People v. Marshall CA2/8

Filed 9/6/16 P. v. Marshall CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B266898

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA094751) v.

DWAYNE L. MARSHALL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Laura Laesecke, Judge. Reversed and remanded.

Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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In October 2013, as part of a plea agreement, defendant Dwayne L. Marshall pled no contest to a felony charge of drug possession (Health & Saf. Code, § 11377, subd. (a)) and admitted serving seven prior prison terms (Pen. Code, § 667.5, subd. (b)), in exchange for dismissal of a felony first degree residential burglary charge (Pen. Code, § 459) and an 11-year prison sentence. A little more than a year later, California voters passed Proposition 47 (“The Safe Neighborhoods and Schools Act”; Pen. Code, § 1170.18), which reduced certain theft- and drug-related felonies to misdemeanors. Defendant petitioned under Proposition 47 to recall his sentence and have his felony drug possession conviction reduced to a misdemeanor. The People opposed his petition, contending that resentencing would deny them the benefit of their plea bargain. The trial court in effect denied the petition, finding that if it were to grant the petition, defendant would have to withdraw his plea so as to permit the People to reinstate the dismissed burglary charge. Defendant declined to do so and brought this appeal. We reverse. FACTUAL AND PROCEDURAL BACKGROUND In April 2013, an information was filed charging defendant with first degree residential burglary (Pen. Code, § 459) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). It was also alleged that defendant had served several prior prison terms, and had suffered convictions for serious and violent felonies, three of which were “strikes.” (Pen. Code, §§ 667.5, subds. (b), (c), 667, subds. (d), (b)-(j), 1170.12.) Trial commenced on October 25, 2013. On October 29, 2013, defendant withdrew his guilty plea, entered a no contest plea to the drug possession charge, and admitted seven prior prison terms. On December 5, 2013, defendant was sentenced to a total term of 11 years in prison, consisting of four years for the drug possession and seven years for his prison priors. The burglary charge was dismissed according to the plea agreement. On November 17, 2014, defendant filed a petition for modification of his sentence under Proposition 47, seeking to have his felony drug possession conviction reduced to a misdemeanor. On December 22, 2014, the People orally opposed the petition, on the basis that they would not receive the “benefit of the [plea] bargain,” and insisted that if