Filed 10/20/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
STEVENSON BUYCKS,
Defendant and Appellant. B262023
(Los A ngeles County Super. Ct. No. NA097755)

APPEAL from a judgment of the Superior Court of Los Angeles County, James Otto, Judge. Affirmed, as modified.

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

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

* * * * * *2

On November 4, 2014, v oters 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 genera ted 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 dr ug 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 Neighborhood s and Schools Act” ( Aug

. 2015) p. 6 (hereafter
Couzen s & 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, c ommitte d 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 pursua nt to Penal Code section 12022.1, subdivision (b), which applies when a defendant commits a second felony while
out on ba il on an earlier felony

. After v oters passed Proposition 47, the trial court in the first case granted appellant’s petition to reduce his narcotics offense to a misdemeanor. Thereafter, t he court in the second case reduce d his petty theft with a prior count to a
misdemeanor. The second evading police felony count remained, and
, b ecause appellant’s original sentence was structured aroun d 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 12022.1 enhancement. Enacted as part of Proposition 47, Penal Code se ction 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 re imposing the on

- bail
enhancement in Penal Code section 12022.1 in the second case after the felony in the first3

case had been reduced to a misdemeanor. As we shall explain, because appellant was subject to a full resentencing in his second c ase, 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 12022.1 enhancement and the court erred by reimposi ng it. W e strike the on

- bail enhancement and affirm the judgment as modified.
PRODECURAL BACKGROUND
A ppellant 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 o n 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 co ntest on August 8, 2014 , to petty theft with a prior (Pen. Code, § 666, subd. (a) ; 1 count 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) , a nd he had served two prior prison terms ( § 667.5, subd. (b)). With count 3 as the principal term, h e 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 coun t 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 convict ion in count 3 to a misdemeanor. The court then restructure d his

1 All undesignated statutory citations are to the Penal Code unles s otherwise noted.4

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 enhan cement 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 rel eased 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 12022.1 are 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 wh ich 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, sub d. (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 Proposit ion 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 lists5

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 ( Rivera ).) As noted above, s ection 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.) “‘“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, ‘th eir 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 t he 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 harmoniz es 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 j udicially 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.)
The precise issue in this case is whether the voters intended section 1170.18, subdivision (k) to preclude the trial court from re imposing the on

- bail enhancement when
it resentenced appellant in his second case after his felony in the first case was reduced to
a misdemeanor. W e think they did
, because appellant was subject to a full resentencing
in the second case. (See Couzens & Bigelow, Proposition 47, supra , at p. 57 [ “ Because the Proposition 47 count is part of a multiple

- coun t sentencing scheme, changing the6

sentence of one count fairly puts into play the sentence imposed on non

- Proposition 47 counts, at least to the extent necessary to preserve the original concurrent/consecutive sentencing structure. The purpose of section 1170.18 is to take the defendant back to the time of the original sentencing and resentence him with the Proposition 47 count now a
misdemeanor

. ” (Italics added.) ; id. at p. 59 [ “ If the petitioner is resentenced as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other counts, the court should resentence on all counts. ” ]; cf. § 1170.18, subd. (b) [“If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be
recalled and the p etition er resentenced to a misdemeanor

. ” (I talics added. ) ]; People v.
Navarro (2007) 40 Cal.4th 668, 681 [finding full resentencing on all counts was appropriate “so the trial court can exercise its sentencing discretion in light of the changed circumstan ces”].) Because the court was sentencing appellant anew, it was required to reevaluate the applicability of section 12022.1 at that time. By then, appellant’s felony in the first case had been reduced to a misdemeanor. In that circumstance, the plain la nguage of section 1170. 18, subdivision (k) directed that appellant’s prior felony must be treated as a “misdemeanor for all purposes

. ” Since the plain meaning of section 12022.1 required that both the primary and secondary offenses
be felonies in order fo r appellant to incur the additional penalty, the court could not reimpose the section 12022.1 enhancement

. This case is analogous to People v. Park (2013) 56 Cal.4th 782 ( Park ) , in which our high court interpreted the nearly identical phrase in s ection 17 , subdivision (b) to preclude imposition of a sentencing enhancement based on a prior “wobbler” conviction
that had been reduced to a misdemeanor . In Park , defendant was found guilty of attempted voluntary manslaughter and admitted he had a prior serious felony conviction pursuant to section 667, subdivision (a), which had been previously reduced to a misdemeanor pursuant to section 17, subdivision (b)(3). ( Park
, at pp. 787

- 788.) Section 17, subdivision (b)(3) governs the procedure for reducing felony “w obbler” offenses to misdemeanors: “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of7

subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶]

. . . [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” In finding the trial court could not impose the enhancement, the court explained that “[i]t is evident from the statutory language that a wobbler becomes a ‘m isdemeanor for all purposes’ under section 17(b)(3) only when the court takes affirmative steps to classify the crime as a misdemeanor. When the court properly has exercised its discretion to reduce a wobbler to a misdemeanor under the procedures set fort h in section 17(b), the statute generally has been construed in accordance with its plain language to mean that the offense is a misdemeanor ‘for all purposes.’” ( Park
, at p. 793.) Nothing in the language or history of section 667, subdivision (a) signal ed an intent to override that general rule. ( Park
, at
p. 799.) As noted above, the voters are deemed to have been aware of Park ’s interpretation
of the phrase “it is a misdemeanor for all purposes” in section 17, subdivision (b), so their
use of almost i dentical language in section 1170.18, subdivision (k) signaled their desire to have the statutes construed consistently. ( Rivera, supra, 233 Cal.A pp.4th at p. 1100.) Hence, a s in Park
, after appellant obtained a reduction of his offense in the first case to a misdemeanor
, section 1170.18, subdivision (k) required the court to treat that offense as a “misdemeanor for all purposes” at his resentencing in the second case . Without a felony

as a primary offense, the court could not re impose the on

- bail enhanc ement. (See also People v. Flores (1979) 92 Cal.App.3d 461, 47 1

- 47 2 [rejecting imposition of prior felony enhancement after felony had been legislatively reduced to misdemeanor and Legislature
directed the offense “‘shall not be considered

