden of proof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition, providing no information at all regarding his eligibility for resentencing in his petition.{CT 35-36}” 

The court also rejects defendant’s equal protection argument: “The California
Supreme Court has held that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion
in charging under one such statute and not the other, violates equal protection principles.”
(People v. Wilkinson (2004) 33 Cal.4th 821, 838)   

The order appellant appealed from was affirmed. 

Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Check out the great deals at Amazon below. Disclosure: if you click the Amazon link, you will be directed to the  Amazon website.   Thank you.

These can be obtained from Amazon  by clicking on the links provided.  Thank you.