Filed 10/21/15 P. v. Fowler 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                             C078363

                   Plaintiff and Appellant,                                (Super. Ct. No. CM041808)

         v.

TIMOTHY JOSEPH FOWLER, JR.,

                   Defendant and Respondent.




         The People appeal the trial court’s order reducing defendant Timothy Joseph
Fowler, Jr.’s felony failure to appear to a misdemeanor under the Safe Neighborhoods
and Schools Act (Proposition 47). They contend this reduction was an improper
expansion of Proposition 47. We agree and shall reverse.

                                     PROCEDURAL BACKGROUND

         The Butte County District Attorney charged defendant with felony possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor child


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abuse (Pen. Code, § 273a, subd. (b)).1 Defendant was released on his own recognizance.
On July 23, 2014, defendant failed to appear on those charges. On August 20, 2014, the
district attorney filed a felony complaint alleging defendant had failed to appear on a
felony charge of possession of a controlled substance. (Pen. Code, § 1320, subd. (b).)2

       Following the passage of Proposition 47 in November 2014, the trial court reduced
both the controlled substance conviction and the failure to appear charge to
misdemeanors. Defendant then pleaded guilty to all three misdemeanor counts, including
misdemeanor failure to appear. The trial court granted defendant four years of formal
probation. The People filed a timely appeal. (§ 1238, subd. (a)(1), (5) & (6).) Defendant
did not file a respondent’s brief.

                                      DISCUSSION

       The People contend the trial court’s action was unauthorized, as it improperly
expanded the scope of Proposition 47. We agree.

       We recently decided this precise issue in People v. Eandi (2015) 239 Cal.App.4th
801 (Eandi) (petn. for review pending, petn. filed Sept. 22, 2015, S229305) and People v.
Perez (2015) 239 Cal.App.4th 24, 32 (petn. for review pending, petn. filed Sept. 3, 2015,
S229046). We recognize these decisions are not yet final, but continue to find their
reasoning persuasive and will follow it here.
       Proposition 47 explicitly reduced a number of specific offenses from felonies to
misdemeanors. Section 1320 is not among those offenses expressly included in the text
of Proposition 47. (Eandi, supra, 239 Cal.App.4th at p. 804.) “Failure to appear is a
crime of deceit that is premised on a defendant’s breach of a contractual agreement.


1 The facts underlying defendant’s other offenses are not relevant to any issue raised on
appeal, and are therefore not recounted here.
2 Undesignated statutory references are to the Penal Code.



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[Citation.] Because it is the breach of this promise that is the gist of the offense, the
ultimate disposition of the underlying offense is immaterial. [Citation.] As a result, the
true question is whether [Proposition 47] has a collateral retroactive effect such that the
pending felony drug possession charge at the time of the breach of promise of failure to
appear in [July 2014] became a misdemeanor as a matter law retroactively, thereby
negating a necessary statutory element of failure to appear on a felony charge: having
been ‘charged with . . . the commission of a felony.’ ” (Eandi, at p. 805.) Nothing in
either the express language of the initiative or its ballot materials reflects any intent to
provide retroactive collateral relief as a matter of law. (Ibid.) In July 2014, when
defendant failed to appear, there was a felony charge pending against him for which he
had promised to appear. “The initiative did not purport to exercise a power to go back in
time and alter the felony status of every affected offense in every context. It merely
offered the possibility of a reduction in current punishment for a conviction or a
redesignation of the status of completed punishment for a conviction on a petition for a
recall of sentence. Prior felony convictions remain such absent a petition; we do not
discern . . . any cogent reason why a then pending felony charge should transform to a
misdemeanor as a matter of law for purposes of its collateral effect on a different
offense.” (Eandi, at pp. 805-806, fn. omitted.) “[T]he felony status of an offense at the
time charges were filed with the trial court remained unchanged notwithstanding the
November 2014 enactment [of Proposition 47] . . . .” (Id. at p. 806.)

       The trial court therefore lacked authority to amend the felony complaint to
redesignate the offense as involving failure to appear on a pending misdemeanor charge.
We must set aside the order of probation and remand for further proceedings.




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                                     DISPOSITION

       The judgment (order of probation) is vacated. The matter is remanded to the trial
court for further proceedings on the charge of failure to appear on a felony charge.




                                                       BUTZ                  , Acting P. J.



We concur:



      MAURO                 , J.



      RENNER                , J.




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