Filed 8/19/15
                            CERTIFIED FOR PUBLICATION




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                             THIRD APPELLATE DISTRICT
                                           (Butte)
                                            ----




THE PEOPLE,                                                     C078257

                Plaintiff and Appellant,              (Super. Ct. No. CM042230)

        v.

COLETTE JEAN EANDI,

                Defendant and Respondent.




      APPEAL from a judgment (order of probation) of the Superior Court of Butte
County, James F. Reilley, Judge. Vacated and remanded with directions.

      Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Appellant.

      Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Respondent.


        A complaint filed on November 4, 2014, alleged that defendant Colette Jean Eandi
willfully failed to appear in August 2014 on a felony charge of possessing a controlled



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substance (Pen. Code, § 1320, subd. (b))1 and alleged an enhancement for committing
this offense while released from custody on her own recognizance (§ 12022.1).
Defendant entered a plea of no contest the next day in exchange for dismissal of the
enhancement with a Harvey2 waiver; the trial court also dismissed the underlying
possession charge in case No. CM041535 (Health & Saf. Code, § 11377, subd. (a)).
Defendant was referred to probation for a presentence report.

       By operation of a November 2014 initiative, defendant’s crime of drug possession
had been reduced to a misdemeanor at the time of its dismissal on November 5, 2014.
(Health & Saf. Code, § 11377 [see Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
text of Prop. 47, § 13, p. 73].) On this basis, at sentencing on December 3, 2014, the trial
court concluded that it should amend the charge of a felony violation of section 1320,
subdivision (b) for failure to appear on felony charges to a misdemeanor violation of
section 1320, subdivision (a) for failure to appear on misdemeanor charges. (The trial
court indicated it would be “inclined” to exercise discretion under section 17 to reach the
same result under the original felony charge, it being a so-called “wobbler.”)3 The trial
court suspended imposition of sentence and granted probation to defendant subject to
various conditions. The People filed a timely notice of appeal. (§ 1238, subd. (a)(6).)
Defendant did not cross-appeal from the order of probation.




1 Undesignated statutory references are to the Penal Code.

2 People v. Harvey (1979) 25 Cal.3d 754.

3 “Wobbler” is the jargon term in criminal law for an offense that can be punished either
as a felony or a misdemeanor. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091
(Rivera).)


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       The People contend the trial court’s action was unauthorized. We agree, and we
will thus vacate the order of probation, allowing the trial court to exercise its discretion
on remand to reduce the offense to a misdemeanor pursuant to section 17 or not.4

       The facts underlying the offense are immaterial. For this reason, simply for
context, we note the probation report stated defendant was found with methamphetamine
in her possession in her home in June 2014. She failed to appear for her arraignments in
July and August 2014. The trial court issued an arrest warrant. The warrant was served
and defendant was taken into custody on October 31, 2014. Defendant told the probation
officer that her failure to appear stemmed from transportation difficulties because she
does not drive.

                                       DISCUSSION

       Section 1320 was not among the offenses explicitly included in the text of the
Proposition 47 initiative or the analysis of the Legislative Analyst. (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) pp. 35-36, 71-73.) We are thus not concerned here with
the lack of any direct effect of the initiative on defendant’s conviction for failure to
appear, contrary to the manner in which the People have framed their appeal.

       Failure to appear is a crime of deceit that is premised on a defendant’s breach of a
contractual agreement. (People v. Jenkins (1983) 146 Cal.App.3d 22, 28.) Because it is
the breach of this promise that is the gist of the offense, the ultimate disposition of the
underlying offense is immaterial. (Cf. People v. Walker (2002) 29 Cal.4th 577, 583 [it is



4 Although this would appear at first blush to be an idle remand, it must be remembered
that this court’s role is to review a trial court’s exercise of discretion and not to exercise
this discretion in the first instance. (See Collateral Loan & Secondhand Dealers Assn. v.
County of Sacramento (2014) 223 Cal.App.4th 1032, 1041, fn. 7.) The trial court did not
irrevocably commit itself to this course of discretion, nor elucidate the basis for making
this discretionary sentencing choice.


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the legislative view that punishment for jumping bail under section 1320.5 is proper
regardless of the disposition of the underlying offense].) As a result, the true question is
whether the initiative 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 August
2014 became a misdemeanor as a matter of law retroactively, thereby negating a
necessary statutory element of a failure to appear on a felony charge: having been
“charged with . . . the commission of a felony” (§ 1320, subd. (b), italics added). We
think not.