. . . for any p urposes’”].) 2

2 It is important to note this case does not involve a collateral challenge to an on

bail enhancement not otherwise part of a resentencing in a second case. That could raise different issues and suggest a different conclusion, points we do not address here.8

Respondent suggests the voters did not intend Proposition 47 to affect the imposition of the on

- bail enhancement because, “[u]nlike the theft and drug

- possession offenses enumerated in [Proposition 47], section 12022.1 is intended to penaliz e a defendant for taking advantage of the bail system to commit more crimes when he or she was already charged with a crime

. ” That may be the general purpose behind section 12022.1, but “[t]he more specific purpose of the on

- bail enhancement is to ‘discou rage a certain type of recidivist behavior,’ by deterring ‘the commission of new felonies by persons released from custody on an earlier felony .’” ( People v. Ormiston (2003) 105 Cal.App.4th 676, 687, italics added; see People v. McClanahan (1992) 3 Cal.4t h 860, 871 [The on

- bail enhancement is “imposed for the violation or breach of the court’s trust
involved when the defendant commits a new felony offense while released from custody on bail or on his or her own recognizance on an earlier felony

. ” (I talics added. )] .) To that end, the Legislature exempted at least four categories of defendants from the on

- bail
enhancement based on the disposition of their underlying offenses: (1) A s a sentencing
enhancemen t , rather than a substantive offense, it exempts d efendants who are not convicted of an underlying offense

. ( S ee People v. Walker (2002) 29 Cal.4th 577, 582 [“[S]ection 12022.1 does not define a criminal offense; instead, it identifies circumstances under which a defendant charged with a substantive offe nse is subject to a sentence enhancement.”]. ) (2) B ecause it is limited to primary and secondary felony offenses, it exempts defend ants convicted of misdemeanors. (3) I t exempts defendants who are not ultimately convicted of the primary offense

. ( I d. at p. 586 [“Although section 12022.1, strictly speaking, does not appear to make the defendant’s conviction of the primary offense an element of the enhancement in order to prove the enhancement, the statute makes crystal clear that imposition of the enhan cement requires the conviction of the primary offense at some stage of the proceedings.”]. ) (4) And i t exempts defendants whose primary offense conviction is reversed on appeal and not retried

. ( S ee § 12022.1, subd. (g) [“If the primary offense convicti on is reversed on appeal, the enhancement shall be suspended pending retrial of that felony. Upon retrial and reconviction, the enhancement shall be reimposed. If the person is no longer in custody9

for the secondary offense upon reconviction of the prima ry offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.”]

. ) 3 In light of these exclusions, “the Legislature evidently views those who qualify under
section 12022.1

— defendants convicted of both th e primary felony and the secondary felony

— as being particularly deserving of increased punishment for their on

- bail recidivism.” ( Walker, supra
, at pp. 583

- 584, italics added.) Proposition 47, in turn, was designed to “ensure that prison spending is focu sed 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 achieve that end, the measure “[r]equire[s] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.” (Ballot Pamp., Gen. Elec. (N ov. 4, 2014) text of Prop. 47, § 3, p. 70.) These purposes would be u ndermined if a defendant whose primary
offense under section 12022.1 is reduced to a misdemeanor

— thereby avoiding a lengthier and costlier state prison term for the substantive offense v oters sought to avoid

— but must still serve two years for the on

- bail enhancement under section 12022.1 as part of a resentencing for a later felony conviction. Thus, it is reasonable to conclude that the

voters intended to treat a defendant whose primary offense is reduced to a misdemeanor under Proposition 47

— which thereafter “shall be considered a misdemeanor for all purposes” ( § 1170.18, subd. (k))

— like the other categories of defendants excluded from

3 The parties agree section 12022.1, subdivision (g) prevents the imposition of the

on

- bail enhancement if the underlying offense is reversed on appeal and not retried. Respondent attempts to distinguish section 12022.1, subdivision (g) from Proposition 47 because Proposition 47 created statutorily reduced penalties “unrelated to appellant’s guilt or innocence.” Respondent’s premise is flawed

— appellate courts reverse convictions and district attorneys choose not to retry cases all th e time for reasons unrelated to the defendant’s guilt or innocence. Likewise, although a defendant under Proposition 47 is not blameless, he or she falls within the class of nonviolent criminals the voters sought to affect with Proposition 47.10

the on

- bail enhancement based on the disposition of their offenses, and thereby exclude them from eligibility for the on

- bail enhancement at resentencing on the secondary
offense.
DISPOSITION
The two

- year on

- bail enhancement pursuant to section 12022.1 is stricken. The
trial court is directed to forward t he corrected abstract of judgment to the Department of
Corrections and Rehabilitation. As modified, t he judgment is affirmed.

FLIER, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.