1

Filed 3/15/16 P. v. Ferguson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for 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 LEROY FERGUSON,

Defendant and Respondent.

C078270

(Super. Ct. No. CM041680)

The People appeal from a judgment reducing defendant Timothy Leroy 

Ferguson’s conviction for a felony failure to appear (FTA) in violation of Penal Code

section 1320, subdivision (b) to a misdemeanor violation of section 1320, subdivision (a). 

(Unless otherwise set forth, statutory section references that follow are to the Penal 

Code.) 

The People argue the trial court’s action under the “Safe Neighborhoods and 

Schools Act” (the Act) (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)),
2

which did not amend, reduce, or modify section 1320, subdivision (b) constituted an 

unauthorized expansion of the scope of the Act. 

We agree with the People that the court’s decision, pursuant to the Act, to reduce 

the section 1320, subdivision (b) FTA to a violation of section 1320, subdivision (a), a 

misdemeanor, was error. We will remand for resentencing. 

DISCUSSION

On August 11, 2014, defendant was charged with failing to appear while released 

on his own recognizance in violation of section 1320, subdivision (b), a felony. The 

complaint also alleged his failure to appear brought him within the provisions of section 

12022.1 (penalty enhancement for felony committed while released from custody before 

final judgment on prior felony) thus adding two years to the penalty for a violation of 

section 1320, subdivision (b). 

On November 5, 2014, defendant pleaded no contest to a violation of section 

1320, subdivision (b) pursuant to an agreement with the People that the section 12022.1 

penalty enhancement allegation would be dismissed. 

On December 3, 2014, defendant appeared for sentencing for this offense. After 

argument, during which the People agreed that, whatever the applicability of Proposition 

47, the court had the discretion to reduce the (section 1320, subdivision (b)) offense to a 

misdemeanor pursuant to section 17, subdivision (b), the court said:

“Right now, what I would indicate is that it is my belief under Prop. 47, [section 

1320, subdivision (b)] should properly be - - should proceed as a misdemeanor under 

[section 1320, subdivision (a)]. As a fall back though, I am indicating that if an 

Appellate Court were to decide that I was wrong in the fact these are felonies under, I 

guess an equal protection and/or fairness argument, I would be inclined to reduce this 

under my discretion to a misdemeanor. [¶] . . . [¶] 
3

“As it relates [to section 1320, subdivision (b)] . . . the Court believes that under 

the recent law, pursuant to Prop. 47, this should properly be treated as a misdemeanor 

under [section 1320, subdivision (a)]. It’s hereby designating it as such. 

“I will indicate that in the event that an Appellate Court disagrees with me, I do 

think under [equal] protection [and] fairness arguments, I would be using my discretion 

under [section 17, subdivision (b)] to reduce this to a misdemeanor pursuant to 1320

(sic). That would be a misdemeanor [section 1320, subdivision (b)], but for the time 

being I am designating [it] to be [section 1320, subdivision (a)].” 

From the court’s comments quoted above, we wonder whether the court intended 

to reduce defendant’s offense to a misdemeanor under both the Act and pursuant to 

section 17, subdivision (b). But whatever the court’s intent, the abstract of judgment 

reflects that, on the court’s own motion, the section 1320, subdivision (b) offense as 

charged in count 1 of the complaint was reduced to a violation of section 1320, 

subdivision (a), a misdemeanor, pursuant to Penal Code section 1170.18, that is, pursuant 

to the provisions of Proposition 47. There is no mention of a reduction of the offense to a 

misdemeanor as authorized by section 17, subdivision (b).

The issue of whether a trial court may properly reduce a felony FTA under the Act 

is pending review by the California Supreme Court. (People v. Eandi (2015) 

239 Cal.App.4th 801, petn. for review granted Nov. 18, 2015, S229305; People v. Perez 

(2015) 239 Cal.App.4th 24, petn. for review granted Nov. 18, 2015, S229046.) We 

believe the People are correct that the trial court erroneously concluded that the Act 

applied.

Proposition 47 explicitly reduced certain, specified offenses from felonies to 

misdemeanors but section 1320 is not among those expressly included in the text of the 

Proposition. Failure to appear is a stand-alone offense of deceit that is based on a 

defendant’s breach of a contractual agreement with the People (People v. Jenkins (1983) 

146 Cal.App.3d 22, 28) and the ultimate disposition of the underlying offense is 
4

immaterial (Cf. People v. Walker (2002) 29 Cal.4th 577, 583 [punishment is proper 

regardless of the disposition of the underlying offense]). Thus, we conclude the trial 

court lacked authority to reduce defendant’s felony FTA conviction to a violation of 

section 1320, subdivision (a) under the Act.

DISPOSITION

The court’s order reducing defendant’s violation of section 1320, subdivision (b) 

pursuant to Proposition 47 is reversed. The matter is remanded to the trial court for 

further proceedings consistent with this opinion. 

 HULL , J.

We concur:

 NICHOLSON , Acting P. J.

 DUARTE , J.