People v. Buycks

• Decision Date: 20 October 2015
• Docket Number: B262023
• Citation: 241 Cal.App.4th 519,194 Cal.Rptr.3d 33
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stevenson BUYCKS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

241 Cal.App.4th 519

194 Cal.Rptr.3d 33

The PEOPLE, Plaintiff and Respondent,

v.Stevenson BUYCKS, Defendant and Appellant.

B262023

Court of Appeal, Second District, Division 8, California.

Filed 10/20/2015

As Modified on Denial of Rehearing 11/5/2015

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchezand David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

FLIER, J.

On November 4, 2014, voters enacted Proposition 47, “The Safe Neighborhoods and Schools Act.” It was intended to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, Proposition 47 reduced most possessory drug offenses and thefts of property valued at less than $950 to straight misdemeanors and created a process for persons currently serving felony sentences for those offenses to petition for resentencing for misdemeanors. (See Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Aug. 2015) p. 6 (hereafter Couzens & Bigelow, Proposition 47).)

In this case, appellant committed a felony narcotics offense (Health & Saf.Code, § 11350) and, while out on bail on that first offense, committed two additional felony offenses: petty theft with a prior (Pen.Code, § 666, subd. (a)) and evading a police officer (Veh.Code, § 2800.2, subd. (a)). In sentencing appellant in that second case, the court imposed a two-year sentencing enhancement pursuant to Penal Code section 12022.1, subdivision (b), which applies when a defendant commits a second felony while out on bail on an earlier felony. After voters passed Proposition 47, the trial court in the first case granted appellant's petition to reduce his narcotics offense to a misdemeanor. Thereafter, the court in the second case reduced his petty theft with a prior count to a misdemeanor. The second evading police felony count remained, and, because appellant's original sentence was structured around the petty theft with a prior as the principal term, the court conducted a full resentencing to elevate the remaining felony count to a full base term. The court reimposed the section 12022.1enhancement.

Enacted as part of Proposition 47, Penal Code section 1170.18, subdivision (k)provides that once a defendant is resentenced to a misdemeanor, that offense “shall be considered a misdemeanor for all purposes” with exceptions not applicable here. We must decide whether this provision precluded the trial court from reimposing the on-bail enhancement in Penal Code section 12022.1in the second case after the felony in the first case had been reduced to a misdemeanor. As we shall explain, because appellant was subject to a full resentencing in his second case, the court was required to evaluate the circumstances as they existed then, and by that time appellant's prior felony had been reduced to a misdemeanor. As a result, he was ineligible for the section 12022.1enhancement and the court erred by reimposing it. We strike the on-bail enhancement and affirm the judgment as modified.

PROCEDURAL BACKGROUND

Appellant was the subject of two criminal cases in Los Angeles Superior Court. In case No. BA418285 (the first case), he pled guilty on November 19, 2013, to felony possession of narcotics (Health & Saf.Code, § 11350), and on December 26, 2013, he was sentenced to three years in state prison. On December 16, 2013, appellant was arrested in case No. NA097755 (the second case). In that case, he pled no contest on August 8, 2014, to petty theft with a prior (Pen.Code, § 666, subd. (a);¹count 3) and evading a police officer (Veh.Code, § 2800.2, subd. (a); count 4). He admitted he committed those offenses while out on bail in the first case (§ 12022.1), and he had served two prior prison terms (§ 667.5, subd. (b)). With count 3 as the principal term, he was sentenced to seven years eight months, comprised of the upper term of three years for count 3; one-third of the middle term, or eight months, for count 4; two years for the on-bail enhancement; and two years for the prior prison terms.

After voters passed Proposition 47 on November 4, 2014, appellant petitioned for resentencing in each of his cases, requesting his narcotics conviction in his first case (Health & Saf.Code, § 11350) and his petty theft with a prior count in the second case (§ 666, subd. (a)) be reduced to misdemeanors. (See § 1170.18, subd. (b).) On January 8, 2015, the court granted appellant's petition in the first case, reduced his narcotics conviction to a misdemeanor, and resentenced him to 360 days in jail. On January 28, 2015, the court granted appellant's petition in the second case and reduced his felony theft conviction in count 3 to a misdemeanor. The court then restructured his sentence in the second case by elevating count 4 to a full base term of three years, plus two years for the on-bail enhancement, plus two years for the prior prison terms, plus six months for his new misdemeanor on count 3. The court imposed the on-bail enhancement over appellant's objection that it no longer applied because his felony conviction in the first case had been reduced to a misdemeanor. The court disagreed; it did not believe the voters intended Proposition 47 to affect the on-bail enhancement in section 12022.1. Appellant timely appealed his resentencing in the second case.

DISCUSSION

Section 12022.1, subdivision (b)provides, “Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.” Both “primary offense” and “secondary offense” in section 12022.1are statutorily limited to felonies. “Primary offense” means “a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) “Secondary offense” means “a felony offense alleged to have been committed while the person is released from custody for a primary offense.” (§ 12022.1, subd. (a)(2).)

Appellant obtained resentencing in both his cases pursuant to section 1170.18, which was enacted by Proposition 47. “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 Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18shall have his or her sentence recalled and be ‘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.’ (§ 1170.18, subd. (b).) Subdivision (c) of section 1170.18defines the term ‘unreasonable risk of danger to public safety,’ and subdivision (b) of the statute lists factors the court must consider in determining ‘whether a new sentence would result in an unreasonable risk of danger to public safety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera(2015) 233 Cal.App.4th 1085, 1092, 183 Cal.Rptr.3d 362(Rivera).)

As noted above, section 1170.18, subdivision (k)provides that, when a felony is reduced to a misdemeanor, it “shall be considered a misdemeanor for all purposes” with certain inapplicable exceptions. To determine whether this provision applies to preclude the imposition of the on-bail enhancement here, we apply the familiar rules of both statutory and initiative interpretation, which are identical. (Rivera, supra,233 Cal.App.4th at p. 1099, 183 Cal.Rptr.3d 362.) “ ‘ “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]” ’ [Citation.] In the case of a provision adopted by the voters, ‘their intent governs.’ [Citation.] [¶] ‘In determining such intent, we begin with the language of the statute itself.’ [Citation.] We look first to the words the voters used, giving them their usual and ordinary meaning. ‘ “If there is no ambiguity in the language of the statute, ‘then ... the plain meaning of the language governs.’ ” [Citation.] “But when the statutory language is ambiguous, ‘the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes.’ ” [Citation.] [¶] In construing a statute, we must also consider “ ‘the object to be achieved and the evil to be prevented by the legislation.’ ” [Citation.]' [Citation.] ‘When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] intended the same construction, unless a contrary intent clearly appears.’ ” (Id.at pp. 1099–1100, 183 Cal.Rptr.3d 362.)

The precise issue in this case is whether the voters intended section 1170.18, subdivision (k)to preclude the trial court from reimposing the on-bail enhancement when it resentenced appellant in his second case after his felony in the first case was reduced to a misdemeanor. We think they did, because appellant was subject to a fullresentencing in the second case. (See Couzens & Bigelow, Proposition 47, supra,at p. 57 [“Because the Proposition 47...