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Filed 5/ 6 /16 P. v. Parks CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v. GRANT PARKS,

Defendant and Appellant. C078737 (Super. Ct. No. SF121420A)

Defendant Grant Parks appeals from the trial court’s denial of his Penal Code
section 1170.18 1 (Proposition 47) petition for resentencing on his conviction for felony failure to appear. ( § 1320, subd. (b).) He contends that the conviction should have been reduced to a misdemeanor because the offense underlying the failure to appear charge
had been reduced to a misdemeanor pursuant to section 1170.18. However, section

1 Undesignated statutory references are to the Penal Code.2

1170.18 does not apply to a felony failure to appear . The section was not intended to, and does not, provide for collateral retroactive effect as to offenses not specifically covered by it. We shall affirm the judgment

. BACKGROUND In March 2012, defendant was arrested after leaving a Food 4 Less store without paying for various items that were worth a total of $23.14. He pleaded guilty to petty theft with a prior ( § 666) and admitted a prior prison term ( § 667.5, subd. (b)) in case
No. SF119845A. Defendant did not appear fo r sentencing in August 2012, and he subsequently pleaded guilty to felony failure to appear and admitted a strike allegation (§ § 667, subd s . (b)

- (i), 1170.12, subd s . (a)

- (d)) in case No. SF121420A. He was sentenced to five years eight months in state pris on. Defendant appealed the convictions, but later abandoned his appeal. Defendant subsequently filed a section 1170.18 petition as to the petty theft with a prior and failure to appear convictions. The trial court denied the petition as to the failure to appear offense and, on the People’s motion, modified the petty theft with a prior offense to shoplifting ( § 459.5), and sentenced him to 10 days in jail with 10 days of

c redit on the shoplifting coun t. DISCUSSION Defendant contends that the reduction to a misdemeanor of the offense underlying his felony to appear conviction mandates reducing that conviction to a misdemeanor as
well. 2 We disagree. The passage of Proposition 47 (the Act) created sect ion 1170.18, which provides for any defendant “currently serving a sentence for a conviction .

. . of a felony or

2 This issue is currently before the California Supreme Court. (See People v. Eandi (2015) 239 Cal.App. 4th 801 , review granted Nov. 18, 2015, S229305 ; People v. Perez (2015) 239 Cal.App. 4th 24 , review granted Nov. 18, 2015, S229046 .)3

felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition f or a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing .

. .” under the statutory framework as amended by the passage of Proposition 47. ( § 1170.18, subd. (a); see Voter Informatio n Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73

- 74.) “ Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, e xcept that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. ” ( § 1170.1 8, subd. (k).) The crime of failure to appear is a misdemeanor or felony if the defendant failed to appear on a felony charge , but is a misdemeanor if the defendant failed to appear for a misdemeanor charge. ( § 1320, subd. (b).) Defendant asserts that t he “all purposes” language in subdivision (k) mandates the retroactive application of section 1170.18 , which in turn requires that the failure to appear conviction be reduced to a misdemeanor
since the underlying petty with a prior charge was reduced to a misdemeanor pursuant to
section 1170.18. Finally, he claims that retroactive application of section 1170.18 is consistent with the rule that laws reducing punishment for crimes are presumptively retroactive (see In re Estrada (1965) 63 Cal. 2d 740 ( Estrada )) and with the Act’s primary

purpose. This is not a case of the direct application of the Act, as failure to appear is not one of the offenses included in its text or the analysis of the Legislative Analyst. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) p p. 35

- 36, 71

- 73.) The Act achieves its intended purpose, the reduction of certain crimes from felonies or wobblers to
misdemeanors , in two ways. It does so prospectively by reducing the punishment for the
covered crimes as of its effective date. Retroactive application is limited to petitions for4

resentencing by prisoners serving a sentence for one of the six enumerated crimes covered by the Act. ( § 1170.18, subds. (a)

- (c), (i).) Persons who completed the sentence
for one of the enumerated offenses could petition to have the prior conviction designated as a misdemeanor. ( § 1170.18, subds. (f), (g), (i).) Because the crime of failure to appear is premised on defendant’s breach of contract ( People v. Jenkins (1983) 146 Cal. App.3d 22, 28), wh ether a defendant is convicted of the underlying offense is immaterial to the disposition of the failure to appear charge. (Cf. People v. Walker (2002) 29 Cal. 4th 577, 583 [it is the legislative view that punishment for jumping bail under § 1320.5 is prop er regardless of the dispositi on of the underlying offense].) Therefore, the real question here is whether the Act provides collateral retroactive relief transforming the pending felony petty theft with a prior charge to a misdemeanor at the time defendan t did not appear for sentencing on that crime in August 2012. Subdivision (k) of section 1170.18 was interpreted in the context of felony jurisdiction over criminal appeals in People v. Rivera (2015) 233 Cal. App.4th 1085 ( Rivera )

