Filed 2/2/16 Alcantar v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



DANIEL ANSELMO ALCANTAR,

         Petitioner,                                                     E063610

v.                                                                       (Super.Ct.No. INF1302668)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.


         ORIGINAL PROCEEDINGS; petition for writ of mandate. Charles Everett

Stafford, Jr., Judge. Petition is granted.

         Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public

Defender, for Petitioner.

         No appearance for Respondent.

         Michael. A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Real Party in Interest.


                                                             1
                                 STATEMENT OF FACTS

       In 2014, petitioner Daniel Anselmo Alcantar was incarcerated in a California

corrections facility. He was charged with both possession of a controlled substance and

bringing or possessing controlled substances in prison. (Health & Saf. Code, § 11377;

Pen. Code, § 4573.)1

       By plea bargain, Alcantar entered a plea of guilty to the Health and Safety Code

violation, admitted having suffered a prior strike (§ 667, subds. (b)-(i)) and agreed to the

middle term of two years, doubled to four under the Three Strikes law. The prior prison

term allegations under section 667.5 were dismissed.

       Later in the year, the electorate enacted Proposition 47, which included

section 1170.18. In brief, that statute notes that the enacted proposition reduced specified

offenses to misdemeanors, and provides that persons “serving a sentence for a conviction,

whether by trial or plea . . .” (italics added) which was a felony at the time of the

conviction, but which is now a misdemeanor, may apply for resentencing as

misdemeanants. If the person meets the qualifications set out in the statute, resentencing

is the presumptive result.2

       1 All subsequent statutory references are to the Penal Code unless otherwise
specified.

       2   The relevant text of the statute is “(a) A person currently serving a sentence for
a conviction, whether by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under the act that added this section (“this act”) had this act been in
effect at the time of the offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
                                                                   [footnote continued on next page]


                                              2
        Alcantar therefore filed a petition for recall and resentencing, as his conviction for

violating Health and Safety Code section 11377 is covered by section 1170.18. The

People objected, arguing that to sentence Alcantar as a misdemeanant would deprive the

People of their part of the bargain, and also pointing out that the alternative charge under

Penal Code section 4573 would not have entitled Alcantar to be resentenced if his plea

had been taken to that charge.

        After argument on both sides, during which several possible approaches to the

problem were discussed, the trial court reached a conclusion which is not entirely clear

from the transcript of the hearing. It appears, however, that the trial court declined to

resentence petitioner, and that petitioner’s options would be either to serve out his term as

a felony (that is, withdraw his application under section 1170.12) or, if he asserted a right

to resentencing, the People would be entitled to reinstate all charges and the matter would

essentially go back to square one.




[footnote continued from previous page]
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act. [¶] (b) Upon receiving a petition under
subdivision (a), the court shall determine whether the petitioner satisfies the criteria
in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the
petitioner’s felony sentence shall be recalled and the petitioner 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.”


                                               3
       Petitioner accordingly sought review from this court. We will grant his petition

and direct the trial court to resentence him.3

                                       DISCUSSION

       Much of the heavy lifting has been done by the First District in a case certified for

publication only two days before the hearing in this matter, and to that extent it only

remains for us to decide if we agree with the decision. We do.

       In T.W. v. Superior Court (2015) 236 Cal.App.4th 646 (T.W.) a minor who had

been charged with both robbery (§ 211) and receiving stolen property (§ 496) admitted

the latter offense and the robbery allegation was dismissed. (T.W., at p. 649.) The minor

later moved for modification under Proposition 47 and the trial court denied the request.

The Court of Appeal had no difficulty in concluding that the minor qualified under the

plain language of section 1170.18. After citing to the general rules on statutory

construction (see People v. Briceno (2004) 34 Cal.4th 451, 459) the court commented

that “section 1170.18 clearly and unambiguously states, ‘A person currently serving a

sentence for a conviction, whether by trial or plea’ of eligible felonies may petition for

resentencing to a misdemeanor.” (T.W., at p. 652.) As receiving stolen property had

been reclassified under Proposition 47, the minor was eligible.


       3  We are aware of the recent decision by Division 5 of the Second District in
Harris v. Superior Court (2015) 242 Cal.App.4th 244, petition for review pending,
S231489, filed December 28, 2015, in which that court concluded that a defendant who
seeks resentencing under section 1170.18 repudiates the plea bargain, entitling the People
to reinstate all charges. Because a petition for review is pending at this time, we do not
discuss the decision in detail other than to note our disagreement.


