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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 1170.181(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 

 

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 Undesignated statutory references are to the Penal Code. 
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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 for sentencing in August 2012, and he 

subsequently pleaded guilty to felony failure to appear and admitted a strike allegation 

(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in case No. SF121420A. He was 

sentenced to five years eight months in state prison. 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

credit on the shoplifting count.

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 section 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.)
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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 for 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 Information 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, except 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.” (§ 1170.18, 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 the “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) pp. 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 for 
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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), whether 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 proper regardless of the 

disposition 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 defendant 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 section 1170.18, subdivision (k), which parallels the 

language from section 17 regarding the reduction of wobblers to misdemeanors,3should 

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 wobbler: “Even if the perpetrator was subsequently 

 

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 Section 17, subdivision (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 

imprisonment in the county jail, it is a misdemeanor for all purposes under the following 

circumstances . . . .”
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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 pp. 1094-1095, 1099-1101.) 

We see no reason to depart from Rivera. Although Rivera addressed section 1170.18, 

subdivision (k) in a different context, 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 enhancement 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 [prior California Supreme Court] cases, [the] defendant 

would be subject to the section 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. 802.) Retroactive versus prospective application was also 

invoked by the Supreme Court in distinguishing cases cited by the Attorney General. 

 

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 Rivera also noted the absence of any evidence that the voters wanted to go beyond 

directly reducing future and past punishment for convictions under the 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 legislative 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 appellate jurisdiction”].)
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“None of the cases relied upon by the Attorney General involves the situation in which 

the trial court has affirmatively exercised 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 pp. 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 impose 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 penalty or the different treatment is sufficient to meet the 

legitimate 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 offenses 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 construed 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 structure. 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 retroactive collateral application of the Act, the trial court 

correctly rejected defendant’s petition as to the failure to appear conviction.
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DISPOSITION

The judgment (order) is affirmed.

 /s/

Blease, J.

We concur:

 /s/

Raye, P. J.

 /s/

Nicholson, J.