Filed 6/28/16 P. v. Wallace CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063760
v. (Super.Ct.No. RIF1203213)
DECHAWN LEWIS WALLACE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed.
Sarita Ordóñez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant Dechawn Lewis Wallace pleaded guilty to one count of receiving
stolen property in violation of Penal Code section 496, subdivision (a) (all additional
statutory references are to the Penal Code), and was sentenced to eight months in state
prison to be served consecutively to a four-year sentence in another case. As part of his
guilty plea, defendant executed a waiver under People v. Harvey (1979) 25 Cal.3d 754
(Harvey), which permitted the trial court to consider dismissed counts when determining
sentence and victim restitution.
After the voters of this state adopted Proposition 47, the Safe Neighborhoods and
Schools Act, defendant petitioned the superior court to reclassify his conviction in this
case as a misdemeanor and to resentence him. Although the superior court concluded the
value of the stolen property involved in the count to which defendant pleaded guilty did
not exceed $950, the jurisdictional amount in question for misdemeanor receipt of stolen
property under Proposition 47 (§ 496, subd. (a)), it denied the petition because, in light of
defendant’s Harvey waiver, the aggregate value of the property involved in all the counts
charged in the complaint did exceed $950.
Defendant appeals, contending the superior court erred by aggregating the value of
the property involved in all the counts for which defendant was charged when it denied
the petition. The People concede the superior court was required to limit its inquiry into
the value of the property involved in the offense for which defendant pleaded guilty, and
that it erred by aggregating the value of the property involved in all counts charged in the
felony complaint. The People request we reverse the order and remand for the superior
court to determine whether defendant is eligible for resentencing under section 1170.18,
2 subdivision (b), in particular, to determine if defendant poses an unreasonable risk of
danger to public safety. In addition, if the superior court grants the petition and
resentences defendant, the People contend they are entitled to withdraw from the plea
bargain and to reinstate counts that were dismissed as part of the bargain.
We agree with defendant and with the People that the superior court erred by
denying defendant’s petition and, therefore, we reverse the order. We also agree with the
People that on remand the court may exercise its discretion to determine whether
defendant should not be resentenced because he poses an unreasonable risk of danger to
public safety. However, we conclude the People may not withdraw from the plea bargain
and reinstate dismissed charges if the superior court resentences defendant.
I.
PROCEDURAL BACKGROUND
By felony complaint, the People charged defendant with one count of receiving a
stolen credit card (§ 496, subd. (a); count 1), one count of receiving a stolen laptop
computer (§ 496, subd. (a); count 2), and two misdemeanor counts of fraudulently using
access card account information (§ 484g, subd. (a); counts 3-4). As part of a plea
bargain, defendant pleaded guilty to count 1 and executed a “Harvey waiver.” The trial
court sentenced defendant to eight months in state prison to be served consecutively with
a four-year prison sentence in case No. RIF1201005, and on the People’s motion the
court dismissed the remaining counts.
3 After the passage of Proposition 47, defendant filed a petition in the superior court
requesting his conviction be reclassified as a misdemeanor and that he be resentenced.
Using the mandatory form created by the superior court, defendant indicated he
“believ[ed] the value of the . . . property [did] not exceed $950.” In a form response, the
People argued defendant was ineligible for resentencing under Proposition 47 because the
value of the property exceeded $950. The court therefore set the matter for a hearing to
determine the amount of the loss involved.
Before the hearing, the People filed a written opposition to the petition alleging the
stolen credit card defendant admitted to receiving had a credit limit over $950 and,
therefore, he was ineligible for resentencing under Proposition 47. In addition, the
People argued that, if the superior court did grant defendant’s petition, the People should
be permitted to withdraw from the plea bargain and to reinstate the dismissed counts. In
a bench brief, defendant argued the record did not support the People’s assertion the
value of the stolen credit card exceeded $950, and the People should not be permitted to
withdraw from the plea bargain and to reinstate dismissed charges if the superior court
were to grant defendant’s petition.
