Filed 6/28/16 P. v. Wallace 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063760

v.                                                                      (Super.Ct.No. RIF1203213)

DECHAWN LEWIS WALLACE,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed.

         Sarita Ordóñez, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Dechawn Lewis Wallace pleaded guilty to one count of receiving

stolen property in violation of Penal Code section 496, subdivision (a) (all additional

statutory references are to the Penal Code), and was sentenced to eight months in state

prison to be served consecutively to a four-year sentence in another case. As part of his

guilty plea, defendant executed a waiver under People v. Harvey (1979) 25 Cal.3d 754

(Harvey), which permitted the trial court to consider dismissed counts when determining

sentence and victim restitution.

       After the voters of this state adopted Proposition 47, the Safe Neighborhoods and

Schools Act, defendant petitioned the superior court to reclassify his conviction in this

case as a misdemeanor and to resentence him. Although the superior court concluded the

value of the stolen property involved in the count to which defendant pleaded guilty did

not exceed $950, the jurisdictional amount in question for misdemeanor receipt of stolen

property under Proposition 47 (§ 496, subd. (a)), it denied the petition because, in light of

defendant’s Harvey waiver, the aggregate value of the property involved in all the counts

charged in the complaint did exceed $950.

       Defendant appeals, contending the superior court erred by aggregating the value of

the property involved in all the counts for which defendant was charged when it denied

the petition. The People concede the superior court was required to limit its inquiry into

the value of the property involved in the offense for which defendant pleaded guilty, and

that it erred by aggregating the value of the property involved in all counts charged in the

felony complaint. The People request we reverse the order and remand for the superior

court to determine whether defendant is eligible for resentencing under section 1170.18,


                                              2
subdivision (b), in particular, to determine if defendant poses an unreasonable risk of

danger to public safety. In addition, if the superior court grants the petition and

resentences defendant, the People contend they are entitled to withdraw from the plea

bargain and to reinstate counts that were dismissed as part of the bargain.

       We agree with defendant and with the People that the superior court erred by

denying defendant’s petition and, therefore, we reverse the order. We also agree with the

People that on remand the court may exercise its discretion to determine whether

defendant should not be resentenced because he poses an unreasonable risk of danger to

public safety. However, we conclude the People may not withdraw from the plea bargain

and reinstate dismissed charges if the superior court resentences defendant.

                                              I.

                            PROCEDURAL BACKGROUND

       By felony complaint, the People charged defendant with one count of receiving a

stolen credit card (§ 496, subd. (a); count 1), one count of receiving a stolen laptop

computer (§ 496, subd. (a); count 2), and two misdemeanor counts of fraudulently using

access card account information (§ 484g, subd. (a); counts 3-4). As part of a plea

bargain, defendant pleaded guilty to count 1 and executed a “Harvey waiver.” The trial

court sentenced defendant to eight months in state prison to be served consecutively with

a four-year prison sentence in case No. RIF1201005, and on the People’s motion the

court dismissed the remaining counts.




                                              3
       After the passage of Proposition 47, defendant filed a petition in the superior court

requesting his conviction be reclassified as a misdemeanor and that he be resentenced.

Using the mandatory form created by the superior court, defendant indicated he

“believ[ed] the value of the . . . property [did] not exceed $950.” In a form response, the

People argued defendant was ineligible for resentencing under Proposition 47 because the

value of the property exceeded $950. The court therefore set the matter for a hearing to

determine the amount of the loss involved.

       Before the hearing, the People filed a written opposition to the petition alleging the

stolen credit card defendant admitted to receiving had a credit limit over $950 and,

therefore, he was ineligible for resentencing under Proposition 47. In addition, the

People argued that, if the superior court did grant defendant’s petition, the People should

be permitted to withdraw from the plea bargain and to reinstate the dismissed counts. In

a bench brief, defendant argued the record did not support the People’s assertion the

value of the stolen credit card exceeded $950, and the People should not be permitted to

withdraw from the plea bargain and to reinstate dismissed charges if the superior court

were to grant defendant’s petition.

