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his or her own recognizance has been revoked.”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

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