Filed 10/4/16 P. v. Moses CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068851

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. Nos. SCS233120;
                                                                     SCD224693)
CHARLES EDWARD MOSES, 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.

         Barbara A. Smith, 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

a primary offense (a felony). In this case, we must address the interaction of these two

provisions: 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, and accordingly affirm the

trial court's order staying the two-year enhancement Charles Edward Moses, Jr. received

under section 12022.1, subdivision (b).

                  FACTUAL AND PROCEDURAL BACKGROUND

       On October 13, 2009, Moses stole a $499.06 tool kit and a $14 combination tool

from Home Depot. On October 15, 2009, he was arraigned on a felony complaint

charging one count of grand theft (§487, subd. (a)) and alleging five prison priors

(§§ 667.5, subd. (b), 668) and a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). This

case was numbered SCS233120.

       On October 28, 2009, Moses pled guilty to count 1 (§487, subd. (a)) and admitted

a strike prior. The superior court set sentencing for December 9, 2009. Prior to

sentencing, Moses was released from custody on bond. The court sentenced Moses to




1      Statutory references are to the Penal Code unless otherwise specified.
                                             2
prison for 32 months, but he was allowed to remain at liberty on bond until the execution

of custody on January 14, 2010.

       While awaiting the execution of custody for grand theft, Moses beat his wife. He

was subsequently arraigned after being charged with one count of corporal injury to a

cohabitant (§ 273.5, subd. (a)) with an allegation of personal infliction of great bodily

injury (§ 12022.7, subd. (e)). It was further alleged that the felony offense was

committed while Moses was out on bail pending execution of custody on the grand theft

(primary offense) under section 12022.1, subdivision (b). The complaint also alleged

five prison priors (§§ 667.5, subd. (b), 668), a serious felony prior (§§ 667, subd. (a)(1),

668, 1192.7, subd. (c)), and a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). The

court vacated the execution of custody for the primary offense, trailing it behind Moses's

offense of corporal injury, which became the secondary offense under section 12022.1.

The case involving the corporal injury offense was numbered SCD224693.

       After a bench trial on March 4, 2010 for case number SCD224693, the superior

court found Moses guilty of count 1 (corporal injury) and found true the great bodily

injury and out-on-bail allegations under section 12022.7, subdivision (e) and 12022.1,

subdivision (b) respectively. Moses admitted as true all the prior convictions as alleged.

       For case number SCD224693, the court sentenced Moses to prison for 18 years,

two years of which were based on the on-bail enhancement under section 12022.1,

subdivision (b). The superior court also imposed a concurrent sentence of 32 months in

case number SCS233120.



                                              3
       On April 3, 2015, after the passage of Proposition 47, Moses petitioned to have his

felony grand theft conviction designated as a misdemeanor under section 1170.18. The

People did not contest the designation. On April 3, 2015, the superior court granted

Moses's petition and designated the grand theft conviction as a misdemeanor.

       On June 22, 2015, Moses filed a motion to dismiss or stay the on-bail

enhancement in SCD224693, arguing the "recent designation of his primary felony

conviction to a misdemeanor for all purposes require[d] dismissal of his . . . section

12022.1[, subdivision] (b) conviction." The People opposed the motion.

       After considering the papers and hearing oral argument, the superior court granted

Moses's motion, permanently stayed the two-year on-bail enhancement, and reduced

Moses's sentence in SCD224693 to 16 years. In doing so, the court observed:

          "I think, however, in attempting to harmonize the intent of
          Proposition 47 and, probably more importantly to me, the clear
          intent of the framers of Penal Code Section 12022.1[, subdivision]
          (b), that when either one of the legs of the two felony requirements
          for imposition of the enhancement fails, the enhancement should
          fail. Which I think the remedy, consistent with the statutory
          framework announced in 12022.1[, subdivision] (b), would be to
          order the two-year enhancement stayed[.]"

       The People timely appealed.

                                      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


                                             4
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).)

       Here, the parties agree that the trial court properly designated Moses's conviction

for grand theft as a misdemeanor in case number SCS233120. 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

                                               5
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 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 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


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.
                                             6
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

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

                                                7
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

revoked." (§ 12022.1, subd. (a)(1).) Section 12022.1, subdivision (a)(2), defines

"secondary offense" as "a felony offense alleged to have been committed while the

person is released from custody for a primary offense." Thus, "section 12022.1 permits

the imposition of an additional two-year term (enhancement) to be served consecutively

to the term being imposed for a criminal offense (secondary offense), . . . if the defendant

committed the secondary offense while on bail or own recognizance release pending trial

or appeal on another charge (primary offense)." (People v. Adams (1993) 6 Cal.4th 570,

572, fns. omitted.)

