Opinion
C079556
09-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES JUSTIN JEWKES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.111, prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM042665) OPINION ON TRANSFER
This case returns to us on transfer from the California Supreme Court for reconsideration. Three years ago, we affirmed defendant James Justin Jewkes's sentences for possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and for failing to appear in court while out of custody on the methamphetamine offense (Pen. Code, § 1320, subd. (b)). Both offenses originally resulted in felony convictions, though, at the time of sentencing, the trial court redesignated defendant's drug offense as a misdemeanor. It did so in light of the passage, shortly after defendant's drug conviction, of Proposition 47 (the Safe Neighborhoods and Schools Act)—a ballot measure that reclassified as misdemeanors certain offenses that previously were chargeable as felonies, including the drug offense that defendant was charged with committing. The trial court sentenced defendant to three years in prison on the felony failure to appear offense and to a concurrent one-year sentence on the now misdemeanor drug offense.
Undesignated statutory references are to the Penal Code.
In our first review of this case, defendant argued, among other things, that the trial court erred by failing to reduce his failure to appear offense to a misdemeanor. He reasoned that because his drug offense had been reduced to a misdemeanor under Proposition 47, his related failure to appear offense should similarly be reduced to a misdemeanor. But we disagreed and, with one exception, we affirmed the judgment.
The California Supreme Court has now asked that we reconsider our decision in light of People v. Lara (2019) 6 Cal.5th 1128 (Lara). On reconsideration, we reach the same result, though for substantially different reasons. We thus again reject defendant's argument under Proposition 47. We also reject his contention that the abstract of judgment wrongly describes those assessments he is required to pay. But because we find the abstract of judgment includes a clerical error, we remand the matter for correction of that error. We affirm the judgment as modified.
PROCEDURAL BACKGROUND
In October of 2014, defendant pleaded no contest to felony possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). At the time of his plea, a violation of this section was a "wobbler"—meaning it could be charged and punished as either a felony or a misdemeanor. (See People v. Buycks (2018) 5 Cal.5th 857, 871, fn. 1 (Buycks).)
The court scheduled his sentencing hearing for January of 2015, and in the meantime, allowed him to stay out of custody on his own recognizance. Defendant failed to show for his sentencing hearing, and as a result, the prosecution filed a new complaint against him under section 1320, subdivision (b)—which provides that "[e]very person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony."
Defendant was afterward arrested on the new complaint and, in April of 2015, pleaded no contest to the charge for failing to appear in court. The following month, the court sentenced defendant on both his drug offense and his failure to appear offense. It sentenced him to three years on the failure to appear offense and, after redesignating the drug offense as a misdemeanor under Proposition 47, sentenced him to a concurrent one-year term on the drug offense.
Defendant timely appealed his conviction for failing to appear, raising two claims. In his opening brief, he contended an error in the abstract of judgment wrongly exposed him to duplicate assessments. In a supplemental brief, he added that the trial court should have reduced his felony conviction for failing to appear to a misdemeanor under Proposition 47.
On our first review, we rejected both his contentions—though we found the abstract of judgment should be corrected for a different reason. Defendant afterward successfully petitioned the California Supreme Court for review, and in June of 2019, it transferred the matter back to this court for our reconsideration in light of new case law concerning Proposition 47.
DISCUSSION
A. Proposition 47
We begin with defendant's claim under Proposition 47. "[A]t the November 4, 2014 General Election, California voters approved Proposition 47." (Buycks, supra, 5 Cal.5th at p. 877.) "The measure amended portions of the Health and Safety Code and the Penal Code to reclassify certain drug possession and theft-related offenses from felonies or wobblers to misdemeanors, with limited exceptions for those offenders having certain prior convictions that are not relevant in the present matters." (Ibid.) One of those offenses was Health and Safety Code section 11377, which prohibits the possession of certain drugs. Once either a felony or a misdemeanor, violations of that statute are now generally misdemeanors under Proposition 47. (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1105.) "In addition to prospectively reducing the penalty for these offenses, Proposition 47 also permitted eligible defendants who were serving felony sentences as of the measure's effective date to retroactively obtain relief by petitioning for recall of sentence and requesting resentencing." (Lara, supra, 6 Cal.5th at pp. 1130-1131.) Under Proposition 47's resentencing procedure, those defendants who successfully petition for resentencing are entitled to have their former felony conviction "considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)
Relying on Proposition 47's resentencing provision, defendant filed a "petition for resentencing" under section 1170.18 before his sentencing. Based on that petition, the trial court reduced defendant's drug conviction under Health and Safety Code section 11377, which was originally a felony, to a misdemeanor at the time of his sentencing. But it kept defendant's failure to appear conviction as a felony, and no party objected to this arrangement at the time.
