P v. Buycks -- Proposition 47 and Californias "Crime-Bail-Crime" enhancement

November 4, 2014, California voters passed the ballot initiative Proposition 47.  Prop 47 reduced certain crimes from felonies to misdemeanors and also allowed defendants serving felony sentences for those same crimes to petition the courts to reduce their sentences from felonies to misdemeanors.  Key is the language that once reduced the crime is to be a "misdemeanor for all purposes" (except certain purposes not at issue here).

Buycks was arrested for possession of narcotics (a felony at the time).  While he was out on bail on the narcotics charge, he committed a felony (at the time) petty theft and a felony evasion.  California, among its various sentencing enhancements, adds two years to a felony sentence when you are convicted of a felony committed while you were already out on bail for a felony for which you are eventually convicted (colloquially called the crime-bail-crime enhancement).  Buycks was convicted of the narcotics felony and the subsequent felony petty theft and evasion.  So when he was sentenced, the judge added two years to his sentence for the crime-bail-crime enhancement.

ThenProp 47 passes and Buycks returns to court and petitions to have his felony narcotic possession and felony petty theft reduced to misdemeanors.  The court grants the petitions and proceeds to resentence Buycks on all three crimes (now two misdemeanors and one felony).  The court again imposes the two year enhancement.  Buycks appeals, saying that since his narcotics possession is now a misdemeanor "for all purposes", the enhancement is inapplicable.  The appellate court agrees and strikes the enhancement.  A felony reduced to a misdemeanor pursuant to Prop 47 cannot provide the basis for a two year crime-bail-crime enhancement.

The court's reasoning is quite solid and I agree with the holding. One thing about the opinion is strange though.  There are numerous citations to a pamphlet prepared by Couzens (a retired Superior Court judge) and Justice Bigelow (who is on the panel) analyzing Prop 47.  In my mind, while it is fine to adopt the legal reasoning behind the conclusions of the Couzens and Bigelow pamphlet (as we lawyers often do with unpublished opinions), citing to fellow judges' non-judicial publications as authority may give the impression of judicial bootstrapping (because one of us has said it, we can rely upon it).  To paraphrase Judge Richard Posner, "it may be better for the Mohel to display pocketwatches in his window".