       Section 12022.1 does not make the defendant's conviction of the primary offense

an element of the enhancement for the purpose of proving the enhancement. Instead, the

statute only requires proof of conviction of the primary offense before the enhancement

can be imposed. (People v. Walker (2002) 29 Cal.4th 577, 586; see § 12022.1, subds. (b),

(c), (d).) Because the Legislature considered the possibility that the secondary offense

could be tried prior to the primary offense, it logically follows that the jury would not be

required to find that the defendant was convicted of the primary offense as an element of

a section 12022.1 enhancement. "At the trial of a section 12022.1 enhancement, the jury

only determines whether the enhancement is proven. The court determines later, at the

                                              8
time of sentencing, whether the enhancement can be imposed." (People v. Smith (2006)

142 Cal.App.4th 923, 935.)

       The Legislature also saw fit to address the possibility that a conviction for a

primary offense could be reversed. To this end, subdivision (g) of section 12022.1

provides in part: "If the primary offense conviction is reversed on appeal, the

enhancement shall be suspended pending retrial of that felony. Upon retrial and

reconviction, the enhancement shall be reimposed."

       In summary, the on-bail enhancement found in section 12022.1 is available only

where a defendant commits a secondary offense while released from custody on a

primary offense. (§ 12022.1, subd. (b).) Further, the statute addresses the timing of a

defendant's conviction for the primary offense. Even if the defendant has not been tried

on and convicted of the primary offense, the prosecutor is to plead in the indictment or

information facts to support the on-bail enhancement. (§ 12022.1, subd. (c).) If the

secondary offense is tried and a conviction of the defendant obtained prior to a trial or

sentencing on the primary offense, the court stays the on-bail enhancement until

sentencing on the primary offense. However, if the defendant is acquitted of the primary

offense, the court shall permanently stay the on-bail enhancement. (§ 12022.1,

subd. (d).) If a conviction of the primary offense is reversed on appeal, the court must

suspend the on-bail enhancement pending retrial of the primary offense. If a subsequent

conviction is obtained, the court shall reimpose the enhancement. (§ 12022.1, subd. (g).)

In drafting section 12022.1, it is clear the Legislature intended the statute to be applied



                                              9
fluidly where the court could impose, stay, suspend, and reimpose the enhancement

depending on the status of the primary offense.

       The People emphasize that none of the subdivisions of section 12022.1 apply to

Moses here. As such, they assert that section 12022.1 does not support Moses's position.

We agree that the Legislature did not contemplate and section 12022.1 does not address

the situation presented here, where the electorate approved the wholesale reduction of a

certain class of felony offenses, one of which is Moses's primary offense for purposes of

his on-bail enhancement. Yet, we cannot ignore the clear intent of section 12022.1,

which requires the existence of a primary offense that is a felony. Indeed, that is the

foundation on which the on-bail enhancement is based. And, in regard to Moses, that

foundation no longer exists. This fact, in the context of the statutory language and

legislative intent that the trial court lithely apply section 12022.1 depending upon the

status of the primary felony, leads us to conclude that the trial court did not error in

staying Moses's two-year enhancement under section 12022.1.

       Nevertheless, the People contend that staying Moses's on-bail enhancement

undermines the purpose of section 12022.1, which is to penalize recidivist conduct. We

agree that "the purpose and intent behind a section 12022.1 enhancement, generally

speaking, is . . . to penalize recidivist conduct with increased punishment." (People v.

McClanahan (1992) 3 Cal.4th 860, 868 (McClanahan); italics omitted.) Moreover, 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." (People v. Watkins (1992) 2 Cal.App.4th 589, 593.)

                                              10
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 Moses no longer has a conviction for a qualifying

primary offense. Thus, he is no longer the type of felony recidivist at whom the statute is

aimed. Accordingly, we do not agree with the People that a stay of Moses's on-bail

enhancement undermines the statute's purpose. Put differently, section 12022.1 is not

aimed at a defendant like Moses.

       The People additionally contend that if we affirm the trial court's order to stay

Moses'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

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


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?"
                                            11
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 Moses's

primary offense is that it is a misdemeanor. Because the primary offense is not a felony,

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 Moses. 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 Moses because the on-bail enhancement under section 12022.1 no longer


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, Moses moved to redesignate only his primary offense to a
misdemeanor under Proposition 47. Two months later, Moses moved to have the court
stay his on-bail enhancement pertaining to his secondary offense.
                                              12
applied to Moses. 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 Moses's unauthorized sentence, which

included an improper two-year enhancement. The trial court did not err.4

                                      DISPOSITION

       The order is affirmed.



                                                                             HUFFMAN, J.

WE CONCUR:



             BENKE, Acting P. J.



                      HALLER, J.




4      In a footnote in their opening brief, the People point out that Moses's original
sentence was illegal under section 12022.1, subdivision (e) because his sentence for the
secondary offense should have been ordered to run consecutively to the sentence on the
primary offense not concurrently as ordered by the trial court. The People are correct.
(§ 12022.1, subd. (e).) However, because we determine that section 12022.1 does not
apply to Moses, the People's contention is moot. Further, even if we were to remand this
matter back for the trial court to resentence Moses to consider the People's position, in
doing so, the trial court would be required to sentence Moses anew and would need to
consider that the primary offense is no longer a felony, and therefore, the on-bail
enhancement would not apply. In other words, the result would be the same whether we
affirm the trial court's order or remand back to the trial court for resentencing consistent
with this opinion.
                                              13