On appeal, however, defendant contended that because his drug offense was reduced to a misdemeanor, his felony failure to appear offense should also be reduced to a misdemeanor. He reasoned that, in light of the reduction of his drug offense, he only violated section 1320, subdivision (a)—which prohibits persons from failing to appear in court as required after being charged with or convicted of a misdemeanor—not section 1320, subdivision (b)—which prohibits persons from failing to appear in court after being charged with or convicted of a felony.
We disagreed with defendant's position in our initial review, and we disagree still on reconsideration. But in light of subsequent California Supreme Court case law, our reasoning is substantially different.
1. Our initial opinion and the California Supreme Court's recent decisions in Lara and Buycks
In our initial review, we found defendant's successful petition to redesignate his drug conviction as a misdemeanor had only a prospective effect. We thus concluded that his drug conviction remained a felony at the time he failed to appear, as this occurred before the redesignation of his drug offense, and so his failure to appear also remained a felony under section 1320, subdivision (b).
But case law since our decision—in particular, Lara and Buycks—has undermined our reasoning in several respects.
First, as Lara shows, our decision incorrectly assumed that defendant could petition to reduce his drug conviction to a misdemeanor under Proposition 47. Again, Proposition 47 benefitted both future defendants and those already serving sentences for certain offenses. The former are entitled to initial sentencing under the measure's reduced penalty regime, and the latter can petition to be resentenced under Proposition 47. (Lara, supra, 6 Cal.5th at pp. 1130-1131.) Defendant, at the trial level, had sought to benefit under the latter petitioning process, and so he filed a petition for resentencing on his drug offense. Assuming that approach was proper in our initial review, we then considered whether he was entitled to have his conviction for failing to appear reduced to a misdemeanor based on his successful petition on his drug offense. But defendant was not even eligible to petition to seek resentencing. Proposition 47 allows "[a] person who, on November 5, 2014, was serving a sentence for a conviction" to "petition for a recall of sentence" and "request resentencing" under those statutes that Proposition 47 amended, including, as relevant here, Health and Safety Code section 11377. (§ 1170.18, subd. (a).) Defendant, however, was not "serving a sentence for a conviction" on November 5, 2014. "By its terms, then, the resentencing provision in section 1170.18 does not apply to him." (Lara, supra, 6 Cal.5th at p. 1135.)
Our decision also mistakenly found Proposition 47 had a strictly prospective effect—a conclusion Lara and Buycks have since rejected. New criminal laws generally operate only prospectively, unless the enacting body "expressly" declares a contrary intent. (§ 3.) But not always. "[U]nder [In re Estrada (1965) 63 Cal.2d 740 (Estrada)], ' "[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].' [Citations.]" (Lara, supra, 6 Cal.5th at p. 1134; see also People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 ["a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
Applying this principle to Proposition 47, a measure plainly intended to mitigate punishment, the California Supreme Court in Lara and Buycks found Proposition 47 should be applied retroactively for two categories of defendants. The first concerns defendants already serving a felony sentence, but under a judgment that was not yet final at the time of Proposition 47's effective date. Those defendants, if they successfully petition to be resentenced under section 1170.18, are entitled to have their once felony conviction considered a "misdemeanor for all purposes" both prospectively and retroactively. (Buycks, supra, 5 Cal.5th at p. 876.) The second concerns defendants who, like defendant here, were not yet sentenced at the time of Proposition 47's effective date. These defendants are entitled to initial sentencing under the "applicable ameliorative provisions of Proposition 47" (in our case, Health and Safety Code section 11377), even if they committed their offense well before the measure took effect. (Lara, supra, 6 Cal.5th at p. 1135.)
Considering this new precedent, then, our review of defendant's claim should not have considered the potential effect of his petition for resentencing—something he had no right even to file. We instead should have considered, under Estrada and Lara, the extent that defendant benefitted from the retroactive application of Health and Safety Code section 11377, as amended by Proposition 47.
2. Reconsideration in light of Lara
With that background, we now consider on transfer whether the retroactive application of Proposition 47, as discussed in Lara, entitles defendant to relief for his felony failure to appear conviction. We conclude it does not.
Under Estrada's principles, as applied in Lara, "[d]efendants who had not yet been sentenced as of Proposition 47's effective date are entitled to initial sentencing under Proposition 47's amended penalty provisions," even if they committed their offense well before the measure took effect. (Lara, supra, 6 Cal.5th at p. 1131.) Applying that rule here, we find defendant was entitled to "initial sentencing" for his drug offense under Health and Safety Code section 11377, as amended by Proposition 47, rather than under section 11377 as it stood at the time he committed his offense. And appropriately, he was sentenced under the amended law. The trial court designated his felony conviction for the drug offense as a misdemeanor conviction at the time of sentencing, and then sentenced him accordingly.
