California Court of Appeal Sep 30, 2016 No. D068889Unpublished
Filed 9/30/16 P. v. Foster CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068889
Plaintiff and Appellant,
v. (Super. Ct. Nos. SCD242205, SCE319954) ELVIN VINCENT FOSTER, JR.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Bonnie M. Dumanis, District Attorney, James E. Atkins and Jennifer R. Kaplan,
Deputies District Attorney, for Plaintiff and Appellant.
Robert E. Boyce and Benjamin Kington, under appointment by the Court of
Appeal, for Defendant and Respondent.
On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act (Proposition 47 or the Act), which went into effect the next day. The
Act downgrades several felonies and wobblers to misdemeanors and permits persons
convicted of those felonies and wobblers to have them redesignated as misdemeanors.
(Pen. Code,1 § 1170.18.) As relevant here, section 12022.1, subdivision (b), requires a
court to increase any sentence of imprisonment for a felony by two years if the defendant
committed that felony (secondary offense) while he or she was released from custody on
subd. (c)), and a strike prior (§§ 667, subd. (b)-(i), 1170.12, 668). This case was
numbered SCD242205.
On April 5, 2013, Foster was sentenced to prison on both cases for a total term of
19 years eight months, including the consecutive imposition of two years for the on-bail
enhancement. For the on-bail enhancement under section 12022.1, subdivision (b), the
grand theft in case number SCE319954 served as the primary offense while the robberies
in case number SCD242205 served as the secondary offenses.
After the passage of Proposition 47, Foster petitioned the superior court to have
his felony grand theft from person in case number SCE319954 designated as a
misdemeanor under section 1170.18. The People conceded Foster's conviction for felony
grand theft was eligible for redesignation. The superior court granted the petition and
redesignated the grand theft felony to a misdemeanor.
The day after the court granted Foster's petition, Foster filed a motion to dismiss or
stay the on-bail enhancement on his secondary felony in case number SCD242205,
contending that the underlying primary felony in case number SCE319954 was now a
misdemeanor. Thus, the basis for the enhancement no longer existed. The People
opposed the motion.
After considering the papers and allowing oral argument, the superior court
granted Foster's motion and stayed the two-year on-bail enhancement, reducing Foster's
sentence in SCD242205 from 19 to 17 years.
The People timely appealed.
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DISCUSSION
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors,
unless the offenses were committed by certain ineligible defendants. These offenses had
previously been designated as either felonies or wobblers (crimes that can be punished as
either felonies or misdemeanors). Proposition 47 (1) added chapter 33 to the Government
Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code,
and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety
Code sections 11350, 11357, and 11377." (People v. Rivera (2015) 233 Cal.App.4th
1085, 1091 (Rivera).)
"Proposition 47 also created a new resentencing provision—section 1170.18.
Under section 1170.18, a person 'currently serving' a felony sentence for an offense that
is now a misdemeanor under Proposition 47, may petition to recall that sentence and
request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria
shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless
the court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.' (Id., subd. (b).)" (People v. Lynall (2015)
233 Cal.App.4th 1102, 1109.)
Proposition 47 additionally applies to a person who has already served a felony
sentence for an offense that is now a misdemeanor. In that instance, the person may file
an application with the trial court that entered judgment of conviction in his or her case to
have the felony conviction or convictions designated as misdemeanors. (§ 1170.18,
subd. (g).)
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Here, the parties agree that the superior court properly designated Foster's
conviction for grand theft as a misdemeanor in case number SCE319954. The
disagreement begins regarding the impact of that designation. The People assert the
application of section 1170.18 is prospective only, and thus, cannot be used retroactively.