                                                 4
       The court in T.W. referred to the intent behind the adoption of Proposition 47 to

reduce penalties for nonserious property and drug offenses and to free up prison space for

serious offenders. With respect to the argument made by the People here, that the result

deprives the People of the benefit of the bargain, the court merely noted in a footnote that

parties to a plea bargain must accept that the bargain may be affected by future changes

in the law. (Doe v. Harris (2013) 57 Cal.4th 64, 66.)4

       We agree with the court that decided T.W. that the language of section 1170.18 is

clear and controls the result. The drafters obviously understood that convictions may

result from a contested jury trial or from a negotiated plea, and chose to make no

distinction between the two for the purposes of eligibility where the conviction entered

was for an offense now constituting a misdemeanor. The trial court’s apparent effort to

craft a remedy acknowledging the People’s grievance was imaginative and not

unreasonable. However, it was also unauthorized by statute and constituted an improper

judicial alteration of the statutory scheme.


       4 Usually, of course, this rule is applied to the detriment of the defendant. In Doe
v. Harris, for example, changes in the law subsequent to his plea made the defendant’s
obligations under sex offender registration more onerous and/or invasive. In People v.
Gipson (2004) 117 Cal.App.4th 1065, 1068 the defendant’s plea subjected him to
increased penalties as a “strike” offender due to subsequent legislation. And in In re
Lowe (2005) 130 Cal.App.4th 1405, 1425, to give one further example, the Governor’s
new power to review grants of parole under section 3041.2 was held to apply to an
inmate who had entered a plea of guilty before that section was enacted.
       As the cases cited by the People demonstrate, this unsympathetic approach is
sometimes abandoned when it is the People that are left holding the bag after a change in
the law. However, our decision is not governed by any sense of “sauce for the goose is
sauce for the gander,” but by the language of the statute before us.


                                               5
       The People point out that other courts have sometimes authorized reinstatement of

proceedings at square one when subsequent decisions or legislation resulted in the

evisceration of a plea bargain. They rely first on People v. Collins (1978) 21 Cal.3d 208

(Collins), in which the defendant, charged with multiple offenses, pleaded guilty to oral

copulation under the then-effective version of Penal Code section 288a. Prior to

sentencing, however, that statute was repealed and re-enacted, with the new statute

prohibiting only forcible oral copulation. The holding of the court was that the sentence

was improper because by the time sentence was imposed, defendant’s conduct was not a

crime. However, defendant was not entitled to escape all penal vulnerability because the

People’s consent to the bargain was premised on the potential of incarceration.

Accordingly, the People were entitled to reinstate all charges with the proviso that his

potential sentence could not exceed that previously imposed.5 (Collins, at pp. 215-216.)

       The People also cite In re Blessing (1982) 129 Cal.App.3d 1026, in which an

agreed sentence, as it turned out due to subsequent judicial decisions, was illegally

computed. Following Collins, the court held that (1) petitioner could not be sentenced to

more than the agreed term, (2) the People could elect to reinstate charges so that the

agreed term could, in theory, be legally reached if the appropriate convictions were

       5  At oral argument, petitioner argued that there is no question of an unfair
unilateral change in the parties’ bargain, construed as a contract, because the prosecution,
legally identified as “the People,” is the same legal entity as the people of the electorate
who determined to reclassify petitioner’s offense and therefore cannot complain of the
changes. While there is some intellectual appeal to this argument, it does not help to
distinguish this case from Collins, in which the Legislature—the elected representatives
of the electorate—determined to decriminalize the defendant’s conduct.


                                             6
entered, and (3) if the People did not elect to reinstate charges, the illegal four years

would simply be lopped off defendant’s term.

       However, neither of these cases involved a new statutory procedure broadly

applicable to defendants but which does not include exceptions or alternatives.

       In our view the distinction between T.W., People v. Berry (2015) 235 Cal.App.4th

1417, 1426-1428, review denied July 22, 2015, this case, and the cases cited by the

People is that the statutes involved in the cases on which we rely, and this case,

specifically provide that the ameliorative provisions apply to convictions suffered by

plea. We cannot assume that the drafters and the electorate were ignorant of the fact that

convictions suffered by plea often involve negotiation, compromise, and the dismissal of

charges.6 We therefore must assume that the lack of a remedy such as that fashioned in

Collins was intentional.7

       6  In some cases a plea may foreclose the filing of additional charges or allegations
if the People, as part of the bargain, agree not to do so.

       7  The result in T.W. and this case is also consistent with People v. Berry, supra,
235 Cal.App.4th at pp. 1426-1428, which involved a “third strike” defendant seeking
resentencing under section 1170.126. Analogous to this case, the defendant had been
charged with offenses and allegations which would have made him ineligible for
resentencing, but his plea was only to an offense which made him eligible. The court in
Berry refused to allow the trial court to go beyond the current conviction and examine the
entire record for evidence of disqualification. The court adhered strictly to the language
of the statute, which allowed “third strikers” to be resentenced as “second strikers” if
their current sentence would have been eligible for the more lenient provisions of
Proposition 36 had they been originally sentenced after the adoption of that initiative.
That enactment, of course, reserved indeterminate life sentences for “third strikers”
whose current offense falls into one of several specified more serious categories. The
Berry court holds that if the current conviction is for an eligible offense, then the
defendant is eligible. Period.


