People v. Lynall, H041737

CourtCalifornia Court of Appeals
Writing for the CourtMÁRQUEZ, J.
Citation233 Cal.App.4th 1102,183 Cal.Rptr.3d 129
Parties The PEOPLE, Plaintiff and Respondent, v. David Lee LYNALL, Defendant and Appellant.
Decision Date29 January 2015
Docket NumberH041737

233 Cal.App.4th 1102
183 Cal.Rptr.3d 129

The PEOPLE, Plaintiff and Respondent,
v.
David Lee LYNALL, Defendant and Appellant.

H041737

Court of Appeal, Sixth District, California.

Filed January 29, 2015


Jonathan Grossman under appointment by the Court of Appeal for Appellant, Attorney for Defendant and Appellant David Lee Lynall.

Kamala D. Harris, Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Attorneys for Plaintiff and Respondent The People.

MÁRQUEZ, J.

233 Cal.App.4th 1104

In this case, as in the companion case of People v. Rivera (2015) 233 Cal.App.4th 1085 [183 Cal.Rptr.3d 362] 2015 WL 392859 ( Rivera ), we review the effect, if any, of recently enacted Proposition 47, the Safe Neighborhoods and Schools Act, on appellate jurisdiction.

In Rivera, after the court imposed a felony sentence, the defendant petitioned to have his sentence recalled and to be resentenced as a misdemeanant pursuant to Penal Code section 1170.18 , which the voters enacted as part of Proposition 47.

183 Cal.Rptr.3d 130

(Further undesignated statutory references are to the Penal Code.) Rivera also asked the court to designate his conviction a

233 Cal.App.4th 1105

misdemeanor under section 1170.18 . The trial court granted his requests. ( Rivera, supra, 233 Cal.App.4th at p. 1090–1091 183 Cal.Rptr.3d 362.) The question presented in Rivera is whether the case is a felony case or a misdemeanor case for the purpose of appellate jurisdiction. The question arises because section 1170.18, subdivision (k) provides that "[a]ny felony conviction that is recalled and resentenced ... or designated as a misdemeanor under [that section] shall be considered a misdemeanor for all purposes ...." (Italics added.)

In Rivera, we held that nothing in Proposition 47, including the provision that the conviction "shall be considered a misdemeanor for all purposes," alters existing rules regarding appellate jurisdiction. If the defendant was charged with at least one felony in an information, an indictment, or in a complaint that has been certified to the superior court under section 859a, it is a felony case and appellate jurisdiction properly lies with this court, regardless of the outcome on the felony charge. (Rivera, supra, 233 Cal.App.4th at p. 1095 , 183 Ca.l.Rptr.3d 362.)

The procedural context here is different from that in River a. This case does not involve either resentencing or the designation of a prior felony conviction as a misdemeanor under section 1170.18 . In this case, prior to the passage of Proposition 47, the prosecution charged defendant David Lee Lynall with a felony violation of Health and Safety Code section 11377 (possession of a controlled substance) in a complaint that the parties stipulated would serve as the information after defendant was held to answer. With the passage of Proposition 47 on November 4, 2014, violations of Health and Safety Code section 11377 became misdemeanors. Thereafter, as part of a plea agreement, the parties agreed that defendant's charge would be reduced to a misdemeanor pursuant to Proposition 47. Defendant was convicted by plea and the court imposed a 24-month conditional sentence with Proposition 36 probation. Like Rivera, we must determine whether this is a felony case or a misdemeanor case for the purpose of appellate jurisdiction.

As in Rivera, we identified the appellate jurisdictional question on our own motion and asked the parties to brief the issue. Both parties agree that this case is a felony case and that this court, as opposed to the appellate division of the superior court, has jurisdiction over Lynall's appeal. We agree with the parties. We hold that appellate jurisdiction in cases where a defendant is charged with a felony in an information, an indictment, or in a complaint that has been certified to the superior court under section 859a lies with the Court of Appeal, even if Proposition 47 subsequently reduced the charged offense to a misdemeanor.

