People v. Rivera
| Decision Date | 29 January 2015 |
| Docket Number | H041742 |
| Citation | 233 Cal.App.4th 1085,183 Cal.Rptr.3d 362 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Miguel Angel RIVERA, Defendant and Appellant. |
Jonathan Grossman, Santa Clara, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Angel Rivera.
Kamala D. Harris, Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Attorneys for Plaintiff and Respondent The People.
On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) In this case, and in the companion case of People v. Lynall (2015) 233 Cal.App.4th 1102, 183 Cal.Rptr.3d 129, 2015 WL 392898, we review questions regarding the effect of Proposition 47 on appellate jurisdiction. Here we determine which court--the Court of Appeal or the appellate division of the superior court--has jurisdiction over an appeal from a case in which the defendant was originally convicted of a felony, but the offense was later (1) designated a misdemeanor under Proposition 47, or (2) the defendant was resentenced as a misdemeanant under Proposition 47. As part of our analysis, we review the effect of language in Penal Code section 1170.18, subdivision (k) --which was enacted as part of Proposition 47--that “[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) [of section 1170.18 ] shall be considered a misdemeanor for all purposes....”
We identified the jurisdictional question on our own motion and asked the parties to address the question in letter briefs limited to that issue. (In re Perris City News (2002) 96 Cal.App.4th 1194, 1197, 118 Cal.Rptr.2d 38 (Perris ) [].) In their letter briefs, both parties argue that this is a felony case for the purpose of appellate jurisdiction and that this court, as opposed to the appellate division of the superior court, has jurisdiction over this appeal. We agree with the parties and hold that nothing in Proposition 47 alters existing rules regarding appellate jurisdiction. Accordingly, if a defendant is 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, as is the case here, it is a felony case and appellate jurisdiction properly lies with this court. (Further undesignated statutory references are to the Penal Code.)
Since we requested briefing on appellate jurisdiction before the record was filed, we do not have any information regarding the facts that led to defendant's conviction.
The superior court clerk provided us with copies of minute orders for hearings on June 25, 2014, and December 4, 2014. Defendant's appellate counsel attached copies of minute orders for a hearing on October 16, 2014, and the December 4, 2014 hearing to his letter brief. In the absence of a certified appellate record, the Attorney General “join[ed] in appellant's implied request that the Court take judicial notice of the ... minute orders provided as exhibits by appellant.” We grant the parties' requests for judicial notice. On our own motion, we shall also take judicial notice of the June 25, 2014 minute order provided by the superior court clerk. The minute orders reveal the following procedural history.
Defendant was charged by information with two felony counts of possessing a controlled substance for sale under two different provisions of the Health and Safety Code (Health & Saf.Code, §§ 11351 (count 1, 11378 (count 2)).
On June 25, 2014, as part of a negotiated disposition, the prosecution amended the information to add a felony count of possession of a controlled substance (Health & Saf.Code, § 11350 ) as count 3. Defendant then pleaded no contest to count 3 on the conditions that he receive felony probation and that counts 1 and 2 be dismissed. Defendant was referred to the probation department for a presentence report. A sentencing hearing was scheduled for August 1, 2014, with a notation that counts 1 and 2 were to be dismissed at sentencing.
The documents before us do not include a minute order for the sentencing hearing on August 1, 2014. But we may infer, from the record we do have, that defendant was granted probation with various conditions, but without imposition of sentence, and that counts 1 and 2 were dismissed.
On September 16, 2014, the probation officer filed a “Petition for Revocation/Modification of Probation,” alleging violations of three conditions of defendant's probation. On October 16, 2014, defendant--who was in custody-- admitted two of the three alleged violations. The allegations regarding the third violation were dismissed and the court referred defendant to the probation department for a supplemental report.
On December 4, 2014, the court imposed a 16-month lower-term felony sentence on count 3 (the possession of a controlled substance charge) and ordered defendant to serve his sentence in the county jail under section 1170, subdivision (h). The court also imposed a previously suspended probation revocation restitution fine of $300 (§ 1202.44).
In the same proceeding, the court received defendant's petition for resentencing and application to designate his offense a misdemeanor under Penal Code section 1170.18. The court granted the application and designated defendant's conviction offense a misdemeanor.1 The court then recalled defendant's sentence and sentenced him to 149 days in jail. With credit for time served (75 actual days plus 74 conduct credits), the court released defendant from custody. The court also reimposed the probation revocation restitution fine of $300 (§ 1202.44).
On December 10, 2014, defendant filed a notice of appeal on the Judicial Council form for felony appeals, which the superior court clerk transmitted to this court. The following day, before the record was filed and before counsel was appointed, we asked the parties to brief the question “whether this court has jurisdiction to hear an appeal after resentencing pursuant to Proposition 47, or whether such an appeal is properly transferred to the appellate division of the superior court.” Our order referred the parties to section 1170.18, subdivision (k) and our decision in People v. Morales (2014) 224 Cal.App.4th 1587, 169 Cal.Rptr.3d 814 (Morales ). We have received the parties' letter briefs. Both parties contend that this court, not the appellate division of the superior court, has appellate jurisdiction in this case. We agree.
In examining the jurisdictional question presented, we review: (1) pertinent provisions from Proposition 47; (2) constitutional provisions, statutes, and rules that govern appellate jurisdiction; and (3) our decision in Morales. We also interpret the language of section 1170.18.
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). Proposition 47: (1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.)
Relevant here, Proposition 47 amended Health and Safety Code section 11350. Prior to that amendment, possession of the controlled substances designated in subdivision (a) of that section was a felony and possession of the controlled substances designated in subdivision (b) was a wobbler. (Health & Saf. Code, former § 11350, subds. (a), (b).)2 It is not clear from our limited record whether defendant pleaded no contest to violation of former subdivision (a) or former subdivision (b) of Health and Safety Code section 11350. But in any event, the violation was charged as a felony and he pleaded no contest to a felony offense.
As amended by Proposition 47, Health and Safety Code section 11350 now provides that a violation of that section is a misdemeanor, unless the defendant “has one or more prior convictions” for an offense specified in section 667, subdivision (e)(2)(C)(iv)—which lists serious and violent felonies that are sometimes referred to as “ ‘super strike’ offenses”—or for an offense that requires the defendant to register as a sex offender under section 290, subdivision (c). Such ineligible defendants “may instead be punished pursuant to subdivision (h) of Section 1170 ” (Health & Saf. Code, § 11377, subd. (a).) Section 1170, subdivision (h) sets forth rules for sentencing felony offenders under the Criminal Justice Realignment Act of 2011.)
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 Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall 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 1170.18 defines the term “unreasonable risk of danger to public safety,” and subdivision (b) of the statute lists factors the court must consider in determining ...
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