Filed 2/17/16



                           CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Appellant,                    E063384

v.                                                  (Super.Ct.No. RIF1402316)

KAREN RENEE BROWN,                                  OPINION

        Defendant and Respondent.



        APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Affirmed with directions.

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

Attorney, for Plaintiff and Appellant.

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

Defender, for Defendant and Respondent.




                                            1
       In accordance with a plea bargain, defendant Karen Renee Brown pleaded guilty

to one count of receiving stolen property in violation of Penal Code1 section 496,

subdivision (a). The People dismissed two additional felony counts of receiving stolen

property in violation of section 496, subdivision (a), and dismissed three felony counts of

identity theft in violation of section 530.5, subdivision (a). The plea agreement

anticipated defendant would serve two years in county jail. The trial court accepted

defendant’s plea and sentenced her to two years in county jail as recommended by the

People. Shortly thereafter, the voters approved Proposition 47, the Safe Neighborhoods

and Schools Act, which reduced certain property and drug offenses from felonies to

misdemeanors and provides for resentencing of certain defendants currently serving

felony sentences under prior law. Defendant promptly petitioned the trial court for

resentencing. The trial court granted defendant’s petition and resentenced her to

364 days in county jail.

       In this appeal, the People contend the trial court erred by granting defendant’s

petition. According to the People, Proposition 47 should not be interpreted in a manner

that permits a defendant to reap the benefit of a plea bargain entered into before

Proposition 47 without serving the full sentence she agreed to. The People also argue

defendant did not establish she is eligible for resentencing under Proposition 47.

Defendant did not show she would have been guilty of a misdemeanor (and consequently

she would have been subject to a sentence of no more than one year in county jail), had

       1   All additional statutory references are to the Penal Code.



                                               2
Proposition 47 been in effect at the time of her offense, because under those

circumstances the People would not have dismissed the felony counts that were left

undisturbed by the voters. Finally, assuming this court rejects the first two arguments,

the People contend defendant breached her obligation under the plea bargain to serve two

years in county jail, and the People should be permitted on remand to withdraw from the

plea bargain and reinstate the dismissed felony counts.

       We affirm. Under the plain language of Proposition 47, certain felony convictions

obtained by guilty plea are eligible for resentencing as misdemeanors. While we may be

sympathetic with the People’s assertion that our reading of Proposition 47 permits some

defendants to obtain the full benefits of their plea agreements without fully performing

their side of the bargain, nothing in defendant’s plea agreement insulated it from changes

in the law. We also conclude defendant met her burden of establishing eligibility for

resentencing. The People do not contend defendant received property valued at more

than $950, such that her conviction under section 496 is categorically ineligible for

resentencing under Proposition 47, and defendant was not required to demonstrate the

People would have offered her the same plea bargain had Proposition 47 been in effect

when she committed her crimes. We also conclude the People are not entitled to

withdraw from the plea bargain and to reinstate the dismissed counts because

Proposition 47 had the limited effect of reducing defendant’s sentence—she remains

convicted. Finally, we direct the trial court on remand to either order defendant to serve a

one-year term of parole as mandated by section 1170.18, subdivision (d), or to exercise

its discretion to release defendant from parole.

                                             3
                                              I.

                     FACTS AND PROCEDURAL BACKGROUND

       The People charged defendant by felony complaint with three counts of receiving

stolen property (§ 496, subd. (a), counts 1-3), and three counts of identity theft (§ 530.5,

subd. (a), counts 4-6). At her arraignment, defendant agreed to plead guilty to count 1 in

exchange for the dismissal of counts 2 through 6 and a sentencing recommendation from

the People of two years in county jail. Defendant pleaded guilty to count 1 and admitted

to receiving stolen mail. The trial court found a factual basis for defendant’s guilty plea

and subsequently sentenced defendant to two years in county jail with 80 days of pretrial

and good conduct credit.

       One month after her sentencing, defendant filed a petition in the superior court

requesting that she be resentenced to misdemeanor receipt of stolen property pursuant to

Proposition 47. In response, the People requested a hearing to determine whether they

could withdraw from the plea agreement with defendant. The People argued defendant

was not entitled to resentencing under Proposition 47 because she agreed as part of her

plea bargain to serve two years in county jail. Defendant, through her attorney, the public

defender, replied the People could not withdraw from the plea agreement and reinstate

the dismissed counts because a plea agreement incorporates and contemplates changes in

the law, such as Proposition 47.

