Filed 9/6/16 P. v. Marshall CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B266898
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA094751)
v.
DWAYNE L. MARSHALL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Laura
Laesecke, Judge. Reversed and remanded.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary
Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
********
In October 2013, as part of a plea agreement, defendant Dwayne L. Marshall pled
no contest to a felony charge of drug possession (Health & Saf. Code, § 11377, subd. (a))
and admitted serving seven prior prison terms (Pen. Code, § 667.5, subd. (b)), in
exchange for dismissal of a felony first degree residential burglary charge (Pen. Code,
§ 459) and an 11-year prison sentence. A little more than a year later, California voters
passed Proposition 47 (“The Safe Neighborhoods and Schools Act”; Pen. Code,
§ 1170.18), which reduced certain theft- and drug-related felonies to misdemeanors.
Defendant petitioned under Proposition 47 to recall his sentence and have his felony drug
possession conviction reduced to a misdemeanor. The People opposed his petition,
contending that resentencing would deny them the benefit of their plea bargain. The trial
court in effect denied the petition, finding that if it were to grant the petition, defendant
would have to withdraw his plea so as to permit the People to reinstate the dismissed
burglary charge. Defendant declined to do so and brought this appeal. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2013, an information was filed charging defendant with first degree
residential burglary (Pen. Code, § 459) and possession of a controlled substance (Health
& Saf. Code, § 11377, subd. (a)). It was also alleged that defendant had served several
prior prison terms, and had suffered convictions for serious and violent felonies, three of
which were “strikes.” (Pen. Code, §§ 667.5, subds. (b), (c), 667, subds. (d), (b)-(j),
1170.12.)
Trial commenced on October 25, 2013. On October 29, 2013, defendant withdrew
his guilty plea, entered a no contest plea to the drug possession charge, and admitted
seven prior prison terms. On December 5, 2013, defendant was sentenced to a total term
of 11 years in prison, consisting of four years for the drug possession and seven years for
his prison priors. The burglary charge was dismissed according to the plea agreement.
On November 17, 2014, defendant filed a petition for modification of his sentence
under Proposition 47, seeking to have his felony drug possession conviction reduced to a
misdemeanor. On December 22, 2014, the People orally opposed the petition, on the
basis that they would not receive the “benefit of the [plea] bargain,” and insisted that if
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defendant were granted Proposition 47 relief, he would have to withdraw his plea, and
have the dismissed burglary charge reinstated. The court continued the hearing and
ordered that defendant’s case file be available at the next hearing.
On February 3, 2015, the People restated that they were “completely opposed [to
Proposition 47 relief] and are prepared to retry [defendant] if he wants to withdraw his
plea . . . .” The court expressed its view that defendant “is entitled to the benefits of Prop
47 which means the People are also entitled to the benefit of their bargain under the law,
which means since he was charged with other counts, he can be – at this point in time
since the People want to retry the case I will allow him to withdraw his plea, and People
can re-try the case.” After hearing additional argument, the trial court continued the
hearing so the parties could file briefs addressing the issue.
On March 3, 2015, defendant filed his brief, arguing that plea agreements
incorporate future changes in the law, and that there was no basis for withdrawal of the
plea. On March 30, 2015, the People filed a motion to vacate the plea, and to reinstate all
charges against defendant, in the event the court decided to grant the Proposition 47
petition. The People, relying on People v. Collins (1978) 21 Cal.3d 208 (Collins), argued
that reducing defendant’s conviction under Proposition 47 would provide defendant with
a “windfall.”
At the April 21, 2015 hearing, the court concluded that “this was a true negotiation
where the People gave up the strike. [¶] And it seems to me to be something different
than the other cases I have seen with Prop 47 where there are other counts and the D.A.,
for whatever reason, picks a meth case, but it’s not a significant negotiation for
something like a strike and to avoid a strike. [¶] And that is where this court is feeling
that . . . I’m more inclined to follow Collins and to allow the defendant, if he still chooses
to follow through with the Prop 47 petition, to allow him to withdraw the plea.
[¶] . . . [¶] . . . [I]f [defendant] would like to continue forward his request under
Prop 47, I would grant him the plea to withdraw his plea, putting both parties in the same
position as they were before . . . .” The prosecutor proposed that defendant serve his
sentence, and the People would not oppose a later application under Proposition 47 to
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have his conviction reduced to a misdemeanor. Defense counsel requested a continuance
to consult with defendant.
On August 17, 2015, at the hearing on the Proposition 47 petition, “defendant
decide[d] not to withdraw his plea,” and the petition was taken “off calendar.”
On September 14, 2015, defendant filed a notice of appeal from the August 17,
2015 order. His notice of appeal also purported to “challenge[] the validity of the plea”
and requested a certificate of probable cause. His request for a certificate of probable
cause was denied by the court.