Section 1170.18, subdivision (k) sets forth, in pertinent part, "Any felony conviction that
is . . . designated as a misdemeanor under subdivision (g) 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 . . . ." The People
emphasize that courts interpreting section 1170.18, subdivision (k) have likened it to
section 17, subdivision (b) holding that phrase "misdemeanor for all purposes" is
prospective only, not retroactive. (See Rivera, supra, 233 Cal.App.4th at p. 1100.) We
are aware that several Courts of Appeal have used that interpretation to conclude that
Proposition 47 does not apply retroactively to eliminate a prison prior enhancement under
section 667.5, subdivision (b) when the underlying felony is redesignated a misdemeanor
under Proposition 47. However, despite an apparent consensus by the Courts of Appeal,
that issue remains unresolved as it is currently pending before our high court.2 And
2 The issue is pending before our Supreme Court, which granted review in the lead case of People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900, and that a "grant and hold order" pending resolution of Valenzuela has been issued in People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27. 2016, S233011; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539. Additionally, on May 25, 2016, review was granted regarding the same issue in People v. Louder (S233865), an unpublished case.
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while we await the Supreme Court's guidance on that issue, we need not add another
voice to the fray.
Here, we do not deem the critical issue before us to be the retroactivity of
Proposition 47. Indeed, it is not necessary that we interpret the phrase "misdemeanor for
all purposes" in section 1170.18, subdivision (k) to an answer the question presented
here. Put differently, the critical inquiry is not whether Proposition 47 applies
retroactively, but whether an on-bail enhancement may remain when the primary felony
is subsequently reduced to a misdemeanor. To answer this question, we turn our
attention to section 12022.1.
Our role in construing a statute is to ascertain the intent of the Legislature so as to
effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.)
" ' " 'Penal Code sections must generally be construed " 'according to the fair import of
their terms, with a view to effect its objects and to promote justice.' " [Citations.] [¶]
'Consistent with that general principle, appellate courts first examine the language of the
code section to determine whether the words used unequivocally express the Legislature's
intent. If no ambiguity, uncertainty, or doubt about the meaning of the statute appear, the
provision is to be applied according to its terms without further judicial construction.
[Citations.] [¶] When the language of the section is on its face ambiguous or leaves
doubt, . . . the court must resort to extrinsic aids to ascertain that purpose behind the
statute and give the provision a judicially created meaning commensurate with the
purpose.' " ' " (People v. Franz (2001) 88 Cal.App.4th 1426, 1440; see People v. Avila
(2000) 80 Cal.App.4th 791, 796.) Finally, when a statute defining a crime or punishment
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is susceptible to two reasonable interpretations, we will "ordinarily adopt that
interpretation more favorable to the defendant." (People v. Avery (2002) 27 Cal.4th 49,
57.) However, "although true ambiguities are resolved in a defendant's favor, an
appellate court should not strain to interpret a penal statute in defendant's favor if it can
fairly discern a contrary legislative intent." (Id. at p. 58.)
"Although section 12022.1 is not ambiguous on its face, the statute in rather
general language prescribes a mandatory two-year enhancement where the defendant
commits a second offense while 'released from custody on a primary offense.'
(§ 12022.1, subd. (b).)" (People v. Ormiston (2003) 105 Cal.App.4th 676, 686.) The
statute defines "primary offense" to mean "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 . . . or for which release on bail or his or her own recognizance has been
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." (People v. Watkins (1992) 2 Cal.App.4th 589, 593.)
Yet, it is clear that a section 12022.1, subdivision (b) on-bail enhancement can be
imposed only if the defendant is convicted of both the primary and secondary offenses.
(§ 12022.1, subd. (d); McClanahan, supra, at p. 869; In re Jovan B. (1993) 6 Cal.4th 801,
814.) Therefore, "a conviction for the criminal charge on the primary offense is an
essential prerequisite to the imposition of the [section 12022.1] 'on bail' enhancement."
(In re Ramey (1999) 70 Cal.App.4th 508, 512.)
Here, it is undisputed that Foster no longer has a conviction for a qualifying
primary offense. Thus, he is no longer the type of felony recidivist at which the statute is
aimed. Accordingly, we do not agree with the People that a stay of Foster's on-bail
enhancement undermines the statute's purpose. Put differently, section 12022.1 is not
aimed at a defendant like Foster.
The People additionally contend that if we affirm the trial court's order to stay
Foster's on-bail enhancement, we countenance an absurd result not intended by voters.
