Mr. Perry and his codefendant accosted two men outside a restaurant and demanded the men empty their pockets. In committing this crime (for which Perry could have received 15 years), Perry made off with the lucrative haul of one ten dollar bill, one used cell phone, and one pack of smokes.
An information was filed charging Perry with one count of robbery (PC 211) and one count of grand theft from a person (PC 487(c)), along with allegations that he had suffered a previous strike conviction as well as a conviction constituting a five-year prior.
Perry and the State entered a plea bargain whereby Perry would plead to the grand theft from a person charge, admit the prior strike, and accept a six year prison sentence. For their part the State promised to move to dismiss the remaining charge and allegation. The trial court accepted the plea bargain, Perry pleaded as promised and took his six year sentence, whereupon the State kept their promise to move to dismiss the balance of the information.
Comes then November 4, 2014, and the California voters pass Proposition 47. Since Perry's grand theft from a person was of items worth less than 950 dollars, he petitioned the trial court to reduce his conviction to a misdemeanor and resentence him to 180 days (the new applicable penalty) under PC 1170.18. The State agreed Perry's conviction was eligible, but wanted the court to allow it to reinstate the dismissed count and allegation. The trial court rejected the State's request, reduced Perry's conviction to a misdemeanor, and resentenced him to 180 days, which he had already served, and released him. The State appealed.
A Second District panel affirms. This opinion is similar to those in P v. Gonzalez and P v. Brown. The sole published opinion that comes down on the other side of the question is Harris, which appears to use the case of P v. Collins (and a questionable distinguishing of Doe v. Harris) to support its holding. However, I question whether the Harris panel actually read Collins.
In Collins, the defendant was indicted November 1974 on 14 felony counts. Three of those counts were violations of PC 288a, which at the time criminalized oral copulation, consensual or otherwise. Attached to these three counts of oral copulation were enhancements alleging that the oral copulation was achieved by use of force.
Collins and the State entered into a plea bargain. Collins would plead guilty to one count of oral copulation, PC 288a, without the force allegation (meaning he was pleading to consensual oral copulation) in return for dismissal of the balance of the counts. In 1974, the penalty for consensual oral copulation was one-to-fifteen years in the state prison.
But before Collins could be sentenced, he was found to be a Mentally Disordered Offender (MDO), his criminal case was suspended, and he was placed in a state mental hospital. In April of 1976, Collins' criminal case was resumed and he appeared for sentencing whereupon the trial court sentenced Collins to one-to-fifteen years in the state prison.
The glitch was that in 1975, the legislature had decriminalized consensual oral sex (brilliant), meaning that Collins had been sentenced to prison for something that wasn't illegal anymore.
Upon appeal, Collins' sentence was reversed on the principle that absent some indication otherwise, when the legislature declares something is no longer criminal, it is an indication of an intent to no longer impose punishment upon someone for such an act. But, the opinion stated that Collins should not be let off the hook entirely, and allowed the State to reinstate the dismissed counts upon remand.
However (and this is why you need to read the entire opinion) the opinion places a cap on Collins' punishment. A cap of three years. Now under the original plea agreement, the applicable sentence was one-to-fifteen, meaning Collins, at the pleasure of the parole board, could have done 15 years. I assume the three years represented the amended punishment for a 288a. So while Collins does stand for the proposition that a subsequent change in the law should not allow a defendant to escape all punishment under his plea bargain, it certainly does not stand for the proposition that a subsequent change in the law should not allow a defendant to serve a lesser punishment than under the plea bargain.
In this respect the holding in Collins is not inconsistent with Perry, Gonzalez, and Brown.
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