P v. Bradshaw (5th Dist.) The Issue of PC 1210.1(a) Eligibility Is Not Subject To the Waiver Doctrine

Bradshaw pleaded guilty to felony methamphetamine possession, H&S 11377(a), in August of 2014.  He pleaded guilty pursuant to a plea agreement whereby he would receive a grant of felony probation that would include nine months in the county jail.  He requested immediate sentencing.  The trial court followed the plea agreement and placed Bradshaw on felony probation including a term of nine months in the county jail.  The trial court was silent on whether Bradshaw was disqualified from sentencing pursuant to PC 1210.1(a).    

While Bradshaw was in the county jail, California voters approved Proposition 47 in the November 4, 2014 election.  One consequence of 2014's Proposition 47 was that H&S 1377(a) violations are now straight misdemeanors.  Bradshaw appealed his conviction asking the appellate court to remand his case to the trial court with directions to reduce his conviction from a felony to a misdemeanor.  

The Fifth District remands the matter, but due to a unique wrinkle.

The panel holds that Bradshaw is not entitled to a appellate remand as to the Proposition 47 issue, rather he needs to follow the statutory procedure, per PC 1170.18, to obtain that relief.  However, the panel finds that the case needs to be remanded on another point.  As Bradshaw was convicted of a non-violent drug offense the court had a duty to sentence him to drug probation under 1210.1(a), unless he was ineligible.  As the trial did not determine Bradshaw's eligibility, it is unknown whether it erred in not following the mandatory sentencing scheme for eligible non-violent drug offenders.

The state argues that Bradshaw waived any objection to this issue, but the panel notes 1210.1(a) imposes a mandatory duty on the trial court, and a judicial duty is not subject to the waiver doctrine.  So the panel remands the matter to the trial court for a determination of Bradshaw's eligibility for the mandatory 1210.1(a) sentencing scheme.  And for sake of convenience and efficiency, the panel treats Bradshaw's argument on appeal as a 1170.18 motion to also be decided by the trial court upon remand.