Filed 9/30/16 P. v. Foster CA4/1
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                    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

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 Elvin Vincent Foster, Jr. received

under section 12022.1, subdivision (b).

                   FACTUAL AND PROCEDURAL BACKGROUND

       On April 11, 2012, Foster stole $45 dollars from a woman. Two days later, he was

arraigned on a felony complaint charging him with grand theft from person (§ 487,

subd. (c)) and alleging a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12). After his bail

was set, Foster was released from custody on bond. On November 26, 2012, Foster

pleaded guilty to grand theft from person. This case was numbered SCE319954.

       Between May 3 and July 13, 2012, Foster committed a series of 10 robberies. He

ultimately pled guilty to these robberies (§ 211) and admitted 10 on-bail enhancements



1      Statutory references are to the Penal Code unless otherwise specified.
                                              2
(§ 12022.1, subd. (b)), a serious prior felony (§§ 667, subd. (a)(1), 668, 1192.7,

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.

                                             3
                                       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).)

                                              4
       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.

                                             5
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

                                               6
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

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

                                                7
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

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

and convicted on 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

                                              8
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

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

Foster here. As such, they assert that section 12022.1 does not support Foster'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 Foster'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 Foster, 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 Foster's two-year enhancement under section 12022.1.

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

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

                                              9
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.)

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

                                             10
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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