People v. Eandi

Filed 8/19/15 CERTIFIED FOR PUBLICATION

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

THE PEOPLE, C078257

Plaintiff and Appellant, (Super. Ct. No. CM042230)

v.

COLETTE JEAN EANDI,

Defendant and Respondent.

APPEAL from a judgment (order of probation) of the Superior Court of Butte County, James F. Reilley, Judge. Vacated and remanded with directions.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Appellant.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Respondent.

A complaint filed on November 4, 2014, alleged that defendant Colette Jean Eandi willfully failed to appear in August 2014 on a felony charge of possessing a controlled

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substance (Pen. Code, § 1320, subd. (b))1 and alleged an enhancement for committing this offense while released from custody on her own recognizance (§ 12022.1). Defendant entered a plea of no contest the next day in exchange for dismissal of the enhancement with a Harvey2 waiver; the trial court also dismissed the underlying possession charge in case No. CM041535 (Health & Saf. Code, § 11377, subd. (a)). Defendant was referred to probation for a presentence report.

By operation of a November 2014 initiative, defendant’s crime of drug possession had been reduced to a misdemeanor at the time of its dismissal on November 5, 2014. (Health & Saf. Code, § 11377 [see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 13, p. 73].) On this basis, at sentencing on December 3, 2014, the trial court concluded that it should amend the charge of a felony violation of section 1320, subdivision (b) for failure to appear on felony charges to a misdemeanor violation of section 1320, subdivision (a) for failure to appear on misdemeanor charges. (The trial court indicated it would be “inclined” to exercise discretion under section 17 to reach the same result under the original felony charge, it being a so-called “wobbler.”)3 The trial court suspended imposition of sentence and granted probation to defendant subject to various conditions. The People filed a timely notice of appeal. (§ 1238, subd. (a)(6).) Defendant did not cross-appeal from the order of probation.