At the hearing, the court asked the prosecutor whether the stolen property at issue
was a credit card. The prosecutor responded affirmatively, and the court indicated its
intention to “grant the petition based on the fact that the credit card balance limit is not a
proof of over $950.” When the court noted defendant had been ordered to pay victim
restitution of $1,800, defendant’s attorney explained defendant only pleaded guilty to
receiving a stolen credit card and the restitution order likely took into account the value
4 of the stolen laptop computer involved in a dismissed count. However, counsel argued
that, “[e]ven if the Court goes behind the record and looks at what the credit card was
used for, it was $529 at a Wal-Mart.” Based on the Harvey waiver, the court indicated
the total value of the property involved exceeded $950. Defense counsel responded that
dismissed counts “should not be used to determine what [defendant] actually pled to,”
and that the record clearly indicated the value of the stolen credit card did not exceed
$950. The court found the value of the stolen credit card “is clearly under $950,” but
concluded defendant’s Harvey waiver permitted it to consider the entire value of the
property involved in the case. Therefore, the court denied the petition.
Defendant timely appealed.
II.
DISCUSSION
A. The Trial Court Erred by Considering the Value of Property Related to
Dismissed Counts When Determining Eligibility for Resentencing Under Proposition 47
“Proposition 47 makes certain drug- and theft-related offenses misdemeanors,
unless the offenses were committed by certain ineligible defendants. These offenses had
previously been designated as either felonies or wobblers (crimes that can be punished as
either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085,
1091.) “Proposition 47 also created a new resentencing provision: section 1170.18.
Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that
is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
5 Proposition 47.” (Id. at p. 1092.) If a defendant qualifies for resentencing under
Proposition 47, the trial court shall recall the felony sentence and resentence the
defendant to a misdemeanor unless it determines, in its discretion, the defendant “would
pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b); see id.
subds. (b)(1)-(3) [listing factors to consider when determining dangerousness],
(c) [defining “‘unreasonable risk of danger to public safety’” as the risk of committing
so-called “super strike” offenses defined in § 667, subd. (e)(2)(C)(iv)].)
One of the theft-related offenses amended by Proposition 47 and expressly
governed by its resentencing provisions is receipt of stolen property. (§§ 496, subd. (a),
1170.18, subds. (a), (b).) “Every person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting theft or extortion, knowing
the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in
concealing, selling, or withholding any property from the owner, knowing the property to
be so stolen or obtained, shall be punished by imprisonment in a county jail for not more
than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if
the value of the property does not exceed nine hundred fifty dollars ($950), the offense
shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding
one year, if such person has no prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 [i.e., so-called “super
strikes”] or for an offense requiring registration pursuant to subdivision (c) of Section
290 [i.e., sex offender registration].” (§ 496, subd. (a), italics added.)
6 At the hearing on defendant’s petition, the prosecutor essentially conceded, and
the trial court expressly found, that the stolen credit card defendant admitted to receiving
was valued at less than $950. There was no allegation in the trial court or on appeal that
defendant has a disqualifying prior “super strike” conviction, that he is required to
register as a sex offender, or that he poses an unreasonable risk of danger to public safety.
The trial court’s sole reason for denying the petition was that, in light of defendant’s
Harvey waiver, the total value of the property involved in this case exceeded $950. The
People concede this was error, and we agree.
The type of aggregation employed by the trial court here was explicitly rejected in
People v. Hoffman (2015) 241 Cal.App.4th 1304 (Hoffman). The defendant in Hoffman
was charged, inter alia, with 18 counts of forging checks (§ 470, subd. (d)), but as part of
a plea bargain she pleaded guilty to only seven counts of forging checks valued between
$175 and $400. (Id. at p. 1307.) The remaining counts were dismissed and defendant
entered a Harvey waiver, which “allowed the court to consider the facts underlying the
dismissed counts ‘in determining sentence.’” (Hoffman, at p. 1307.) After the passage of
Proposition 47, which amended section 473 to provide that forgery of a check valued at
$950 or less is a misdemeanor (§ 473, subd. (b)), the defendant petitioned to have her
seven forgery convictions reclassified and resentenced as misdemeanors. (Hoffman, at
p. 1308.) The trial court denied the petition, concluding the aggregate value of the seven
forged checks exceeded $950 and, therefore, the defendant was outside the spirit of
Proposition 47. (Hoffman, at p. 1308.)
