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Filed 10/21/15 P. v. Fowler CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Appellant,

v.
TIMOTHY JOSEPH FOWLER, JR.,

Defendant and Respondent. C078363
(Super. Ct. No. CM041808)

The People appeal the trial court’s order reducing defendant Timothy Joseph
Fowler , Jr. ’s felony failure to appear to a misdemeanor under the Safe Neighborhood s and Schools Act (Proposition 47). They contend this reduction was an improper expansion of Proposition 47. We agree and shall reverse.

PROCEDURAL BACKGROUND The Butte County District Attorney c harged defenda nt with felony possession of a controlled substance ( Health & Saf

. Code , § 11377, subd

. (a) ) and misdemeanor child2

abuse (Pen. Code, § 273a, subd. (b))

. 1 Defendant was released on his own recognizance. On July 23, 2014, defendant failed to appear on thos e charges. On August 20, 2014, the district attorney filed a felony complaint alleging defendant had failed to appear on a felony charge of possession of a controlled substance. ( Pen. Code, § 1320, subd. (b).) 2

Following the passage of Proposition 47 in November 2014, the trial court reduced both the controlled substance conviction and the failure to appear charge to misdemeanors. Defendant then pleaded guilty to all three misdemeanor counts, including misdemeanor failure to appear. The trial court g ranted defendant four years of formal probation. The People filed a timely appeal. (§ 1238, subd. (a)(1), (5) & (6).) Defendant did not file a respondent’s brief.

DISCUSSION The People contend the trial court’s action was unauthorized, as it improper ly expanded the scope of Proposition 47. We agree.
We recently decided this precise issue in People v. Eandi (2015) 239 Cal.App.4th 801 ( Eandi ) ( petn. for review pending, petn. filed Sept. 22, 2015 , S229305) and People v.
Perez (2015) 239 Cal.App.4th 24, 32 ( petn. for review pending, petn. filed Sept. 3, 2015 , S229046). We recognize these decisions are not yet final, but continue to find their reasoning persuasive and will follow it here. Proposition 47 explicitly reduced a number of specific offenses f rom felonies to misdemeanors. Section 1320 is not among those offenses expressly included in the text of Proposition 47. ( Eandi , supra , 239 Cal.App.4th at p. 804.) “Failure to appear is a crime of deceit that is premised on a defendant’s breach of a con tractual agreement.

1 The facts underlying defendant’s other offenses are not relevant to any issue raised on appeal, and are therefore not recounted here.

2 Undesignated statutory references are to the Penal Code.3

[Citation.] Because it is the breach of this promise that is the gist of the offense, the ultimate disposition of the underlying offense is immaterial. [Citation.] As a result, the true question is whether [Proposition 47] has a col lateral retroactive effect such that the pending felony drug possession charge at the time of the breach of promise of failure to

appear in [Ju ly 2014] became a misdemeanor as a matter law retroactively, thereby negating a necessary statutory element of fa ilure to appear on a felony charge: having
been ‘ charged with

. . . the commission of a felony.’ ” ( Eandi , at p. 805.) 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. ( Ibid .) In Ju ly 2014, when defendant failed to appear, there was a felony charge pending against him for which he had promised to appear. “The initiative did not purport to exercise a power to go back in

time and alter the fe lony 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 sentenc e. Prior felony convictions remain such absent a petition; we do not
discern .

. . any cogent reason why a then pending felony charge should transform to a misdemeanor as a matter of law for purposes of its collateral effect on a different offense.” ( Ean di , at pp. 805

- 806, fn. omitted.) “[T]he felony status of an offense at the time charges were filed with the trial court remained unchanged notwithstanding the November 2014 enactment [of Proposition 47] .

. . .” ( Id. at p. 806.)

The trial court there fore lacked authority to amend the felony complaint to redesignate the offense as involving failure to appear on a pending misdemeanor charge. We must set aside the order of probation and remand for further proceedings.4 DISPOSITION The judgment (order o f probation) is vacated. The matter is remanded to the trial court for further proceedings on the charge of failur e to appear on a felony charge.

BUTZ , Acting P. J.

We concur:

MAURO , J.

RENNER , J.