They caution us that affirming the trial court's order could impact "limitless" "ancillary,
unenumerated offenses." We do not foresee such a parade of horribles based on our
opinion here. We are aware that several cases involving Proposition 47 are currently
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pending in front of our Supreme Court, and we look forward to our high court resolving
those pending issues.3 In the meantime, here, we avoid any broad pronouncements about
Proposition 47 or its impact. Moreover, we are not concerned that this case will be used
as a sword to strike at "ancillary" or "unenumerated offenses" not covered by Proposition
47. To the contrary, this case concerns an undisputed proper use of Proposition 47 to
designate an offense a misdemeanor that is clearly enumerated in the Act. Then, we
interpret section 12022.1 to analyze if the enhancement can remain if the primary offense
no longer exists. We conclude the enhancement is unauthorized in part based on clear
precedent that holds the on-bail enhancement may only be imposed if "the defendant is
ultimately convicted of the 'primary' and 'secondary' offenses." (McClanahan, supra,
3 Cal.4th at p. 869.) Here, it is undisputed that the ultimate result regarding Foster's
primary offense is that it is a misdemeanor. Because the primary offense is not a felony,
3 For example, the California Supreme Court, on its own motion, granted review in People v. Buycks (2015) 241 Cal.App.4th 519, review granted January 16, 2016, S231765. The court defined the issue in that case as follows: "Was defendant eligible for resentencing on the penalty enhancement for committing a new felony while released on bail on a drug offense even though the superior court had reclassified the conviction for the drug offense as a misdemeanor under the provisions of Proposition 47?" Although we anticipate that our high court's resolution of Buycks will impact the instant case, we observe some slight procedural differences between the two cases. In Buycks, the Court of Appeal struck an on-bail enhancement after the primary offense and one of the secondary offenses were reduced to misdemeanors under Proposition 47. The appellate court noted that the trial court was sentencing the defendant anew, and thus, the trial court should not have imposed the enhancement because the primary offense was no longer a felony. Here, Foster moved to redesignate only his primary offense to a misdemeanor under Proposition 47. A day after his petition was granted, Foster moved to have the court stay his on-bail enhancement pertaining to his secondary offense. 11
section 12022.1 cannot apply. (See McClanahan, supra, at p. 869; In re Ramey, supra,
70 Cal.App.4th at p. 512.)
Finally, we are not persuaded by the People's contention that the trial court lacked
statutory authority to resentence Foster. Again, the People base their argument on
Proposition 47, arguing that it cannot be used to resentence a defendant on ancillary or
unenumerated offenses. Like we discuss above, we find the trial court properly
resentenced Foster because the on-bail enhancement under section 12022.1 no longer
applied to him. An unauthorized sentence may be corrected at any time. (See People v.
Scott (1994) 9 Cal.4th 331, 354-355; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)
Without a conviction of a felony to constitute the primary offense under section 12022.1,
the trial court had the authority to correct Foster's unauthorized sentence, which included
an improper two-year enhancement. The trial court did not err.
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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AI Brief
AI-generated · verify before citing
Holding. When a defendant's primary felony offense is redesignated as a misdemeanor under Proposition 47, the two-year on-bail sentence enhancement under Penal Code section 12022.1, subdivision (b) must be stayed because the enhancement requires a felony conviction as a primary offense.
Issues
Does the redesignation of a primary felony offense to a misdemeanor under Proposition 47 eliminate the on-bail enhancement under Penal Code section 12022.1, subdivision (b)?
Did the trial court have the authority to stay the on-bail enhancement after the primary offense was redesignated as a misdemeanor?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“When a defendant's sentence for the secondary offense is enhanced under section 12022.1, subdivision (b) based on the primary offense, and when the defendant later has the primary offense redesignated as a misdemeanor under Proposition 47, does that redesignation eliminate the section 12022.1, subdivision (b) enhancement? Based on our interpretation of section 12022.1, we conclude that it does”
“a conviction for the criminal charge on the primary offense is an essential prerequisite to the imposition of the [section 12022.1] 'on bail' enhancement.”
“Without a conviction of a felony to constitute the primary offense under section 12022.1, the trial court had the authority to correct Foster's unauthorized sentence, which included an improper two-year enhancement.”