Filed 7/12/16 P. v. Jewkes 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C079556

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM042665)

         v.

JAMES JUSTIN JEWKES,

                   Defendant and Appellant.



         Defendant James Justin Jewkes appeals from the judgment entered following his
no contest pleas in two separate cases. In case No. CM041916, defendant pleaded no
contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)1
In case No. CM042665, defendant pleaded no contest to felony failure to appear. (Pen.
Code, § 1320, subd. (b).) At sentencing, the trial court redesignated defendant’s
possession of methamphetamine offense as a misdemeanor in light of the passage of the
Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov.



1   Undesignated statutory references are to the Health and Safety Code.

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4, 2014)). The trial court sentenced defendant to three years in prison on the failure to
appear offense and to a concurrent one-year sentence on the possession of
methamphetamine offense. The trial court also ordered defendant to pay various fines,
fees, and penalty assessments.
       On appeal, defendant contends the abstract of judgment improperly reflects that he
is required to pay two court operations assessments and two conviction assessments. We
disagree. However, because we conclude there is a clerical error in the abstract of
judgment, we will remand the matter for correction of that error. In a supplemental brief,
defendant argues for the first time that the trial court erred by failing to reduce his felony
failure to appear offense to a misdemeanor. We disagree and shall affirm the judgment as
modified.
                                      DISCUSSION2
       A.     Court Operations Assessments and Conviction Assessments
       In its oral pronouncement of sentence, the trial court ordered defendant to pay a
$40 court operations assessment and a $30 conviction assessment for the misdemeanor
offense and the felony offense. The abstract of judgment reflects that defendant is
required to pay two court operations assessments and two conviction assessments. On
appeal, defendant contends that the abstract of judgment contains an error because it
should only reflect that he is required to pay one court operations assessment and one
conviction assessment. We disagree.
       We conclude that the trial court properly imposed a $30 conviction assessment and
a $40 court operations assessment for the misdemeanor offense and the felony offense.
The text of the relevant statutes requires an assessment be imposed on “every conviction
for a criminal offense.” (Gov. Code, § 70373, subd. (a)(1) [“[t]o ensure and maintain



2 We dispense with a recitation of the facts as they are unnecessary to our resolution of
this appeal.

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adequate funding for court facilities, an assessment shall be imposed on every conviction
for a criminal offense . . . in the amount of thirty dollars ($30)”]; Pen. Code, § 1465.8,
subd. (a)(1) [“in funding court operations, an assessment of forty dollars ($40) shall be
imposed on every conviction for a criminal offense”]; see People v. Sencion (2012)
211 Cal.App.4th 480, 483 [“The Courts of Appeal have held the court security fee and
the court facilities assessment apply to each count of which a defendant is convicted”].)
Accordingly, the abstract of judgment correctly reflects that defendant must pay two
conviction assessments and two court operations assessments. However, because the
abstract of judgment contains a clerical error, we conclude that remand for correction of
that error is appropriate.3
       It is the oral pronouncement of the court that is the judgment. (People v. Mesa
(1975) 14 Cal.3d 466, 471.) “All fines and fees [orally imposed at sentencing] must be
set forth in the abstract of judgment” because it “ ‘ “ ‘digest[s] or summarize[s]’ ” ’ ” the
judgment, and without such specification the Department of Corrections and
Rehabilitation “cannot fulfill its statutory duty to collect and forward deductions from
prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all
fines and fees in the abstract may assist state and local agencies in their collection efforts.
[Citation.]” (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Any
discrepancy between the judgment as orally pronounced and the abstract of judgment is
presumed to be the result of clerical error. (Ibid.; People v. Mitchell (2001) 26 Cal.4th
181, 185.) When the abstract of judgment does not accurately reflect the oral


3 While there is no authority requiring a misdemeanor offense to be included on the
abstract of judgment, this appeal could have been avoided had the trial court included the
misdemeanor offense on the abstract of judgment and separately listed, with the statutory
basis, all the fines, fees, and penalty assessments imposed for that offense. By lumping
together all the fines, fees, and penalty assessments imposed for the felony offense and
the misdemeanor offense, the abstract of judgment appears to reflect that certain fees
were improperly duplicated.