. Rivera found that secti on 1170.18, subdivision (k), which parallels the language from section 17 regarding the reduction of wobblers to misdemeanors, 3 should be interpreted in the same way as being prospective, from that point on, and not for retroactive purposes. ( Rivera , at p

. 1100; see also People v. Moomey (2011)
194 Cal. App.4th 850, 857 [rejecting assertion that assisting a second degree burglary after the fact does not establish the necessary element of the commission of an underlying felony because the offense is a wobble r: “Even if the perpetrator was subsequently

3 Section 17, subdiv ision (b) states in pertinent part: “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 of subdivision (h) of Section 1170, or by fine or imprisonmen t in the county jail, it is a misdemeanor for all purposes under the following circumstances

. . . .”5

convicted and given a misdemeanor sentence, the misdemeanant status would not be given retroactive effect”].) The court in Rivera accordingly concluded that the felony status of an offense charged as a felony did not change after the Act was passed, thereby conferring jurisdiction on the Court of Appeal. 4 ( Rivera , at p p. 1094

- 1095, 1099

- 1101.) We see no reason to depart from Rivera

. Although Rivera addressed section 1170.18, subdivision (k) in a different co ntext, its analysis of subdivision (k) is equally relevant
here. The Supreme Court reached a similar conclusion in the context of enhancements when interpreting section 17 in People v. Park (2013) 56 Cal. 4th 782 ( Park ). In Park , the Supreme Court held that a felony conviction properly reduced to a misdemeanor under section 17, subdivision (b) could not subsequently be used to support an enhancement under section 667, subdivision (a). ( Park , at p. 798.) Applying the
reduction to eliminate an enhancemen t would be a retroactive application, which is impermissible under both section 17 and the Act. The distinction between retroactive and prospective application was recognized by the Supreme Court in Park

. “There is no dispute that, under the rule in [pri or California Supreme Court] cases, [the] defendant would be subject to the s ection 667 [ , subdivision] (a) enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor.” ( Park , at p. 8 02.) Retroactive versus prospective application was also invoked by the Supreme Court in distinguishing cases cited by the Attorney General.

4 Rivera also noted the absence of any evidence that the voters wanted to go beyond directly reducing future and past punishment for convictions under th e six included offenses. ( Rivera, supra , 223 Cal.App.4th at p. 1100 [“Nothing in the text of Proposition 47 or the ballot materials for Proposition 47

-- including the uncodified portions of the measure, the official title and summary, the analysis by the l egislative analyst, or the arguments in favor or against Proposition 47

-- contains any indication that Proposition 47 or the language of section 1170.18, subdivision (k) was intended to change preexisting rules regarding appell ate jurisdiction”].)6

“None of the cases relied upon by the Attorney General involves the situation in which
the trial court has affirm atively exercis ed its discretion under section 17 [, subdivision] (b) to reduce a wobbler to a misdemeanor before the defendant committed and was adjudged guilty of a subsequent serious felony offense.” ( Id. at p p. 799

- 800.) The other arguments defendant makes in favor of retroactivity fare no better. The presumptive retroactivity of changes in the law reducing punishment for crime comes
from Estrada , which held that if an amended statute mitigates punishment, the amendment will operate retroactively to i mpose the lighter punishment unless there is a saving clause. ( Estrada, supra , 63 Cal. 2d at p. 748.) The reason for this rule was that

“ ‘ [a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser p enalty or the different treatment is sufficient to meet the legi timate ends of the criminal law.’ ” ( Id . at p. 745. ) While the electorate intended to reduce penalties for crimes when it passed the Act, it did so only for those crimes the Act specifically covers. Retroactivity is limited to the procedures set forth in section 1170.18, which in turn applies to the offen ses specifically addressed by the Act. While, as defendant notes, the Act’s stated purpose is to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession,” (Voter Information Guide, Gen. Elec. (Nov . 4, 2014) text of Prop. 47, § 3 , p. 70), and that it “ ‘shall be liberally const rued to effectuate its purposes ’ ” ( Alejandro N. v. Superior Court (2015) 238 Cal. App.4th 1209, 1222 ), those provisions do not change what is clear from the Act’s text and str ucture. The Act was not intended to, and does not, provide for collateral retroactive effect as to offenses not specifically covered by it. Since reducing defendant’s felony failure to appear conviction to a misdemeanor would require an impermissible ret roactive collateral application of the Act, the trial court correctly rejected defendant’s petition as to th e failure to appear conviction.7 DISPOSITION The judgment (order) is affirmed.

/s/ Blease, J.

We concur:

/s/ Raye , P. J.

/s/ Nicholson , J.