Defendant's conviction for failing to appear is a different matter. That offense was a felony because he had been convicted of a felony drug offense, rather than a misdemeanor, at the time he failed to appear. Those facts have not changed since Proposition 47's passage, even under Estrada. Application of Estrada does not retroactively change these facts or any facts at all in this case. It instead retroactively changes the applicable law. Under Estrada, we presume Health and Safety Code section 11377, as amended by Proposition 47, retroactively supplied the applicable law for defendant's drug offense. (See Lara, supra, 6 Cal.5th at p. 1135.) Based on this change, defendant's initial felony conviction for his drug offense was thus defective in a way, because, in our retroactive application of Proposition 47, his conviction should instead have been for a misdemeanor. But although defective in that sense, the felony drug conviction was, even under Estrada, still a felony conviction at that time. And so, even after Proposition 47, and even after the trial court later reduced defendant's felony drug conviction to a misdemeanor, it still remains true that defendant was convicted of a felony at the time he failed to appear in court as required.
Under the plain text of section 1320, then, defendant was appropriately charged with and convicted of a felony failure to appear. Section 1320, subdivision (b), in relevant part, makes it a felony for a "person who is . . . convicted of the commission of a felony" to later fail to appear in court after being released from custody on his or her own recognizance. Nothing on the face of section 1320 suggests a legislative intent to limit its reach if the felony the defendant is "convicted of" is later reduced or set aside. The statute, after all, refers to defendants who fail to appear after being "convicted of the commission of a felony," not defendants validly convicted of the commission of a felony. (Cf. In re Watford (2010) 186 Cal.App.4th 684, 690 (Watford) [statute requiring a person "convicted" of one of several enumerated sex crimes to register as a sex offender was not contingent on the conviction being "valid"; nothing in the relevant statute modified the word "convicted" to support that construction].) Indeed, as we have suggested before, section 1320 is not concerned with the merits of the underlying offense that required the defendant's appearance in court; it is instead "grounded in the violation of a contractual agreement between a defendant and the [court]." (People v. Jenkins (1983) 146 Cal.App.3d 22, 28; cf. Buycks, supra, 5 Cal.5th at pp. 891-892 [noting the primary purpose of § 1320.5, a statute that is nearly identical to § 1320, is to deter defendants from skipping court while out on bail, and thus is not concerned with the ultimate disposition of the underlying offense that required the court appearance].) Consistent with this understanding of section 1320, we thus find the Legislature intended defendants to be punished for failing to appear in court as promised, no matter the merits of the underlying offense that required their appearance.
Section 1320.5, like section 1320, targets defendants who fail to appear after being "charged with" or, as in our case, "convicted of" a crime. But while section 1320 concerns defendants who are "released from custody on [their] own recognizance," section 1320.5 concerns defendants who are "released from custody on bail."
Other courts have reached similar conclusions in similar contexts. Take, for example, Watford, supra, 186 Cal.App.4th 684. The defendant there was convicted of a sex offense and then, decades later, convicted for failing to register as a sex offender. (Id. at p. 686.) He afterward successfully moved to set aside his sex offense conviction and, on that basis, sought to have his conviction for failing to register also set aside. (Id. at p. 687.) But we rejected his request. As we explained, the requirement to register as a sex offender "applies to any person 'convicted' of one of the enumerated sex crimes in this state or an equivalent crime in another state. The term is unadorned by any modifier, such as 'final judgment' or 'valid.' " (Id. at p. 690.) Our analysis of the defendant's claim thus turned on whether he was convicted of one of the enumerated sex crimes, not whether he was validly convicted, "at the time of the failure to register." (Ibid.) And because he was at that time, even though his sex offense conviction was later set aside, we found he had no ground for relief. (Id. at p. 694.)
The United States Supreme Court in Lewis v. United States (1980) 445 U.S. 55 similarly found a defendant could be convicted of violating a federal statute barring any person who " 'has been convicted . . . of a felony' " from transporting a firearm, even if the defendant's felony status was based on a judgment later found defective. In the court's view, this result followed from the statute's plain text. " 'Nothing on the face of the statute,' " the court explained, " 'suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack].' [Citations.]" (Id. at p. 60.) Nor, the court found, could the defendant find any support in the legislative history. (Id. at p. 62.) As it noted, one of the senators who introduced and directed the passage of the law "repeatedly stressed conviction, not a 'valid' conviction." (Ibid.) The court thus affirmed the defendant's firearm conviction. (Id. at p. 65; see also People v. Harty (1985) 173 Cal.App.3d 493, 499-500 [following Lewis and finding a defendant could be convicted of being a felon in possession of a firearm under former § 12021, even if his predicate felony offense was later set aside].)