7 The appellate court in Hoffman concluded the defendant satisfied the criteria for
resentencing under section 1170.18 because she was currently serving sentences for
forgery offenses in which the checks involved did not exceed $950 in value, and because
she did not pose a risk of unreasonable danger to public safety. (Hoffman, supra, 241
Cal.App.4th at pp. 1309-1310.) The court also concluded section 473 does not authorize
a trial court to aggregate the value of multiple forged checks when determining whether
the offense is a felony or a misdemeanor. (Hoffman, at p. 1310.) Unlike section 476a,
subdivision (b), which addresses passing checks with insufficient funds and provides for
felony punishment if the “‘total amount’” of the bad checks passed exceeds $950,
“Section 473 does not employ this ‘total amount’ approach.” (Hoffman, at p. 1310.)
Although the People conceded section 473 does not authorize aggregation, they
argued the defendant’s “Harvey waiver allowed the trial court to rely on facts underlying
the dismissed forgery and grand theft counts to find that [defendant] is ‘outside the spirit’
of Proposition 47.” (Hoffman, at p. 1311.) The court disagreed. “The Harvey waiver
allowed the trial court to rely on facts underlying the dismissed counts to make whatever
sentencing determinations were authorized under section 1170.18. But only two
determinations were authorized by section 1170.18: (1) whether [defendant] meets the
statutory criteria, and (2) whether [defendant’s] resentencing would pose an unreasonable
risk of danger of a super-strike offense.” (Hoffman, at p. 1311; see id. at pp. 1308-1309.)
In contrast with the three strikes law, which permits a court to strike a prior conviction if
it finds the defendant falls outside the spirit of the law, “[t]hat is not the case with
8 Proposition 47. The trial court may not refuse to reduce a defendant’s sentence based on
the court’s notion of the statute’s ‘spirit.’” (Id. at p. 1311.)
The reasoning in Hoffman applies equally here. Section 496, subdivision (a),
provides that receipt of stolen property is a misdemeanor if the value of the property does
not exceed $950. Like section 473, section 496 does not employ a “‘total amount’”
approach when determining whether receipt of stolen property is punishable as a felony
or as a misdemeanor. (Hoffman, supra, 241 Cal.App.4th at p. 1310.) Because (1) the
value of the stolen credit card defendant admitted to receiving did not exceed $950,
(2) there is no indication defendant committed a prior super strike or is required to
register as a sex offender, and (3) there is no evidence in the record defendant is likely to
commit a super strike in the future, the trial court was not permitted to consider the facts
of dismissed charges to determine whether defendant fell outside the “‘spirit’” of
Proposition 47. (Hoffman, at p. 1311.) Therefore, we must reverse the order denying
defendant’s petition.
Although we are unable to find anything in the record to indicate defendant might
pose a risk of danger to public safety if he is resentenced, we agree with the People that
on remand the trial court may, in its discretion, make such an inquiry. (§ 1170.18,
subd. (b).) The People did not oppose the petition on the basis of dangerousness and the
court did not consider the issue in the first instance.
9 B. The People Are Not Entitled to Withdraw from the Plea Bargain and to
Reinstate Dismissed Charges if Defendant is Resentenced Under Proposition 47
Although the People concede defendant’s conviction for receiving stolen property
qualifies for resentencing under Proposition 47, they contend such a resentencing would
constitute a breach of the plea bargain on defendant’s part, which entitles the People to
withdraw from the plea bargain and to reinstate dismissed counts. That issue is currently
pending before the California Supreme Court. (Harris v. Superior Court (2015) 242
Cal.App.4th 244, review granted Feb. 24, 2016, S231489; People v. Gonzalez (2016) 244
Cal.App.4th 1058, review granted Apr. 27, 2016, S233219; People v. Brown (2016) 244
Cal.App.4th 1170, review granted Apr. 27, 2016, S233274; People v. Perry (2016) 244
Cal.App.4th 1251, review granted Apr. 27, 2016, S233287; People v. Garcia (Feb. 5,
2016, E063383) [nonpub. opn.], review granted Apr. 27, 2016, S233171.) We conclude
the People may not withdraw from the plea bargain and reinstate dismissed charges.