       At the hearing, the court asked the prosecutor whether the stolen property at issue

was a credit card. The prosecutor responded affirmatively, and the court indicated its

intention to “grant the petition based on the fact that the credit card balance limit is not a

proof of over $950.” When the court noted defendant had been ordered to pay victim

restitution of $1,800, defendant’s attorney explained defendant only pleaded guilty to

receiving a stolen credit card and the restitution order likely took into account the value


                                               4
of the stolen laptop computer involved in a dismissed count. However, counsel argued

that, “[e]ven if the Court goes behind the record and looks at what the credit card was

used for, it was $529 at a Wal-Mart.” Based on the Harvey waiver, the court indicated

the total value of the property involved exceeded $950. Defense counsel responded that

dismissed counts “should not be used to determine what [defendant] actually pled to,”

and that the record clearly indicated the value of the stolen credit card did not exceed

$950. The court found the value of the stolen credit card “is clearly under $950,” but

concluded defendant’s Harvey waiver permitted it to consider the entire value of the

property involved in the case. Therefore, the court denied the petition.

       Defendant timely appealed.

                                             II.

                                      DISCUSSION

       A.     The Trial Court Erred by Considering the Value of Property Related to

Dismissed Counts When Determining Eligibility for Resentencing Under Proposition 47

       “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).” (People v. Rivera (2015) 233 Cal.App.4th 1085,

1091.) “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 for a recall of that sentence and

request resentencing in accordance with the statutes that were added or amended by


                                             5
Proposition 47.” (Id. at p. 1092.) If a defendant qualifies for resentencing under

Proposition 47, the trial court shall recall the felony sentence and resentence the

defendant to a misdemeanor unless it determines, in its discretion, the defendant “would

pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b); see id.

subds. (b)(1)-(3) [listing factors to consider when determining dangerousness],

(c) [defining “‘unreasonable risk of danger to public safety’” as the risk of committing

so-called “super strike” offenses defined in § 667, subd. (e)(2)(C)(iv)].)

       One of the theft-related offenses amended by Proposition 47 and expressly

governed by its resentencing provisions is receipt of stolen property. (§§ 496, subd. (a),

1170.18, subds. (a), (b).) “Every person who buys or receives any property that has been

stolen or that has been obtained in any manner constituting theft or extortion, knowing

the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in

concealing, selling, or withholding any property from the owner, knowing the property to

be so stolen or obtained, shall be punished by imprisonment in a county jail for not more

than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if

the value of the property does not exceed nine hundred fifty dollars ($950), the offense

shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding

one year, if such person has no prior convictions for an offense specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 [i.e., so-called “super

strikes”] or for an offense requiring registration pursuant to subdivision (c) of Section

290 [i.e., sex offender registration].” (§ 496, subd. (a), italics added.)




                                               6
       At the hearing on defendant’s petition, the prosecutor essentially conceded, and

the trial court expressly found, that the stolen credit card defendant admitted to receiving

was valued at less than $950. There was no allegation in the trial court or on appeal that

defendant has a disqualifying prior “super strike” conviction, that he is required to

register as a sex offender, or that he poses an unreasonable risk of danger to public safety.

The trial court’s sole reason for denying the petition was that, in light of defendant’s

Harvey waiver, the total value of the property involved in this case exceeded $950. The

People concede this was error, and we agree.

       The type of aggregation employed by the trial court here was explicitly rejected in

People v. Hoffman (2015) 241 Cal.App.4th 1304 (Hoffman). The defendant in Hoffman

was charged, inter alia, with 18 counts of forging checks (§ 470, subd. (d)), but as part of

a plea bargain she pleaded guilty to only seven counts of forging checks valued between

$175 and $400. (Id. at p. 1307.) The remaining counts were dismissed and defendant

entered a Harvey waiver, which “allowed the court to consider the facts underlying the

dismissed counts ‘in determining sentence.’” (Hoffman, at p. 1307.) After the passage of

Proposition 47, which amended section 473 to provide that forgery of a check valued at

$950 or less is a misdemeanor (§ 473, subd. (b)), the defendant petitioned to have her

seven forgery convictions reclassified and resentenced as misdemeanors. (Hoffman, at

p. 1308.) The trial court denied the petition, concluding the aggregate value of the seven

forged checks exceeded $950 and, therefore, the defendant was outside the spirit of

Proposition 47. (Hoffman, at p. 1308.)