On similar logic, we reject defendant's argument here. To sum up our reasoning, we find his's felony drug conviction at the time he failed to appear remained, even under Estrada, a felony drug conviction at that time. Application of Estrada might have made that conviction defective on retroactive review, but it still remained a felony conviction at the time defendant failed to appear. We also find the later redesignation of his drug conviction as a misdemeanor did not undermine his earlier felony conviction for failing to appear. Considering the plain text of section 1320, we conclude the Legislature intended convictions under section 1320 to remain even if they were premised on another offense that was later set aside or was, as occurred here, later reduced to a misdemeanor. For these reasons, we reject defendant's claim under Proposition 47.
B. Court Operations Assessments and Conviction Assessments
We consider next defendant's objection to the trial court's imposed assessments. In its oral pronouncement of sentence, the trial court ordered defendant to pay a $40 court operations assessment and a $30 conviction assessment for the misdemeanor offense and the felony offense. The abstract of judgment reflects that defendant is required to pay two court operations assessments and two conviction assessments. On appeal, defendant contends that the abstract of judgment contains an error because it should only reflect that he is required to pay one court operations assessment and one conviction assessment. We disagree.
We conclude that the trial court properly imposed a $30 conviction assessment and a $40 court operations assessment for the misdemeanor offense and the felony offense. The text of the relevant statutes requires an assessment be imposed on "every conviction for a criminal offense." (Gov. Code, § 70373, subd. (a)(1) ["[t]o ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense . . . in the amount of thirty dollars ($30)"]; Pen. Code, § 1465.8, subd. (a)(1) ["in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense"]; see People v. Sencion (2012) 211 Cal.App.4th 480, 483 ["The Courts of Appeal have held the court security fee and the court facilities assessment apply to each count of which a defendant is convicted"].) Accordingly, the abstract of judgment correctly reflects that defendant must pay two conviction assessments and two court operations assessments. However, because the abstract of judgment contains a clerical error, we conclude that remand for correction of that error is appropriate.
While there is no authority requiring a misdemeanor offense to be included on the abstract of judgment, this appeal could have been avoided had the trial court included the misdemeanor offense on the abstract of judgment and separately listed, with the statutory basis, all the fines, fees, and penalty assessments imposed for that offense. By lumping together all the fines, fees, and penalty assessments imposed for the felony offense and the misdemeanor offense, the abstract of judgment appears to reflect that certain fees were improperly duplicated.
It is the oral pronouncement of the court that is the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) "All fines and fees [orally imposed at sentencing] must be set forth in the abstract of judgment" because it " ' " 'digest[s] or summarize[s]' " ' " the judgment, and without such specification the Department of Corrections and Rehabilitation "cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.]" (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Any discrepancy between the judgment as orally pronounced and the abstract of judgment is presumed to be the result of clerical error. (Ibid.; People v. Mitchell (2001) 26 Cal.4th 181, 185.) When the abstract of judgment does not accurately reflect the oral pronouncement of sentence, an appellate court may order it corrected. (People v. Zackery (2007) 147 Cal.App.4th 380, 385-386, 388-389; see Mitchell, at p. 185 [an abstract of judgment is not judgment of conviction and does not control if different from the trial court's oral judgment; it is proper and important to correct such errors in abstracts of judgment].)
At sentencing, the trial court stated: "The restitution fine in the misdemeanor case will be $150. The suspended amount will be $150." However, the abstract of judgment does not list any fine in the amount of $150. Although unclear, it appears from the record that the trial court intended to impose two separate fines in the amount of $150. While the imposition of a separate restitution fine for the misdemeanor offense (in addition to the $300 restitution fine imposed for the felony offense) is appropriate (People v. Soria (2010) 48 Cal.4th 58, 62-66), a matching but suspended $150 fine is not authorized under sections 1202.44 or 1202.45. Defendant was not granted probation for the misdemeanor offense, and he is not subject to a period of parole for that offense. Thus, neither a probation revocation fine (§ 1202.44) nor a parole revocation fine (§ 1202.45) is appropriate.
DISPOSITION
This matter is remanded with directions to the trial court to prepare a corrected abstract of judgment in accordance with this opinion. The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
HOCH, J.