Section 1170.18 unambiguously applies to a defendant “currently serving a
sentence for a conviction, whether by trial or plea . . . .” (§ 1170.18, subd. (a), italics
added; see T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652 [concluding Prop. 47
“clearly and unambiguously” applies to convictions obtained by guilty plea].) The only
categorical disqualifications found in Proposition 47 are for defendants convicted of
serious or violent felonies, defendants required to register as sex offenders, and
defendants who are found to pose an unreasonable risk of committing a new violent
crime. (T.W. v. Superior Court, at p. 652.) “The statute does not otherwise automatically
10 disqualify a petitioner and nothing in section 1170.18 reflects an intent to disqualify a
petitioner because the conviction was obtained by plea agreement.” (Ibid.)
Relying on now-depublished authority, the People contend a stipulated prison term
is a fundamental assumption of a plea bargain that is binding on a defendant, and
misdemeanor sentencing under Proposition 47 would constitute a windfall to a defendant
not contemplated at the time of the plea. Moreover, relying on People v. Collins (1978)
21 Cal.3d 208 (Collins), the People contend they are entitled to withdraw from the plea
bargain and to reinstate dismissed charges because resentencing under Proposition 47
would have the effect of depriving the People of the benefit of their bargain. We disagree
with both bases of the People’s argument.
A negotiated plea bargain is a contract between a defendant and the prosecutor
and, if accepted, its terms bind the parties and the trial court. (People v. Segura (2008)
44 Cal.4th 921, 930-931.) Although the trial court retains inherent sentencing discretion,
it must impose a sentence within the bounds of the plea agreement. (Id. at p. 931.) If the
trial court disagrees with the terms of the plea agreement, it may reject it. (Id. at pp. 931-
932.) However, once the trial court has accepted a plea and imposed sentence, the
material terms of a plea bargain may not be modified without both parties’ consent.
(People v. Martin (2010) 51 Cal.4th 75, 80.)
Although the parties and the trial court may not unilaterally alter the terms of a
plea bargain, subsequent statutory enactments or amendments adopted by the Legislature
or the voters exercising the initiative power may have the effect of altering the terms of
the plea bargain. “[T]he general rule in California is that the plea agreement will be
11 ‘“deemed to incorporate and contemplate not only the existing law but the reserve power
of the state to amend the law or enact additional laws for the public good and in
pursuance of public policy. . . .”’ [Citation.] That the parties enter into a plea agreement
thus does not have the effect of insulating them from changes in the law that the
Legislature has intended to apply to them.” (Doe v. Harris (2013) 57 Cal.4th 64, 66
(Doe).) “It therefore follows that ‘requiring the parties’ compliance with changes in the
law made retroactive to them does not violate the terms of the plea agreement, nor does
the failure of a plea agreement to reference the possibility the law might change translate
into an implied promise the defendant will be unaffected by a change in the statutory
consequences attending his or her conviction.’” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 888-889, fn. 10, quoting Doe, at pp. 73-74.) “To that extent, then,
the terms of the plea agreement can be affected by changes in the law.” (Doe, at p. 74.)
“[I]t is not impossible the parties to a particular plea bargain might affirmatively
agree or implicitly understand the consequences of a plea will remain fixed despite
amendments to the relevant law. [Citations.]” (Doe, supra, 57 Cal.4th at p. 71.)
“Whether such an understanding exists presents factual issues that generally require an
analysis of the representations made and other circumstances specific to the individual
case.” (Ibid.) Standing alone, however, “prosecutorial and judicial silence on the
possibility the Legislature might amend a statutory consequence of a conviction should
not ordinarily be interpreted to be an implied promise that the defendant will not be
subject to the amended law.” (Ibid.)
12 The People do not contend the plea bargain in this case included an express or
implied provision that defendant’s eight-month sentence would be insulated from future
legislative action, and we find no evidence to suggest otherwise. The mere fact defendant
agreed to serve eight months in exchange for the dismissal of additional charges is
insufficient evidence that he expressly or implicitly agreed his term of incarceration
would be insulated from legislative amendment.