                                              7
       The appellate court in Hoffman concluded the defendant satisfied the criteria for

resentencing under section 1170.18 because she was currently serving sentences for

forgery offenses in which the checks involved did not exceed $950 in value, and because

she did not pose a risk of unreasonable danger to public safety. (Hoffman, supra, 241

Cal.App.4th at pp. 1309-1310.) The court also concluded section 473 does not authorize

a trial court to aggregate the value of multiple forged checks when determining whether

the offense is a felony or a misdemeanor. (Hoffman, at p. 1310.) Unlike section 476a,

subdivision (b), which addresses passing checks with insufficient funds and provides for

felony punishment if the “‘total amount’” of the bad checks passed exceeds $950,

“Section 473 does not employ this ‘total amount’ approach.” (Hoffman, at p. 1310.)

       Although the People conceded section 473 does not authorize aggregation, they

argued the defendant’s “Harvey waiver allowed the trial court to rely on facts underlying

the dismissed forgery and grand theft counts to find that [defendant] is ‘outside the spirit’

of Proposition 47.” (Hoffman, at p. 1311.) The court disagreed. “The Harvey waiver

allowed the trial court to rely on facts underlying the dismissed counts to make whatever

sentencing determinations were authorized under section 1170.18. But only two

determinations were authorized by section 1170.18: (1) whether [defendant] meets the

statutory criteria, and (2) whether [defendant’s] resentencing would pose an unreasonable

risk of danger of a super-strike offense.” (Hoffman, at p. 1311; see id. at pp. 1308-1309.)

In contrast with the three strikes law, which permits a court to strike a prior conviction if

it finds the defendant falls outside the spirit of the law, “[t]hat is not the case with




                                               8
Proposition 47. The trial court may not refuse to reduce a defendant’s sentence based on

the court’s notion of the statute’s ‘spirit.’” (Id. at p. 1311.)

       The reasoning in Hoffman applies equally here. Section 496, subdivision (a),

provides that receipt of stolen property is a misdemeanor if the value of the property does

not exceed $950. Like section 473, section 496 does not employ a “‘total amount’”

approach when determining whether receipt of stolen property is punishable as a felony

or as a misdemeanor. (Hoffman, supra, 241 Cal.App.4th at p. 1310.) Because (1) the

value of the stolen credit card defendant admitted to receiving did not exceed $950,

(2) there is no indication defendant committed a prior super strike or is required to

register as a sex offender, and (3) there is no evidence in the record defendant is likely to

commit a super strike in the future, the trial court was not permitted to consider the facts

of dismissed charges to determine whether defendant fell outside the “‘spirit’” of

Proposition 47. (Hoffman, at p. 1311.) Therefore, we must reverse the order denying

defendant’s petition.

       Although we are unable to find anything in the record to indicate defendant might

pose a risk of danger to public safety if he is resentenced, we agree with the People that

on remand the trial court may, in its discretion, make such an inquiry. (§ 1170.18,

subd. (b).) The People did not oppose the petition on the basis of dangerousness and the

court did not consider the issue in the first instance.




                                                9
       B.     The People Are Not Entitled to Withdraw from the Plea Bargain and to

Reinstate Dismissed Charges if Defendant is Resentenced Under Proposition 47

       Although the People concede defendant’s conviction for receiving stolen property

qualifies for resentencing under Proposition 47, they contend such a resentencing would

constitute a breach of the plea bargain on defendant’s part, which entitles the People to

withdraw from the plea bargain and to reinstate dismissed counts. That issue is currently

pending before the California Supreme Court. (Harris v. Superior Court (2015) 242

Cal.App.4th 244, review granted Feb. 24, 2016, S231489; People v. Gonzalez (2016) 244

Cal.App.4th 1058, review granted Apr. 27, 2016, S233219; People v. Brown (2016) 244

Cal.App.4th 1170, review granted Apr. 27, 2016, S233274; People v. Perry (2016) 244

Cal.App.4th 1251, review granted Apr. 27, 2016, S233287; People v. Garcia (Feb. 5,

2016, E063383) [nonpub. opn.], review granted Apr. 27, 2016, S233171.) We conclude

the People may not withdraw from the plea bargain and reinstate dismissed charges.

