California Court of Appeal Jul 6, 2016 No. E064030Unpublished
Filed 7/6/16 P. v. Hamilton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064030
v. (Super.Ct.No. INF1301035)
ROBERT THOMAS HAMILTON III, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed with directions.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair J.
Agcaoili and Christen E. Somerville, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant Robert Thomas Hamilton III petitioned the superior court under
Proposition 47, the Safe Neighborhoods and Schools Act, to reclassify and resentence as
misdemeanors his felony convictions for second degree burglary and receiving stolen
property. (Pen. Code, § 1170.18.) The trial court granted the petition with respect
where record did not establish primary offense was a felony and not a misdemeanor];
see In re Rottannak K. (1995) 37 Cal.App.4th 260, 281 [noting § 12022.1 does not apply
to infractions or misdemeanors].)
If on remand the trial court determines the value of the property acquired during
defendant’s burglary did not exceed $950 and that defendant does not pose an
unreasonable risk of danger to public safety, it shall recall the felony sentence on count 1
and resentence defendant to a misdemeanor under section 459.5. (§ 1170.18, subd. (b).)
“Any felony conviction that is recalled and resentenced under subdivision (b) . . . shall be
considered a misdemeanor for all purposes, except that such resentencing shall not
permit that person to own, possess, or have in his or her custody or control any firearm or
13
prevent his or her conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k), italics added.)
Section 1170.18, subdivision (k), contains identical language to section 17.
When a trial court exercises its discretion to declare a felony wobbler to be a
misdemeanor, the offense “is a misdemeanor for all purposes . . . .” (§ 17, subd. (b)(3);
hereafter § 17(b)(3).) In People v. Park (2013) 56 Cal.4th 782 (Park), the defendant
pleaded guilty to assault with a deadly weapon (§ 245, subd. (a)(1)), and the trial court
suspended the sentence and placed the defendant on probation. (Park, at p. 787.) After
the defendant successfully completed his probation, the trial court declared the offense to
be a misdemeanor under section 17(b)(3) and later dismissed the charge pursuant to
section 1203.4, subdivision (a)(1). (Park, at p. 787.) The defendant was subsequently
convicted of attempted voluntary manslaughter (§§ 664, 192, subd. (a)) and, inter alia,
admitted to suffering a prior serious felony conviction within the meaning of section 667,
subdivision (a), to wit, the prior conviction for assault with a deadly weapon. (Park, at
p. 788.) Although the defendant informed the trial court the strike prior had been
declared a misdemeanor pursuant to section 17(b)(3), the trial court imposed a five-year
sentence enhancement under section 667, subdivision (b). (Park, at p. 788.)
The California Supreme Court noted “reviewing courts have long recognized that
reduction of a wobbler to a misdemeanor under what is now section 17[, subdivision] (b)
generally precludes its use as a prior felony conviction in a subsequent prosecution.”
(Park, supra, 56 Cal.4th at p. 794.) “[O]ne of the ‘chief’ reasons for reducing a wobbler
to a misdemeanor ‘is that under such circumstances the offense is not considered to be
14
serious enough to entitle the court to resort to it as a prior conviction of a felony for the
purpose of increasing the penalty for a subsequent crime.’” (Ibid., quoting In re Rogers
(1937) 20 Cal.App.2d 397, 400-401.) However, the court also noted that “the Legislature
sometimes has explicitly made clear its intent to treat a wobbler as a felony for specified
purposes notwithstanding a court’s exercise of discretion to reduce the offense to a
misdemeanor.” (Park, at p. 794.) Based on its review of the extant case law, the court
“discern[ed] a long-held, uniform understanding that when a wobbler is reduced to a
misdemeanor in accordance with the statutory procedures, the offense thereafter is
deemed a ‘misdemeanor for all purposes,’ except when the Legislature has specifically
directed otherwise.” (Id. at p. 795.) Because the court found nothing in the language or
history of section 667, subdivision (a), to indicate an intent to depart from the general
rule under section 17(b)(3), the court ruled “that when a wobbler has been reduced to a
misdemeanor the prior conviction does not constitute a prior felony conviction within the
meaning of section 667[, subdivision] (a).” (Park, at p. 799.)
