Comes the November 2014 passage of Proposition 47 and Gonzalez subsequently files a PC 1170.18 petition to reduce her felony grand theft conviction to a misdemeanor and to be resentenced to misdemeanor probation. The State opposes the petition and, in the alternative, asks the trial court to allow them to reinstate the dismissed charges should the court grant the petition. The trial court grants the petition, resentences Gonzalez to misdemeanor probation, and denies the State's request to reinstate the dismissed counts. The State appeals.
The Fourth District panel affirms, disagreeing with the Second District's opinion in Harris v. Superior Court on one determinate point.
As did the Harris court, this panel examines the plain language of PC 1170.18 and finds that Gonzalez is eligible for the relief requested. It is difficult to argue otherwise.
A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing. . . .Gonzalez is serving a sentence. Is it for a conviction? Yes. Was her conviction by trial or plea? Yup, it was by plea. Is the conviction for a felony that would have been a misdemeanor had Prop47 been in effect at the time? Yes. Clearly, under the language, Gonzalez is eligible.
The State's response is that 1170.18 contains a silent exception for plea bargains by way of the contract principle that contracts are presumed to operate under the law in effect at the time and do not anticipate subsequent changes in the law that increases the burden on a contracting party. This would be more convincing argument had the California Supreme Court not recently rejected it in their 2013 opinion in Doe v. Harris (Doe)
Doe was an advisory opinion penned at the request of the United States Court of Appeal for the Ninth Circuit. In that case a defendant entered into a plea bargain where he would plead guilty to a sex crime that did not require him to register as a sex offender in return for dismissal of a charged crime that would have required him to register. After the parties had entered into, and executed, the plea agreement, the law was changed to require sex registration for persons convicted of the crime to which the defendant pleaded. No one could say this did not alter the contract to increase the burden upon a party. However, perhaps for reasons of pragmatism (or if you are a cynic, sadism), the California Supreme Court held that plea bargains in criminal cases, although a form of contract, are deemed to recognize the legislative power to change the laws for reasons of public policy, and implicitly agree to such changes.
And Doe really dooms all the State's arguments here. "Our expectations were frustrated," says the State. Well, so were the defendant's expectations in Doe. The language in Doe is tough to get around. The best efforts of two justices in the Second District resulted in the burlesque of an opinion that is P v. Harris.
All the cases cited by the State both precede Doe and can be distinguished. As a final arrow, the panel notes that the authority granted to the trial court under 1170.18 is limited to determining whether relief is proper or not and does not include the authority to reinstate dismissed counts or unilaterally withdraw the defendant's plea.
I continue to find it poetic that the lawyers representing the People of the State of California seem to resent, and actively oppose, their client's legal choices.
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