       At the hearing, the prosecutor requested leave to withdraw from the plea bargain

“because we didn’t get the benefit of our deal.” The trial court paraphrased defendant’s

argument as, “well, it wasn’t her breaking the deal, it was the voters that did it.” The trial

                                              4
court responded to the prosecutor, “we have some analogies in Megan’s Law and in three

strikes and SVP, so, yeah, I realize sometimes the Legislature and voters change things

up on the parties and we don’t know which side it’s going to affect . . . .” The court

therefore granted the petition and resentenced defendant to 364 days in county jail and

credit for time served.

       The People timely appealed.2

                                             II.

                                      DISCUSSION

                                             A.

       The voters adopted Proposition 47 on November 4, 2014, and it went into effect

the next day. (Cal. Const., art. II, § 10, subd. (a).) “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, supra, 233 Cal.App.4th at p. 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

       2  The People have no right to appeal in a criminal case except as provided by
statute. (People v. Williams (2005) 35 Cal.4th 817, 822-823.) In its brief, the People
contend its appeal is authorized by section 1238, which provides the People may appeal
from a postjudment order affecting its substantial rights and from an unauthorized
sentence. (§ 1238, subd. (a)(5), (10).) We agree. Defendant does not challenge the
People’s right to appeal in this case, and she agrees this court, and not the superior court
appellate division, is the appropriate appellate court to hear this appeal. (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1093-1101 [conviction reclassified & resentenced under
Prop. 47 remains a felony for purposes of appellate jurisdiction].)



                                             5
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 Proposition 47.” (Id. at p. 1092.)

       There is no dispute that a conviction for receiving stolen property with a value of

$950 or less is now a misdemeanor, and that, unless otherwise disqualified, a defendant

currently serving a sentence for such a conviction is eligible for resentencing under

Proposition 47. (§§ 496, subd. (a), 1170.18, subd. (a).) The People do not contend

defendant’s conviction for receiving stolen mail in violation of section 496,

subdivision (a), is categorically excluded for resentencing because, for example, the

value of the property in question exceeded $950 or because defendant is otherwise

disqualified or unsuitable for resentencing. (See § 1170.18, subds. (b), (c) [court may

not resentence defendant if there is an unreasonable risk she will commit a new violent

felony], (i) [excluding from resentencing defendants convicted of violent or serious

felonies & defendants required to register as sex offenders].) Instead, the People contend

defendant is ineligible for resentencing under Proposition 47 because she was convicted

by guilty plea.

       Whether Proposition 47 applies to defendants convicted by guilty plea is a

question of statutory interpretation that we review de novo. (People v. Prunty (2015) 62

Cal.4th 59, 71.) “When we interpret an initiative, we apply the same principles

governing statutory construction. We first consider the initiative’s language, giving the

words their ordinary meaning and construing this language in the context of the statute

and initiative as a whole. If the language is not ambiguous, we presume the voters

                                             6
intended the meaning apparent from that language, and we may not add to the statute or

rewrite it to conform to some assumed intent not apparent from that language. If the

language is ambiguous, courts may consider ballot summaries and arguments in

determining the voters’ intent and understanding of a ballot measure.” (People v.

Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

       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.) We are not the first court to address whether Proposition 47 applies to

defendants convicted by guilty plea. The minor in T.W. v. Superior Court (2015) 236

Cal.App.4th 646 (T.W.) was adjudged a ward of the juvenile court after admitting he

received stolen property in violation of section 496. (Id. at p. 649.) When the minor

petitioned for modification of his disposition, the prosecution argued Proposition 47

“does not apply to negotiated dispositions.” (Id. at p. 650.) The juvenile court agreed

with the prosecution and denied the minor’s request. (Id. at pp. 650-651.) The minor

thereafter petitioned the Court of Appeal for a writ of mandate. (Id. at p. 651.)

       The appellate court concluded Proposition 47 “clearly and unambiguously”

applies to convictions obtained by guilty plea. (T.W., supra, 236 Cal.App.4th at p. 652.)

The court stated the only categorical disqualifications found in the statute 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. (Ibid.) “The statute does not otherwise automatically disqualify a

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

                                               7
because the conviction was obtained by plea agreement.” (Ibid.) The court also

concluded its interpretation of section 1170.18 effectuated the intent of the voters to more

wisely focus resources on violent and serious crimes. (Id. at pp. 652-653.) Therefore, the

court concluded the minor was entitled to modification of his disposition,

“notwithstanding the fact his conviction was obtained by a plea agreement.” (Id. at

p. 653.)