       Section 1170.18 unambiguously applies to a defendant “currently serving a

sentence for a conviction, whether by trial or plea . . . .” (§ 1170.18, subd. (a), italics

added; see T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652 [concluding Prop. 47

“clearly and unambiguously” applies to convictions obtained by guilty plea].) The only

categorical disqualifications found in Proposition 47 are for defendants convicted of

serious or violent felonies, defendants required to register as sex offenders, and

defendants who are found to pose an unreasonable risk of committing a new violent

crime. (T.W. v. Superior Court, at p. 652.) “The statute does not otherwise automatically




                                              10
disqualify a petitioner and nothing in section 1170.18 reflects an intent to disqualify a

petitioner because the conviction was obtained by plea agreement.” (Ibid.)

       Relying on now-depublished authority, the People contend a stipulated prison term

is a fundamental assumption of a plea bargain that is binding on a defendant, and

misdemeanor sentencing under Proposition 47 would constitute a windfall to a defendant

not contemplated at the time of the plea. Moreover, relying on People v. Collins (1978)

21 Cal.3d 208 (Collins), the People contend they are entitled to withdraw from the plea

bargain and to reinstate dismissed charges because resentencing under Proposition 47

would have the effect of depriving the People of the benefit of their bargain. We disagree

with both bases of the People’s argument.

       A negotiated plea bargain is a contract between a defendant and the prosecutor

and, if accepted, its terms bind the parties and the trial court. (People v. Segura (2008)

44 Cal.4th 921, 930-931.) Although the trial court retains inherent sentencing discretion,

it must impose a sentence within the bounds of the plea agreement. (Id. at p. 931.) If the

trial court disagrees with the terms of the plea agreement, it may reject it. (Id. at pp. 931-

932.) However, once the trial court has accepted a plea and imposed sentence, the

material terms of a plea bargain may not be modified without both parties’ consent.

(People v. Martin (2010) 51 Cal.4th 75, 80.)

       Although the parties and the trial court may not unilaterally alter the terms of a

plea bargain, subsequent statutory enactments or amendments adopted by the Legislature

or the voters exercising the initiative power may have the effect of altering the terms of

the plea bargain. “[T]he general rule in California is that the plea agreement will be


                                             11
‘“deemed to incorporate and contemplate not only the existing law but the reserve power

of the state to amend the law or enact additional laws for the public good and in

pursuance of public policy. . . .”’ [Citation.] That the parties enter into a plea agreement

thus does not have the effect of insulating them from changes in the law that the

Legislature has intended to apply to them.” (Doe v. Harris (2013) 57 Cal.4th 64, 66

(Doe).) “It therefore follows that ‘requiring the parties’ compliance with changes in the

law made retroactive to them does not violate the terms of the plea agreement, nor does

the failure of a plea agreement to reference the possibility the law might change translate

into an implied promise the defendant will be unaffected by a change in the statutory

consequences attending his or her conviction.’” (Johnson v. Department of Justice

(2015) 60 Cal.4th 871, 888-889, fn. 10, quoting Doe, at pp. 73-74.) “To that extent, then,

the terms of the plea agreement can be affected by changes in the law.” (Doe, at p. 74.)

       “[I]t is not impossible the parties to a particular plea bargain might affirmatively

agree or implicitly understand the consequences of a plea will remain fixed despite

amendments to the relevant law. [Citations.]” (Doe, supra, 57 Cal.4th at p. 71.)

“Whether such an understanding exists presents factual issues that generally require an

analysis of the representations made and other circumstances specific to the individual

case.” (Ibid.) Standing alone, however, “prosecutorial and judicial silence on the

possibility the Legislature might amend a statutory consequence of a conviction should

not ordinarily be interpreted to be an implied promise that the defendant will not be

subject to the amended law.” (Ibid.)




                                             12
       The People do not contend the plea bargain in this case included an express or

implied provision that defendant’s eight-month sentence would be insulated from future

legislative action, and we find no evidence to suggest otherwise. The mere fact defendant

agreed to serve eight months in exchange for the dismissal of additional charges is

insufficient evidence that he expressly or implicitly agreed his term of incarceration

would be insulated from legislative amendment.