233 Cal.App.4th 1106

FACTS

The facts are based on evidence presented at the preliminary hearing. In September 2014, Santa Cruz County Sheriff Deputy Stephen Ragusano received a complaint from a motorcycle shop that several people were camping illegally in the wooded ravine behind the shop and "leaving feces in that area." Deputy Ragusano met with the reporting party, who showed him an area adjacent to the shop's parking lot where the campers were located. According to Deputy Ragusano, it was not a public camp ground and no one was allowed to camp there. The reporting party asked Deputy Ragusano to patrol the area and to ask the campers to "move along."

183 Cal.Rptr.3d 131

On October 1, 2014, at night, Deputy Ragusano chased a suspect in a "strong-armed robbery" into the wooded area behind the motorcycle shop and lost contact with him. On October 5, 2014, Deputy Ragusano and two other deputies patrolled the wooded area. Deputy Ragusano saw three tents in a clearing in the ravine. The deputies announced their presence and asked the campers to come out of their tents. Defendant emerged from one of the tents. Deputy Ragusano testified that defendant resembled the robbery suspect he had chased into the ravine a few days earlier. Deputy Ragusano asked defendant for his name and date of birth, which defendant provided. Deputy Ragusano then asked his dispatcher to run a status check to determine whether defendant had any warrants. The dispatcher reported that defendant was a "parolee at large," which means defendant had absconded from parole supervision. The dispatcher also reported that there was an active parole warrant for his arrest. Deputy Ragusano confirmed the warrant, placed defendant in handcuffs, and then searched his tent.

Inside the tent, Deputy Ragusano found (1) a glass pipe with burn marks, (2) a "loaded syringe" with a liquid substance that tested presumptively positive for methamphetamine, (3) a small glass container with a wet cotton swab inside that tested presumptively positive for methamphetamine, (4) three knives, and (5) a 15-inch billy club. Deputy Ragusano testified that there was a usable amount of methamphetamine both in the syringe and on the cotton swab.

Parole Agent Jeffrey Clark testified that on October 5, 2014, defendant was on active parole with search terms, that defendant had absconded from parole in Pasadena, and that a court had issued a parole warrant for his arrest on September 17, 2014.

PROCEDURAL HISTORY

The prosecution filed a complaint that charged defendant with one felony count of possession of methamphetamine ( Health & Saf. Code, § 11377 ,

233 Cal.App.4th 1107

count 1), with an enhancement allegation that he had served two prior prison terms (§ 667.5, subd. (b)). The prosecution also charged defendant with one misdemeanor count of unlawful possession of a billy club (§ 22210, count 2) and one misdemeanor count of possession of an injection or smoking device ( Health & Saf. Code, § 11364.1, subd. (a) ; count 3).

Initially, defendant pleaded not guilty to all counts and denied the enhancement allegation. Defendant then filed a motion to suppress the evidence obtained in the search of his tent. The prosecution opposed the motion.

On November 4, 2014, the court conducted a preliminary hearing. The court also took evidence and heard argument on the motion to suppress. At the end of the preliminary hearing, the court held defendant to answer and denied the motion to suppress. The court observed that if Proposition 47 passed in the general election that day, then Health and Safety Code section 11377 would be amended prospectively the following day. The parties then stipulated that the complaint would serve as the information. Defendant was therefore charged with at least one felony in an information. Defendant was arraigned on the information. He pleaded not guilty to all counts and denied the enhancement allegation. The court set the matter, along with three other cases defendant had pending,1 for a trial setting conference on

183 Cal.Rptr.3d 132

November 6, 2014, two days after the election.

At the trial setting conference, the parties entered into a negotiated disposition. Both counsel agreed that in light of the passage of Proposition 47, the felony charged in count 1 (possession of methamphetamine, Health & Saf. Code, § 11377 ) "is now, by operation of law, a misdemeanor." The court amended the information to reflect "Count 1, as a misdemeanor, pursuant to Proposition 47," and struck the enhancement allegation. Defendant pleaded guilty to count 1. On the prosecution's motion, the court dismissed the misdemeanor charges in counts 2 and 3. The court then suspended imposition of sentence and imposed a 24-month conditional sentence with Proposition 36 probation.

On November 6, 2014, defendant also pleaded guilty in the petty theft case (No. M81505), and the court found probation violations in the other two cases (Nos....

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