DISCUSSION
I. Appealability
The People contend this appeal must be dismissed because defendant neither
obtained a final ruling on his petition for resentencing, nor obtained a certificate of
probable cause. We find no merit in these contentions. A certificate of probable cause is
not required to appeal post-plea matters that do not affect the validity of the plea, such as
those raised on appeal here. (Pen. Code, § 1237.5; see also Cal. Rules of Court,
rule 8.304(b)(4).) Moreover, the trial court effectively denied defendant’s petition for
Proposition 47 relief, when it conditioned Proposition 47 relief on the withdrawal of
defendant’s plea. Although the petition was placed “off calendar,” this was done only
after the trial court concluded that defendant’s entitlement to Proposition 47 relief hinged
on his willingness to withdraw his plea. This was clearly an adverse ruling, preserving
defendant’s appellate challenge. (See, e.g., People v. Rowland (1992) 4 Cal.4th 238,
259.)
II. Merits
The parties do not dispute that defendant’s drug possession conviction is eligible
for resentencing under Proposition 47. (Pen. Code, § 1170.18, subd. (a).) The question is
whether defendant’s pursuit of Proposition 47 relief allows the People to withdraw from
the plea agreement and reinstate the dismissed charge.
There is a split of authority among the Courts of Appeal on this issue, and it is
currently pending before our Supreme Court. (See, e.g., Harris v. Superior Court (2015)
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242 Cal.App.4th 244, 255, review granted Feb. 24, 2016, S231489 [holding that
reduction of a plea-bargained felony charge under Proposition 47 deprives the People of
the benefit of the plea bargain, entitling the People to withdraw from the plea and
reinstate the previously dismissed charges]; compare with People v. Gonzalez (2016) 244
Cal.App.4th 1058, 1067, 1068-1071, review granted Apr. 27, 2016, S233219 [finding
that plea agreements are subject to changes in the law which may modify or invalidate
the terms of a plea agreement, and that in enacting Proposition 47, voters intended to
affect the sentences of offenders notwithstanding that their convictions were by plea
agreement, and that Proposition 47 provides no basis for reinstatement of dismissed
counts]; accord People v. Perry (2016) 244 Cal.App.4th 1251, 1258, review granted
Apr. 27, 2016, S233287 [same]; People v. Brown (2016) 244 Cal.App.4th 1170, 1179,
review granted Apr. 27, 2016, S233274 [same].)
We find the reasoning in People v. Gonzalez, supra, persuasive. Plea agreements
are deemed to incorporate future changes in the law. “[R]equiring the parties’
compliance with changes in the law made retroactive to them does not violate the terms
of the plea agreement . . . .” (Doe v. Harris (2013) 57 Cal.4th 64, 73-74.) Proposition
47, by its terms, applies to “person[s] currently serving a sentence for a conviction,
whether by trial or plea . . . .” (Pen. Code, § 1170.18, subd. (a), italics added.)
Proposition 47 makes resentencing mandatory, if the defendant meets the statute’s
requirements. (§ 1170.18, subd. (b).) Relief may only be denied if an otherwise eligible
defendant poses an “unreasonable risk of danger to public safety.” (Id., subd. (b)(3).)
Nothing in Proposition 47 provides a basis for the People to withdraw a plea
agreement and reinstate dismissed charges. Respondent’s reliance on Collins, supra, is
misplaced. In that case, the defendant pled guilty, and before he was sentenced, the
Legislature decriminalized the crime to which he had entered a plea. Nevertheless, the
trial court sentenced defendant according to the negotiated plea. The Supreme Court
reversed, finding the conviction was without legal basis, but remanded to allow the
People to revive the dismissed charges, finding that “when the defendant withdraws his
guilty plea or otherwise succeeds in attacking it, counts dismissed pursuant to a plea
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bargain may be restored.” (Collins, supra, 21 Cal.3d at pp. 211, 213, 215.) Here,
defendant did not ask to withdraw his plea, and he has not attacked it; he has availed
himself of a voter-approved mechanism for resentencing. Moreover, unlike the
defendant in Collins, defendant’s plea was final before Proposition 47 was enacted.
For these reasons, we find that the trial court erred in conditioning Proposition 47
relief on defendant’s agreement to withdraw his plea. Defendant is eligible for recall of
his sentence unless the trial court finds that resentencing defendant “would pose an
unreasonable risk of danger to public safety.” (Pen. Code, § 1170.18, subd. (b)(3).)
DISPOSITION
The order denying the petition is reversed, and the matter is remanded to the trial
court with directions to evaluate defendant’s eligibility for Proposition 47 relief under
Penal Code section 1170.18, subdivision (b)(3).
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.
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