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pronouncement of sentence, an appellate court may order it corrected. (People v. Zackery
(2007) 147 Cal.App.4th 380, 385-386, 388-389; see Mitchell, at p. 185 [an abstract of
judgment is not judgment of conviction and does not control if different from the trial
court’s oral judgment; it is proper and important to correct such errors in abstracts of
judgment].)
       At sentencing, the trial court stated: “The restitution fine in the misdemeanor case
will be $150. The suspended amount will be $150.” However, the abstract of judgment
does not list any fine in the amount of $150. Although unclear, it appears from the record
that the trial court intended to impose two separate fines in the amount of $150. While
the imposition of a separate restitution fine for the misdemeanor offense (in addition to
the $300 restitution fine imposed for the felony offense) is appropriate (People v. Soria
(2010) 48 Cal.4th 58, 62-66), a matching but suspended $150 fine is not authorized under
Penal Code sections 1202.44 or 1202.45. Defendant was not granted probation for the
misdemeanor offense, and he is not subject to a period of parole for that offense. Thus,
neither a probation revocation fine (Pen. Code, § 1202.44) nor a parole revocation fine
(Pen. Code, § 1202.45) is appropriate.
       B.     Proposition 47
       In October 2014, defendant pleaded no contest to possession of methamphetamine
in violation of section 11377, subdivision (a). At the time of his plea, a violation of this
section was a “wobbler,” and therefore was punishable as either a misdemeanor or
felony. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; People v. Feyrer (2010)
48 Cal.4th 426, 438-439 [“When a defendant is convicted . . . of a wobbler . . . his or her
offense is ‘deemed a felony’ unless subsequently ‘reduced to a misdemeanor by the
sentencing court’ ”].) As amended by Proposition 47 in November 2014, a violation of
section 11377, subdivision (a) is now punishable as a misdemeanor, unless a defendant
had a prior conviction that qualified as a “ ‘ “super strike” ’ ” offense or that required him
to register as a sex offender under Penal Code section 290, subdivision (c). (Lynall, at

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pp. 1108-1109; § 11377 [see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of
Prop. 47, § 13, p. 73].)
       In January 2015, defendant failed to appear for sentencing. A complaint was
subsequently filed, charging defendant with felony failure to appear in violation of Penal
Code section 1320, subdivision (b). In April 2015, defendant pleaded no contest to this
offense. At sentencing, the trial court redesignated the possession of methamphetamine
offense as a misdemeanor and sentenced defendant to one year in prison, to run
concurrent to the three-year prison sentence imposed on the failure to appear offense.
       In his supplemental brief, defendant contends the trial court erred by failing to
reduce his felony failure to appear offense to a misdemeanor. According to defendant,
the trial court was required to reduce this offense to a misdemeanor in light of the
redesignation of his possession of methamphetamine offense as a misdemeanor under
Proposition 47. We disagree.
       We recently decided this precise issue in People v. Eandi (2015) 239 Cal.App.4th
801 (review granted, Nov. 18, 2015, S229305) and People v. Perez (2015)
239 Cal.App.4th 24, 32 (review granted, Nov. 18, 2015, S229046). We recognize these
decisions have been superseded by the grant of review, but continue to find their
reasoning persuasive and will follow it here.
       When, as here, a person willfully fails to appear after being convicted of a felony,
a charged failure to appear is a felony. But when the underlying conviction is a
misdemeanor, the failure to appear is a misdemeanor. (Pen. Code, § 1320, subds. (a) &
(b).) Proposition 47 explicitly reduced certain, specified offenses from felonies to
misdemeanors, but Penal Code section 1320 is not among those expressly included in the
text of the Proposition. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) pp. 35-36,
71-73.) Failure to appear is a stand-alone offense of deceit that is based on a defendant’s
breach of a contractual agreement with the People (People v. Jenkins (1983)
146 Cal.App.3d 22, 28) and the ultimate disposition of the underlying offense is

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immaterial (cf. People v. Walker (2002) 29 Cal.4th 577, 583 [punishment is proper
regardless of the disposition of the underlying offense]).
       As a result, the question is whether Proposition 47 has a collateral retroactive
effect such that the felony drug possession conviction became a misdemeanor as a matter
of law retroactively prior to defendant’s failure to appear for sentencing in January 2015,
thereby negating a necessary statutory element of the failure to appear on a felony
conviction: having been “convicted of the commission of a felony.” (Pen. Code, § 1320,
subd. (b).) Nothing in either the express language of the initiative or its ballot materials
reflects any intent to provide retroactive collateral relief as a matter of law. (Eandi,
supra, 239 Cal.App.4th at p. 805, rev. granted.) In January 2015, when defendant failed
to appear, he had been convicted of a felony for which he had promised to appear for at
sentencing. “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.”
(Eandi, at pp. 805-806, fn. omitted.) Redesignation of an offense from a felony to a
misdemeanor under Proposition 47 applies prospectively, i.e., from the date of
redesignation forward. (Eandi, at p. 806.) Thus, a felony offense redesignated as a
misdemeanor under Proposition 47 is a felony prior to redesignation, and is treated as a
misdemeanor only after the time of redesignation. (Eandi, at p. 806.) Accordingly,
because redesignation of the possession of methamphetamine offense occurred after
defendant failed to appear, we find no sentencing error. The trial court lacked the
authority to reduce defendant’s felony failure to appear offense to a misdemeanor.4




4 In light of our conclusion, we need not consider the alternative argument raised by
defendant in his supplemental brief.

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                                     DISPOSITION
       This matter is remanded with directions to the trial court to prepare a corrected
abstract of judgment in accordance with this opinion. The trial court shall forward a
certified copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.



                                                   /s/
                                                 Blease, Acting P. J.


We concur:



  /s/
Robie, J.



  /s/
Hoch, J.




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