Nor are we persuaded the People should be permitted on remand to withdraw from
the plea bargain and to reinstate dismissed counts because resentencing defendant would
deprive the People of the benefit of their bargain. The decision in Collins, supra,
21 Cal.3d 208, does not support the People’s request. The defendant there pleaded guilty
to one count of oral copulation in violation of former section 288a, in exchange for
dismissal of multiple charges and dismissal of the allegation the defendant committed the
oral copulation by means of force. (Collins, at p. 211.) Before sentencing, the
Legislature repealed former section 288a and enacted a new version of the statute that did
not proscribe oral copulation between consenting adults. (Collins, at p. 211.) The
defendant objected to the trial court’s jurisdiction to impose sentence because the crime
to which he pleaded guilty had been repealed. The trial court overruled the objection and
sentenced the defendant to one to 15 years in state prison. (Id. at pp. 211-212.)
The Supreme Court held the trial court erred by imposing a sentence because the
conduct for which the defendant was convicted was no longer punishable. (Collins,
supra, 21 Cal.3d at pp. 212-213.) With respect to a proper disposition, the defendant
stated he had no intention of withdrawing from the plea, which might trigger the People’s
13 right to reinstate the dismissed counts, and instead suggested the court “not reverse his
conviction but rather ‘correct’ the sentence to ‘no penalty’ . . . .” (Id. at p. 214.) Because
“[a] conviction cannot stand on appeal when it rests upon conduct that is no longer
sanctioned,” the court concluded the proper remedy was to reverse the conviction with
directions to dismiss the count on which the defendant was convicted. (Ibid.)
Next, the Supreme Court addressed whether the People could reinstate the
dismissed counts on remand. “Critical to plea bargaining is the concept of reciprocal
benefits. When either the prosecution or the defendant is deprived of benefits for which
it has bargained, corresponding relief will lie from concessions made.” (Collins, supra,
21 Cal.3d at p. 214.) “The state, in entering a plea bargain, generally contemplates a
certain ultimate result; integral to its bargain is the defendant’s vulnerability to a term of
punishment. . . . When a defendant gains total relief from his vulnerability to sentence,
the state is substantially deprived of the benefits for which it agreed to enter the bargain.
Whether the defendant formally seeks to withdraw his guilty plea or not is immaterial; it
is his escape from vulnerability to sentence that fundamentally alters the character of the
bargain.” (Id. at p. 215, italics added.) The defendant in Collins sought relief from the
unlawful conviction “but [to] otherwise leave the plea bargain intact. This is bounty in
excess of that to which he is entitled.” (Id. at p. 215.) Because the legislative
amendment to former section 288a “destroy[ed] a fundamental assumption underlying the
plea bargain—that defendant would be vulnerable to a term of imprisonment”—the court
held, “[t]he state may therefore seek to reestablish defendant’s vulnerability by reviving
the counts dismissed.” (Ibid.)
14 Notwithstanding some broader language in Collins, the holding in that case is
narrow: the People may withdraw from a plea bargain and reinstate dismissed charges
only when a subsequent legislative change has the effect of eliminating entirely the
defendant’s conviction and vulnerability to incarceration and, consequently, has the effect
of entirely depriving the People of the benefit of their bargain. (Collins, supra, 21 Cal.3d
at 215.)
If, on remand, the trial court grants defendant’s petition, at most Proposition 47
would have the effect of reducing defendant’s conviction to a misdemeanor and
potentially reducing his term of incarceration. We say resentencing could potentially
result in a reduction in defendant’s punishment because, even after the passage of
Proposition 47, misdemeanor receipt of stolen property is punishable by incarceration in
county jail for no more than one year. (§ 496, subd. (a).) Theoretically, the trial court
could reclassify defendant’s conviction as a misdemeanor and sentence him to the same
eight-month term (cf. People v. Sellner (2015) 240 Cal.App.4th 699, 701-702
[“[a]ppellant was not strictly ‘resentenced’ but, instead, ordered to serve the sentence
originally imposed, two years’ county jail”]), although the court may not resentence him
to a longer term. (§ 1170.18, subd. (e).) And even if the trial court were to sentence
defendant to a shorter term, defendant would not be completely insulated from
punishment, and the People would not be entirely deprived of their bargain. Collins is
simply inapplicable here.
Therefore, on remand, the People may not withdraw from the plea bargain and
may not reinstate dismissed counts.
15 III.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed. On remand,
the trial court may exercise its discretion to determine whether defendant poses an
unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.