       Nor are we persuaded the People should be permitted on remand to withdraw from

the plea bargain and to reinstate dismissed counts because resentencing defendant would

deprive the People of the benefit of their bargain. The decision in Collins, supra,

21 Cal.3d 208, does not support the People’s request. The defendant there pleaded guilty

to one count of oral copulation in violation of former section 288a, in exchange for

dismissal of multiple charges and dismissal of the allegation the defendant committed the

oral copulation by means of force. (Collins, at p. 211.) Before sentencing, the

Legislature repealed former section 288a and enacted a new version of the statute that did

not proscribe oral copulation between consenting adults. (Collins, at p. 211.) The

defendant objected to the trial court’s jurisdiction to impose sentence because the crime

to which he pleaded guilty had been repealed. The trial court overruled the objection and

sentenced the defendant to one to 15 years in state prison. (Id. at pp. 211-212.)

       The Supreme Court held the trial court erred by imposing a sentence because the

conduct for which the defendant was convicted was no longer punishable. (Collins,

supra, 21 Cal.3d at pp. 212-213.) With respect to a proper disposition, the defendant

stated he had no intention of withdrawing from the plea, which might trigger the People’s


                                            13
right to reinstate the dismissed counts, and instead suggested the court “not reverse his

conviction but rather ‘correct’ the sentence to ‘no penalty’ . . . .” (Id. at p. 214.) Because

“[a] conviction cannot stand on appeal when it rests upon conduct that is no longer

sanctioned,” the court concluded the proper remedy was to reverse the conviction with

directions to dismiss the count on which the defendant was convicted. (Ibid.)

       Next, the Supreme Court addressed whether the People could reinstate the

dismissed counts on remand. “Critical to plea bargaining is the concept of reciprocal

benefits. When either the prosecution or the defendant is deprived of benefits for which

it has bargained, corresponding relief will lie from concessions made.” (Collins, supra,

21 Cal.3d at p. 214.) “The state, in entering a plea bargain, generally contemplates a

certain ultimate result; integral to its bargain is the defendant’s vulnerability to a term of

punishment. . . . When a defendant gains total relief from his vulnerability to sentence,

the state is substantially deprived of the benefits for which it agreed to enter the bargain.

Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it

is his escape from vulnerability to sentence that fundamentally alters the character of the

bargain.” (Id. at p. 215, italics added.) The defendant in Collins sought relief from the

unlawful conviction “but [to] otherwise leave the plea bargain intact. This is bounty in

excess of that to which he is entitled.” (Id. at p. 215.) Because the legislative

amendment to former section 288a “destroy[ed] a fundamental assumption underlying the

plea bargain—that defendant would be vulnerable to a term of imprisonment”—the court

held, “[t]he state may therefore seek to reestablish defendant’s vulnerability by reviving

the counts dismissed.” (Ibid.)


                                              14
       Notwithstanding some broader language in Collins, the holding in that case is

narrow: the People may withdraw from a plea bargain and reinstate dismissed charges

only when a subsequent legislative change has the effect of eliminating entirely the

defendant’s conviction and vulnerability to incarceration and, consequently, has the effect

of entirely depriving the People of the benefit of their bargain. (Collins, supra, 21 Cal.3d

at 215.)

       If, on remand, the trial court grants defendant’s petition, at most Proposition 47

would have the effect of reducing defendant’s conviction to a misdemeanor and

potentially reducing his term of incarceration. We say resentencing could potentially

result in a reduction in defendant’s punishment because, even after the passage of

Proposition 47, misdemeanor receipt of stolen property is punishable by incarceration in

county jail for no more than one year. (§ 496, subd. (a).) Theoretically, the trial court

could reclassify defendant’s conviction as a misdemeanor and sentence him to the same

eight-month term (cf. People v. Sellner (2015) 240 Cal.App.4th 699, 701-702

[“[a]ppellant was not strictly ‘resentenced’ but, instead, ordered to serve the sentence

originally imposed, two years’ county jail”]), although the court may not resentence him

to a longer term. (§ 1170.18, subd. (e).) And even if the trial court were to sentence

defendant to a shorter term, defendant would not be completely insulated from

punishment, and the People would not be entirely deprived of their bargain. Collins is

simply inapplicable here.

       Therefore, on remand, the People may not withdraw from the plea bargain and

may not reinstate dismissed counts.


                                             15
                                            III.

                                     DISPOSITION

       The order denying defendant’s petition for resentencing is reversed. On remand,

the trial court may exercise its discretion to determine whether defendant poses an

unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                               Acting P. J.
We concur:



MILLER
                          J.



CODRINGTON
                          J.




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