“‘When legislation has been judicially construed and a subsequent statute on a
similar subject uses identical or substantially similar language, the usual presumption is
that the Legislature [or the voters] intended the same construction, unless a contrary
intent clearly appears.’ [Citation.]” (Rivera, supra, 233 Cal.App.4th at p. 1100; People
v. Medina (1995) 39 Cal.App.4th 643, 650.) Applying the reasoning from Park, we
conclude the voters who adopted Proposition 47 intended that a reclassified felony
offense is a misdemeanor for all purposes except for the express firearm exceptions found
in section 1170.18, subdivision (k), or when the Legislature expressly provided that a
15
felony wobbler conviction is treated as a felony notwithstanding its reduction to a
misdemeanor. (Park, supra, 56 Cal.4th at p. 795.) And we find nothing in the language
or purposes of section 12022.1 to indicate an intent on the part of the Legislature to
override the general rule that a felony wobbler declared to be a misdemeanor is a
misdemeanor for all purposes. “‘[T]he purpose and intent behind a section 12022.1
enhancement, generally speaking, is . . . to penalize recidivist conduct with increased
punishment.’ [Citation.] The more specific purpose of the on-bail enhancement is to
‘discourage a certain type of recidivist behavior,’ by deterring ‘the commission of new
felonies by persons released from custody on an earlier felony.’ [Citations.]” (People v.
Ormiston (2003) 105 Cal.App.4th 676, 687, second italics added.) If the primary or
secondary felony offense is declared to be a misdemeanor, reimposing the enhancement
will not advance the purpose of discouraging that specific type of recidivism.
As noted, ante, the out-on-bail enhancement under section 12022.1, subdivision (b),
may only be imposed when the defendant is convicted of both a primary felony offense and
a secondary felony offense. (Walker, supra, 29 Cal.4th at p. 586.) When a trial court
reclassifies a felony wobbler as a misdemeanor under section 1170.18, subdivision (b), it is
a misdemeanor for all purposes (§ 1170.18, subd. (k)), and the necessary factual predicate
for imposing the out-on-bail enhancement simply disappears. (See In re Ramey, supra, 70
Cal.App.4th at p. 512 [“Like the Cheshire Cat, the felony count disappeared from sight,
leaving nothing behind but a mischievous grin. There being no felony conviction, the stay
of the enhancement should have become permanent.”].)
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Our conclusion is also consistent with the purposes of Proposition 47. As two
respected commentators have stated, resentencing under section 1170.18 requires a trial
court to consider a defendant’s entire sentence anew. “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
sentence and resentence him with the Proposition 47 count now a misdemeanor.”
(Couzens & Bigelow, Proposition 47: “The Safe Streets and Schools Act” (Feb. 2016)
p. 62, italics added, at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>
[as of July 5, 2016].) At the time of resentencing, a defendant whose secondary felony
offense is reclassified as a misdemeanor under Proposition 47 will no longer have been
convicted of both a primary and secondary felony offense, so the trial court should
sentence the defendant accordingly.
In sum, if the trial court reclassifies defendant’s burglary conviction as
misdemeanor shoplifting and resentences him under section 1170.18, defendant’s felony
conviction will be a misdemeanor for all purposes and the trial court cannot reimpose the
out-on-bail enhancement.
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III.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed. On remand,
the trial court shall conduct a hearing to determine whether the value of the property
acquired during the burglary alleged in count 1 exceeded $950, and whether defendant
poses an unreasonable risk of danger to public safety. If the trial court determines
defendant is eligible for resentencing on count 1 under Proposition 47, it shall not
reimpose the out-on-bail enhancement.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
CODRINGTON J.
18
AI Brief
AI-generated · verify before citing
Holding. A second degree burglary conviction based on theft by false pretenses qualifies as shoplifting under Proposition 47, and if the conviction is reclassified as a misdemeanor, the trial court may not reimpose an out-on-bail sentence enhancement.
Issues
Whether a second degree burglary conviction based on theft by false pretenses is eligible for reclassification as shoplifting under Proposition 47.
Whether an out-on-bail sentence enhancement must be vacated if the underlying felony conviction is reclassified as a misdemeanor under Proposition 47.
Disposition. Reversed with directions.
Quotations verified verbatim against the opinion
“Because defendant entered a Walmart with the intent to commit a larceny, his crime satisfied the intent for shoplifting under section 459.5”
“When a trial court reclassifies a felony wobbler as a misdemeanor under section 1170.18, subdivision (b), it is a misdemeanor for all purposes”
“If the trial court resentences defendant under Proposition 47, it shall not reimpose the out-on-bail enhancement.”