Filed 10/22/15 P. v. Harrison 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C078367
Plaintiff and Appellant, (Super. Ct. No. CM041761)
v.
MARSHALL TYLER HARRISON,
Defendant and Respondent.
The People appeal the trial court’s order reducing defendant Marshall Tyler
Harrison’s felony failure to appear to a misdemeanor under the Safe Neighborhoods and
Schools Act (Proposition 47). They contend this reduction was an improper expansion of
Proposition 47. We agree and shall reverse.
PROCEDURAL BACKGROUND
The Butte County District Attorney charged defendant with possessing a
controlled substance in violation of Health and Safety Code section 11377,
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subdivision (a). He was released on his own recognizance. On July 16, 2014, defendant
failed to appear on the drug possession charge. The district attorney filed a separate
complaint alleging defendant had failed to appear on a felony charge of possession of a
controlled substance. (Pen. Code, § 1320, subd. (b).)1 On October 15, 2014, defendant
pleaded no contest to felony failure to appear. In a separate case, he also pleaded to
felony possession of hydrocodone. The remaining counts and allegations were
dismissed.2
On November 4, 2014, by operation of an initiative, defendant’s felony drug
possession offense was reduced to a misdemeanor. (Health & Saf. Code, § 11377
[see Voter Information Guide, Gen. Elec. (Nov 4, 2014), text of Prop. 47, § 13, p. 73].)
Based on this enactment, at the November 25, 2014 sentencing hearing, the trial court
concluded it should also reduce the felony conviction of section 1320, subdivision (b) for
failure to appear on felony charges to a misdemeanor conviction of section 1320,
subdivision (a) for failure to appear on misdemeanor charges. The trial court granted
defendant three years of formal probation. The People filed a timely appeal. (§ 1238,
subd. (a)(1), (5) & (6).) Defendant did not file a respondent’s brief.
DISCUSSION
The People contend the trial court’s action was unauthorized, as it improperly
expanded the scope of Proposition 47. We agree.
We recently decided this precise issue in People v. Eandi (2015) 239 Cal.App.4th
801 (Eandi) (petn. for review pending, petn. filed Sept. 22, 2015, S229305) and People v.
Perez (2015) 239 Cal.App.4th 24, 32 (petn. for review pending, petn. filed Sept. 3, 2015,
1 Undesignated statutory references are to the Penal Code.
2 The facts underlying defendant’s other offenses are not relevant to any issue raised on
appeal, and are therefore not recounted here.
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S229046). We recognize these decisions are not yet final, but continue to find their
reasoning persuasive and will follow it here.
Proposition 47 explicitly reduced a number of specific offenses from felonies to
misdemeanors. Section 1320 is not among those offenses expressly included in the text
of Proposition 47. (Eandi, supra, 239 Cal.App.4th at p. 804.) “Failure to appear is a
crime of deceit that is premised on a defendant’s breach of a contractual agreement.
[Citation.] Because it is the breach of this promise that is the gist of the offense, the
ultimate disposition of the underlying offense is immaterial. [Citation.] As a result, the
true question is whether [Proposition 47] has a collateral retroactive effect such that the
pending felony drug possession charge at the time of the breach of promise of failure to
appear in [July 2014] became a misdemeanor as a matter law retroactively, thereby
negating a necessary statutory element of failure to appear on a felony charge: having
been ‘charged with . . . the commission of a felony.’ ” (Eandi, at p. 805.) Nothing in
either the express language of the initiative or its ballot materials reflects any intent to
provide retroactive collateral relief as a matter of law. (Ibid.) In July 2014, when
defendant failed to appear, there was a felony charge pending against him for which he
had promised to appear. “The initiative did not purport to exercise a power to go back in
time and alter the felony status of every affected offense in every context. It merely
offered the possibility of a reduction in current punishment for a conviction or a
redesignation of the status of completed punishment for a conviction on a petition for a
recall of sentence. Prior felony convictions remain such absent a petition; we do not
discern . . . any cogent reason why a then pending felony charge should transform to a
misdemeanor as a matter of law for purposes of its collateral effect on a different
offense.” (Eandi, at pp. 805-806, fn. omitted.) “[T]he felony status of an offense at the
time charges were filed with the trial court remained unchanged notwithstanding the
November 2014 enactment [of Proposition 47] . . . .” (Id. at p. 806.)
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The trial court therefore lacked authority to reduce defendant’s conviction for
failure to appear from a felony to a misdemeanor. We must set aside the order of
probation and remand for further proceedings treating the failure to appear conviction as
a felony conviction.
DISPOSITION
The judgment (order of probation) is vacated. The matter is remanded to the trial
court for further proceedings on the felony conviction.
BUTZ , J.
We concur:
HULL , Acting P. J.
DUARTE , J.
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