       The initiative sought to reduce punishment for six specific drug and theft offenses
(including the underlying possession offense at issue here), reducing them from straight
felonies and wobblers to misdemeanors. It achieved this goal in two different ways. To
provide prospective relief for pending and future convictions, the initiative amended the
punishment under these statutes as of November 5, 2014, for eligible defendants (those
without prior convictions under § 667, subd. (e)(2)(C)(iv)). (§ 1170.18, subd. (i).) It also
provided for retrospective relief: Eligible defendants who presently were serving a
sentence for a conviction under one of the six specified statutes can file petitions for
resentencing as misdemeanors under the present versions of the statute if doing so would
not present an unreasonable risk of danger to public safety (§ 1170.18, subds. (a), (b), (c),
(i)); as for eligible defendants who had completed a felony sentence, they can file
petitions for redesignation of convictions as misdemeanors (id., subds. (f), (g), (i)). After
resentencing or redesignation, a conviction is “considered a misdemeanor for all
purposes” (id., subd. (k)). (Rivera, supra, 233 Cal.App.4th at pp. 1092-1093.)

       Notably, nothing in the express language of the initiative or its ballot materials
reflects any intent to provide retroactive collateral relief as a matter of law in the absence
of a petition in a prosecution for a different offense premised upon a former felony
violation of the affected statutes. At the time of defendant’s failure to appear in August


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2014, there was a felony charge pending against defendant for which she 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.5 Prior
felony convictions remain such absent a petition; we do not discern, nor does defendant
provide, 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.

       This is true notwithstanding the declaration of misdemeanor status for all purposes
in section 1170.18, subdivision (k).6 In the context of appellate jurisdiction over felony
appeals, Rivera (and its companion case, People v. Lynall (2015) 233 Cal.App.4th 1102,
discussing more succinctly a slightly different procedural context) found this language—
which parallels the language from section 17 with respect to the reduction of wobblers to
misdemeanors—should be interpreted in the same way as being prospective, from that
point on, and not for retroactive purposes.7 (Rivera, supra, 233 Cal.App.4th at p. 1100.)


5 In People v. Noyan (2014) 232 Cal.App.4th 657, 672, we noted the explicit provision
for the petition procedure precluded application of the retroactive provisions to a pending
appeal. (The Supreme Court has pending an analogous issue with respect to the petition
procedure in § 1170.126 (People v. Conley, review granted Aug. 14, 2013, S211275, case
fully briefed May 7, 2014]).)
6 Section 1170.18, subdivision (k) provides in relevant part: “Any felony conviction that
is recalled and resentenced under subdivision (b) or designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all purposes . . . .”
7 Among the most directly relevant of this precedent under section 17 is People v.
Moomey (2011) 194 Cal.App.4th 850, which rejected an assertion that assisting a second
degree burglary after the fact does not establish the necessary element of the commission
of an underlying felony because the offense is a wobbler: “Even if the perpetrator was
subsequently convicted and given a misdemeanor sentence, the misdemeanant status
would not be given retroactive effect.” (Id. at p. 857.) Thus, at the time the defendant
committed the act of assistance, the underlying offense was a felony. (Id. at p. 858.)


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As a result, the felony status of an offense at the time charges were filed with the trial
court remained unchanged notwithstanding the November 2014 initiative enactment,
conferring jurisdiction on the Court of Appeal. (Rivera, at pp. 1094-1095, 1099-1101.)
Rivera similarly remarked on the absence of any indication that the electorate wished to
venture outside the expressed context of directly reducing future and past punishment for
convictions under the six included offenses. (Id. at p. 1100.)

       The trial court therefore lacked authority to amend the complaint in case
No. CM042230 to redesignate the offense as involving failure to appear on a pending
misdemeanor charge.8 We must accordingly set aside the order of probation and remand
for further proceedings on the original complaint, at which time the trial court may, if still
inclined, exercise discretion to reduce the failure to appear violation to a misdemeanor.

                                      DISPOSITION

       The judgment (order of probation) is vacated, and we remand the matter for the
trial court to proceed on the original felony complaint. (CERTIFIED FOR
PUBLICATION)


                                                         BUTZ                  , J.

We concur:



      HULL                   , Acting P. J.



      DUARTE                 , J.


8 We recently reached a similar conclusion in a different procedural context in People v.
Perez (July 31, 2015, C078169) ___ Cal.App.4th ___ [2015 Cal.App. Lexis 666].

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