Filed 5/6/16 P. v. Parks 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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




THE PEOPLE,                                                                                  C078737

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF121420A)

         v.

GRANT PARKS,

                   Defendant and Appellant.




         Defendant Grant Parks appeals from the trial court’s denial of his Penal Code
section 1170.181 (Proposition 47) petition for resentencing on his conviction for felony
failure to appear. (§ 1320, subd. (b).) He contends that the conviction should have been
reduced to a misdemeanor because the offense underlying the failure to appear charge
had been reduced to a misdemeanor pursuant to section 1170.18. However, section




1   Undesignated statutory references are to the Penal Code.

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1170.18 does not apply to a felony failure to appear. The section was not intended to,
and does not, provide for collateral retroactive effect as to offenses not specifically
covered by it. We shall affirm the judgment.
                                      BACKGROUND
       In March 2012, defendant was arrested after leaving a Food 4 Less store without
paying for various items that were worth a total of $23.14. He pleaded guilty to petty
theft with a prior (§ 666) and admitted a prior prison term (§ 667.5, subd. (b)) in case
No. SF119845A. Defendant did not appear for sentencing in August 2012, and he
subsequently pleaded guilty to felony failure to appear and admitted a strike allegation
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in case No. SF121420A. He was
sentenced to five years eight months in state prison. Defendant appealed the convictions,
but later abandoned his appeal.
       Defendant subsequently filed a section 1170.18 petition as to the petty theft with a
prior and failure to appear convictions. The trial court denied the petition as to the failure
to appear offense and, on the People’s motion, modified the petty theft with a prior
offense to shoplifting (§ 459.5), and sentenced him to 10 days in jail with 10 days of
credit on the shoplifting count.
                                       DISCUSSION
       Defendant contends that the reduction to a misdemeanor of the offense underlying
his felony to appear conviction mandates reducing that conviction to a misdemeanor as
well.2 We disagree.
       The passage of Proposition 47 (the Act) created section 1170.18, which provides
for any defendant “currently serving a sentence for a conviction . . . of a felony or



2 This issue is currently before the California Supreme Court. (See People v. Eandi
(2015) 239 Cal.App.4th 801, review granted Nov. 18, 2015, S229305; People v. Perez
(2015) 239 Cal.App.4th 24, review granted Nov. 18, 2015, S229046.)

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felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it]
been in effect at the time of the offense [to] petition for a recall of sentence before the
trial court that entered the judgment of conviction in his or her case to request
resentencing . . .” under the statutory framework as amended by the passage of
Proposition 47. (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 14, pp. 73-74.) “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, except that such resentencing shall
not permit that person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).)
       The crime of failure to appear is a misdemeanor or felony if the defendant failed to
appear on a felony charge, but is a misdemeanor if the defendant failed to appear for a
misdemeanor charge. (§ 1320, subd. (b).) Defendant asserts that the “all purposes”
language in subdivision (k) mandates the retroactive application of section 1170.18,
which in turn requires that the failure to appear conviction be reduced to a misdemeanor
since the underlying petty with a prior charge was reduced to a misdemeanor pursuant to
section 1170.18. Finally, he claims that retroactive application of section 1170.18 is
consistent with the rule that laws reducing punishment for crimes are presumptively
retroactive (see In re Estrada (1965) 63 Cal.2d 740 (Estrada)) and with the Act’s primary
purpose.
       This is not a case of the direct application of the Act, as failure to appear is not one
of the offenses included in its text or the analysis of the Legislative Analyst. (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) pp. 35-36, 71-73.) The Act achieves its
intended purpose, the reduction of certain crimes from felonies or wobblers to
misdemeanors, in two ways. It does so prospectively by reducing the punishment for the
covered crimes as of its effective date. Retroactive application is limited to petitions for

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resentencing by prisoners serving a sentence for one of the six enumerated crimes
covered by the Act. (§ 1170.18, subds. (a)-(c), (i).) Persons who completed the sentence
for one of the enumerated offenses could petition to have the prior conviction designated
as a misdemeanor. (§ 1170.18, subds. (f), (g), (i).)
       Because the crime of failure to appear is premised on defendant’s breach of
contract (People v. Jenkins (1983) 146 Cal.App.3d 22, 28), whether a defendant is
convicted of the underlying offense is immaterial to the disposition of the failure to
appear charge. (Cf. People v. Walker (2002) 29 Cal.4th 577, 583 [it is the legislative
view that punishment for jumping bail under § 1320.5 is proper regardless of the
disposition of the underlying offense].) Therefore, the real question here is whether the
Act provides collateral retroactive relief transforming the pending felony petty theft with
a prior charge to a misdemeanor at the time defendant did not appear for sentencing on
that crime in August 2012.
       Subdivision (k) of section 1170.18 was interpreted in the context of felony
jurisdiction over criminal appeals in People v. Rivera (2015) 233 Cal.App.4th 1085
(Rivera). Rivera found that section 1170.18, subdivision (k), which parallels the
language from section 17 regarding the reduction of wobblers to misdemeanors, 3 should
be interpreted in the same way as being prospective, from that point on, and not for
retroactive purposes. (Rivera, at p. 1100; see also People v. Moomey (2011)
194 Cal.App.4th 850, 857 [rejecting 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



3  Section 17, subdivision (b) states in pertinent part: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for all purposes under the following
circumstances . . . .”

