People v. Ferguson CA3

Filed 3/15/16 P. v. Ferguson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C078270

Plaintiff and Appellant, (Super. Ct. No. CM041680)

v.

TIMOTHY LEROY FERGUSON,

Defendant and Respondent.

The People appeal from a judgment reducing defendant Timothy Leroy Ferguson’s conviction for a felony failure to appear (FTA) in violation of Penal Code section 1320, subdivision (b) to a misdemeanor violation of section 1320, subdivision (a). (Unless otherwise set forth, statutory section references that follow are to the Penal Code.) The People argue the trial court’s action under the “Safe Neighborhoods and Schools Act” (the Act) (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)),

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which did not amend, reduce, or modify section 1320, subdivision (b) constituted an unauthorized expansion of the scope of the Act.

We agree with the People that the court’s decision, pursuant to the Act, to reduce the section 1320, subdivision (b) FTA to a violation of section 1320, subdivision (a), a misdemeanor, was error. We will remand for resentencing.

DISCUSSION On August 11, 2014, defendant was charged with failing to appear while released on his own recognizance in violation of section 1320, subdivision (b), a felony. The complaint also alleged his failure to appear brought him within the provisions of section 12022.1 (penalty enhancement for felony committed while released from custody before final judgment on prior felony) thus adding two years to the penalty for a violation of section 1320, subdivision (b). On November 5, 2014, defendant pleaded no contest to a violation of section 1320, subdivision (b) pursuant to an agreement with the People that the section 12022.1 penalty enhancement allegation would be dismissed. On December 3, 2014, defendant appeared for sentencing for this offense. After argument, during which the People agreed that, whatever the applicability of Proposition 47, the court had the discretion to reduce the (section 1320, subdivision (b)) offense to a misdemeanor pursuant to section 17, subdivision (b), the court said: “Right now, what I would indicate is that it is my belief under Prop. 47, [section 1320, subdivision (b)] should properly be - - should proceed as a misdemeanor under [section 1320, subdivision (a)]. As a fall back though, I am indicating that if an Appellate Court were to decide that I was wrong in the fact these are felonies under, I guess an equal protection and/or fairness argument, I would be inclined to reduce this under my discretion to a misdemeanor. [¶] . . . [¶]