       The People urge us to disagree with T.W., stating that decision focused solely on

the text of section 1170.18 and failed to “address, or even acknowledge, the pre-existing,

well-established law . . . that prohibits a court from altering the express terms of a plea

agreement.” The People also contend the voters who adopted Proposition 47 are

presumed to be aware of the existing law on plea agreements, and nothing in the text or

legislative history of Proposition 47 indicates the voters intended to amend the general

law on plea bargaining. We are not convinced.

       As the People contend, 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

entered 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.)




                                              8
       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

‘“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.)

“[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. [Citation.]” (Id. 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.)

       The People contend Doe v. Harris “explicitly does not apply to express,

bargained-for terms of the plea agreement.” After the briefing was completed in this

case, the Second Appellate District, Division Five, issued its decision in Harris v.

Superior Court (2015) 242 Cal.App.4th 244 (petn. for review pending, petn. filed Dec.

28, 2015, S231489). There, a majority held Proposition 47 gives a defendant who

                                              9
pleaded down to a lesser charge the option to seek resentencing, but if resentencing has

the practical effect of fundamentally altering the character of the plea bargain, the People

may reinstate the dismissed charges. (Harris v. Superior Court, at pp. 251, 255-256.) In

reaching that holding, the majority concluded Doe v. Harris only applies to implied

collateral consequences of a plea bargain and does not apply to integral, bargained-for

terms of a plea bargain. (Harris v. Superior Court, at pp. 252-254.)

       We respectfully disagree with our colleagues that Doe v. Harris is limited to

collateral consequences of a plea bargain. The principle articulated in Doe v. Harris is

that, unless the parties explicitly or implicitly agree otherwise, a plea bargain is

vulnerable to future legislative amendment. (Doe v. Harris, supra, 57 Cal.4th at pp. 66,

71, 73-74.) The Supreme Court did not limit the rule to implied terms of a plea bargain,

and we conclude it applies equally to bargained-for terms such as the two-year county jail

term in this case. We agree with the dissent in Harris v. Superior Court: “There is no

meaningful distinction in the context of this case between the ‘statutory consequences’ of

a plea-agreed conviction as in Doe [v. Harris] and a negotiated term of a plea agreement.

Both involve the consequences of the plea agreement and the conviction resulting from

it.” (Harris v. Superior Court, supra, 242 Cal.App.4th at p. 260 (dis. opn. of Mosk, J.).)

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

implied provision that defendant’s two-year sentence would be insulated from future

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

agreed to serve two years in county jail in exchange for the dismissal of more serious

charges is insufficient evidence that she expressly or implicitly agreed her term of

                                              10
incarceration would be insulated from legislative amendment. Therefore, we conclude

Proposition 47 applies to defendant’s conviction by guilty plea.

                                              B.

       The People also contend the trial court erred by granting defendant’s petition

because she did not meet her burden of establishing she was eligible for resentencing

under Proposition 47. Section 1170.18 applies to defendants currently serving felony

sentences “who would have been guilty of a misdemeanor . . . had [Proposition 47] been

in effect at the time of the offense . . . .” (§ 1170.18, subd. (a).) According to the People,

had defendant committed her offense after the enactment of Proposition 47, she would

not have been guilty solely of a misdemeanor because any plea offer would not have

included dismissal of the felony identity theft charges that are ineligible for resentencing

under Proposition 47. In support of this argument, the People argue Proposition 47

“necessarily requires the court to consider the underlying facts of a defendant’s offenses,

not simply the statute of conviction.” We disagree.

       A defendant who files a petition under Proposition 47 bears the burden of

establishing they are eligible for misdemeanor resentencing. (People v. Sherow (2015)

239 Cal.App.4th 875, 878-880.) In a run-of-the-mill theft or receiving stolen property

case, the defendant’s burden will be to demonstrate the value of the property at issue did

not exceed $950. (Id. at pp. 879-880.) Nothing in the text, legislative history, or spirit of

Proposition 47 suggests a defendant convicted by guilty plea must also demonstrate she

would have received the same plea offer had she committed her crime after passage of

Proposition 47, and we decline to impose such a requirement.