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convicted and given a misdemeanor sentence, the misdemeanant status would not be
given retroactive effect”].) The court in Rivera accordingly concluded that the felony
status of an offense charged as a felony did not change after the Act was passed, thereby
conferring jurisdiction on the Court of Appeal.4 (Rivera, at pp. 1094-1095, 1099-1101.)
We see no reason to depart from Rivera. Although Rivera addressed section 1170.18,
subdivision (k) in a different context, its analysis of subdivision (k) is equally relevant
here.
        The Supreme Court reached a similar conclusion in the context of enhancements
when interpreting section 17 in People v. Park (2013) 56 Cal.4th 782 (Park). In Park,
the Supreme Court held that a felony conviction properly reduced to a misdemeanor
under section 17, subdivision (b) could not subsequently be used to support an
enhancement under section 667, subdivision (a). (Park, at p. 798.) Applying the
reduction to eliminate an enhancement would be a retroactive application, which is
impermissible under both section 17 and the Act. The distinction between retroactive and
prospective application was recognized by the Supreme Court in Park. “There is no
dispute that, under the rule in [prior California Supreme Court] cases, [the] defendant
would be subject to the section 667[, subdivision] (a) enhancement had he committed and
been convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor.” (Park, at p. 802.) Retroactive versus prospective application was also
invoked by the Supreme Court in distinguishing cases cited by the Attorney General.



4 Rivera also noted the absence of any evidence that the voters wanted to go beyond
directly reducing future and past punishment for convictions under the six included
offenses. (Rivera, supra, 223 Cal.App.4th at p. 1100 [“Nothing in the text of Proposition
47 or the ballot materials for Proposition 47--including the uncodified portions of the
measure, the official title and summary, the analysis by the legislative analyst, or the
arguments in favor or against Proposition 47--contains any indication that Proposition 47
or the language of section 1170.18, subdivision (k) was intended to change preexisting
rules regarding appellate jurisdiction”].)

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“None of the cases relied upon by the Attorney General involves the situation in which
the trial court has affirmatively exercised its discretion under section 17[, subdivision] (b)
to reduce a wobbler to a misdemeanor before the defendant committed and was adjudged
guilty of a subsequent serious felony offense.” (Id. at pp. 799-800.)
       The other arguments defendant makes in favor of retroactivity fare no better. The
presumptive retroactivity of changes in the law reducing punishment for crime comes
from Estrada, which held that if an amended statute mitigates punishment, the
amendment will operate retroactively to impose the lighter punishment unless there is a
saving clause. (Estrada, supra, 63 Cal.2d at p. 748.) The reason for this rule was that
“ ‘[a] legislative mitigation of the penalty for a particular crime represents a legislative
judgment that the lesser penalty or the different treatment is sufficient to meet the
legitimate ends of the criminal law.’ ” (Id. at p. 745.) While the electorate intended to
reduce penalties for crimes when it passed the Act, it did so only for those crimes the Act
specifically covers. Retroactivity is limited to the procedures set forth in section 1170.18,
which in turn applies to the offenses specifically addressed by the Act.
       While, as defendant notes, the Act’s stated purpose is to “[r]equire misdemeanors
instead of felonies for nonserious, nonviolent crimes like petty theft and drug
possession,” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3,
p. 70), and that it “ ‘shall be liberally construed to effectuate its purposes’ ” (Alejandro N.
v. Superior Court (2015) 238 Cal.App.4th 1209, 1222), those provisions do not change
what is clear from the Act’s text and structure. The Act was not intended to, and does
not, provide for collateral retroactive effect as to offenses not specifically covered by it.
Since reducing defendant’s felony failure to appear conviction to a misdemeanor would
require an impermissible retroactive collateral application of the Act, the trial court
correctly rejected defendant’s petition as to the failure to appear conviction.




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                                  DISPOSITION
     The judgment (order) is affirmed.



                                           /s/
                                         Blease, J.


We concur:



       /s/
     Raye, P. J.



       /s/
     Nicholson, J.




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