                                               7
       The People then rely on People v. Arata (2007) 151 Cal.App.4th 778 (Arata) to

support the claim that for Alcantar to serve a prison term as a felon was in fact an element

of the agreement. This reliance is misplaced. In Arata, the defendant was arguably

affected by a change to Penal Code section 1203.4 enacted subsequent to his plea, which

made him ineligible to seek to have his case dismissed once he successfully completed

probation. The court held that the new statute could not be applied to him because, under

the specific circumstances of the case, it appeared that the possibility of expungement and

dismissal was factually a motivation for the defendant’s plea. (Arata, at p. 787.) We

note that in Doe v. Harris, supra, 57 Cal.4th at p. 73 the court noted Arata, distinguished

it, and declined to comment on it.8

       Furthermore, the argument once again proves too much. The People could always

argue that defendant’s submission to a felony conviction and prison term was an implicit

term of the bargain.9 It might even often be true, at least to the extent that the People

assumed this would be the result. But to allow the People to reinstate charges as a

remedy for this implicit “breach of the bargain” would, again, eviscerate section 1170.18.




       8 Instead, in Doe v. Harris the court cited with approval a case very similar to
Arata, People v. Acuna (2000) 77 Cal.App.4th 1056, 1062, in which the court found that
the defendant was not entitled to relief because the availability of expungement was not
made expressly a part of the bargain.

       9  Of course if the People had known that Proposition 47 was looming, they might
have insisted that defendant expressly waive any rights which might attach under that
initiative. We do not decide the effect of such a waiver.


                                              8
The only defendants who could take advantage of the statute would be those as to whom

no other charges had been filed or were potentially available for filing.

       The mandate of Proposition 47 is straightforward: to resentence those who

suffered relatively minor felony convictions as misdemeanants with the effect of reducing

their sentences. The voters made no provision for redress of any case of “unfairness” to

the People. For the courts to modify the enactment by creating classes of defendants not

entitled to the full benefit of the statute would be improper.10 Furthermore, we would

hesitate to find that the electorate contemplated the return of potentially thousands of

cases to the overburdened trial courts for further proceedings.

       Finally, the People make two arguments which may be very briefly considered and

rejected. First, they cast their basic argument in the light that by seeking resentencing,

defendant himself has breached the plea bargain. But where the electorate has offered a

benefit for which defendant qualifies, he cannot be charged with any breach for seeking

it. It was not an implicit term of the bargain that he not pursue any relief for which he

later became eligible, and it certainly was not an express term.

       The People then claim that defendant failed to carry his burden of showing

eligibility. They argue that defendant must prove that his actual conduct in the matter

constituted only a misdemeanor. We agree that the defendant would bear the burden of

showing eligibility, but the statute requires only that the defendant have been convicted


       10
        Nothing in this opinion should be taken as an affirmative endorsement of the
wisdom of Proposition 47 as written.


                                              9
of a qualifying offense. The People’s contention, in fact, borders on the absurd. They

apparently contemplate mini-trials in every matter brought under section 1170.18, with

witnesses and evidence brought forth in an effort to prove that, for example, the

defendant “only” possessed contraband, and did not possess it for sale, or transport it,

or furnish it to a minor, etc. (See, e.g., Health & Saf. Code, §§ 11378, 11379,

11380.) Similarly, a person convicted of petty theft under section 666—a reducible

offense—would have to prove that he or she did not actually commit a burglary, or a

robbery, or grand theft—indeed, the list of felonies which might be related to a theft is

almost endless. This view is not only unsupported by the simple language of the statute,

but utterly unworkable.11

       In summary, we follow T.W. Alcantar was convicted of an offense which is

eligible for reclassification and resentencing. He was not convicted of any ineligible

offense. The People must accept the will of the electorate.

                                      DISPOSITION

       The petition for writ of mandate is granted. Let a peremptory writ of mandate

issue directing the Superior Court of Riverside County to vacate its order insofar as it

authorizes the refiling of charges, to find defendant eligible under subdivision (b) of




       11 We do not read the People’s argument as suggesting that a defendant must
prove that he did not commit any form of non-eligible conduct at any time roughly
connected to the conviction offense, but, in fact, the limits of the People’s position are not
clear.


                                             10
section 1170.18, and to proceed to the issue of whether defendant poses an “unreasonable

risk of danger to public safety.”

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       The previously ordered stay is lifted.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 HOLLENHORST
                                                                                             J.
We concur:



RAMIREZ
                          P. J.



MILLER
                             J.




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