                                             11
       Nor do we agree with the People that, when determining eligibility for

resentencing under Proposition 47, the trial court must look to charges that were

dismissed as part of the underlying plea agreement. Section 1170.18 addresses

convictions for reclassified offenses that, had they been committed after Proposition 47

went into effect, would be punished as misdemeanors. (§ 1170.18, subd. (a).) “Upon

receiving a petition under subdivision (a), the court shall determine whether the petitioner

satisfies the criteria in subdivision (a),” to wit, whether the defendant was convicted of a

reclassified crime. (§ 1170.18, subd. (b).) The trial court has discretion to consider the

defendant’s criminal history and the underlying facts of the case for the purpose of

determining whether resentencing the defendant “would pose an unreasonable risk of

danger to public safety.” (§ 1170.18, subd. (b); see id., subd. (b)(3) [trial court may

consider “[a]ny other evidence the court, within its discretion, determines to be relevant

in deciding whether a new sentence would result in an unreasonable risk of danger to

public safety.”].) But the trial court may not consider charges that were dismissed as part

of a plea agreement to conclude a defendant with an otherwise eligible conviction is not,

in fact, eligible for resentencing. (Cf. People v. Berry (2015) 235 Cal.App.4th 1417,

1425-1428 [trial court may not consider charges dismissed as part of plea bargain when

determining eligibility for sentencing recall under Proposition 36 (§ 1170.126)].)




                                             12
       Because defendant’s conviction is for an offense reclassified by Proposition 47,

and there is no indication the property defendant received was worth more than $950,

defendant satisfied her burden of demonstrating she was entitled to resentencing.3

                                             C.

       Last, we are not persuaded the People should be permitted on remand to withdraw

from the plea bargain and reinstate the dismissed felony identity theft counts because

defendant breached her side of the bargain. The decision in People v. Collins (1978) 21

Cal.3d 208 (Collins) 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. (Id. 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. (Ibid.) The defendant objected to

the trial court’s jurisdiction to impose sentence because the crime to which he pleaded


       3   If the trial court grants a petition for resentencing under section 1170.18,
subdivision (b), the defendant is “subject to parole for one year following completion of
his or her sentence, unless the court, in its discretion, as part of its resentencing order,
releases the person from parole.” (§ 1170.18, subd. (d).) When it granted defendant’s
petition for resentencing, the trial court ordered defendant released and directed the clerk
of the superior court to provide a copy of the minute order to the county jail. The court
did not order defendant to serve a one-year term of parole or exercise its discretion to
release her from parole, as mandated by section 1170.18, subdivision (d). We may
correct an unauthorized sentence on our own motion, even in the absence of an objection
in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) On remand, we will direct
the trial court to either order defendant to serve a term of parole for one year or to
exercise its discretion to release defendant from parole.



                                             13
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

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

                                              14
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.)

       In Harris v. Superior Court, supra, 242 Cal.App.4th 244, the majority concluded

Collins applies whenever a change in the law has the effect of depriving the People of the

benefit of a plea bargain, whether the defendant’s vulnerability to incarceration is

eliminated entirely or merely reduced. (Harris v. Superior Court, supra, at pp. 250-251.)

Because the resentencing in that case had the effect of reducing the defendant’s potential

sentence from six years in state prison to six months in county jail, which the majority

concluded was a windfall to the defendant and deprived the People of the benefit of their

bargain, the majority held the People could withdraw from the plea bargain and reinstate

dismissed charges. (Id. at pp. 248, 250-251.)




                                             15
       Again, we must disagree with the majority in Harris v. Superior Court.

Notwithstanding some broader language in Collins,4 the holding in that case is limited:

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.)

Because Proposition 47 does not have such an effect, Collins is inapplicable.5 (Harris v.

Superior Court, supra, 242 Cal.App.4th at p. 262 (dis. opn. of Mosk, J.) [“Unlike in

Collins, petitioner here does not ‘escape from vulnerability to sentence’ [citation], for he

remains convicted and his punishment is simply reduced.”].)

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

may not reinstate the dismissed counts.




       4   “‘The holding of a decision is limited by the facts of the case being decided,
notwithstanding the use of overly broad language by the court in stating the issue before
it or its holding or in its reasoning.’ [Citation.]” (People v. Jenkins (2010) 50 Cal.4th
616, 684.)

       5 We also disagree with the decision in In re Blessing (1982) 129 Cal.App.3d
1026, which applied the reasoning of Collins to the judicial invalidation of firearm use
enhancements, which the defendant admitted as part of his guilty plea. (In re Blessing, at
pp. 1029-1031.) Not only did the defendant there remain convicted and vulnerable to a
term of incarceration, we have serious doubts whether Collins should apply outside the
context of legislative acts, which have the effect of invalidating convictions by guilty
plea.



                                             16
                                             III.

                                      DISPOSITION

       The postjudgment order is affirmed. On remand, the trial court is directed to order

defendant to serve a term of parole for one year, unless in its discretion the court orders

defendant released from parole. (§ 1170.18, subd. (d).)

       CERTIFIED FOR PUBLICATION



                                                                McKINSTER
                                                                                              J.
We concur:



RAMIREZ
                        P. J.



HOLLENHORST
                           J.




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