In March of 2014, Mr. Dunn was pulled over while driving a motorcar. He was arrested on outstanding traffic warrants and searched. The pants he was wearing (though he disclaimed ownership of said pants) had a baggie of cocaine in the pocket. The motorcar he was driving contained several more baggies of coke, over 500 bucks in cash, 53 rounds of ammo, and a police scanner.
For this, Dunn was charged with three felonies: possession of cocaine for sale (HS 11351), possession of cocaine (HS 11350), and felon-in-possession of ammo. Also alleged were two prior prison terms, under PC 667.5(b)(1). Dunn and the State negotiated a plea bargain whereby Dunn would plead guilty to felony possession of cocaine (11350), admit both prior prison terms, and accept a sentence of five years (three for the possession, plus two years for the prior prison term enhancements). The state agreed, in return, to dismiss the possession for sale and felon-in-possession of ammo counts.
Dunn pleaded per the plea bargain and, in August of 2014, received his five year sentence. Although the record is silent on the issue, it is implied the State kept its promise and moved to dismiss the two remaining counts. Both sides made their concessions and received their benefits under the plea bargain.
Comes then November 4, 2014, and California voters pass Proposition 47. Which, among other things, reduced possession of cocaine (11350) from a felony to a misdemeanor. Also in Proposition 47 was a new statute (PC 1170.18) whereby a person serving a sentence, whether convicted by trial or plea, for a crime which had been reduced to a misdemeanor by Proposition 47, could petition the court to reduce his conviction to a misdemeanor and resentence him to the (now) applicable misdemeanor sentence. Furthermore, the new law stated the court was obligated to grant the reduction and commence resentencing, unless the court found the defendant posed an unreasonable risk to public safety.
In December 2014, Dunn filed his 1170.18 petition. Clearly his conviction for HS 11350 was a crime which was eligible for a reduction to a misdemeanor and subsequent resentencing. The State objected to the petition, not on eligibility grounds, but on the ground that if Dunn's petition was granted, the State would be denied its benefit under the previous plea bargain, to wit, the five year sentence (if the petition were granted, Dunn's maximum sentence would be 354 days). The trial court agreed with the State and denied Dunn's petition. Dunn appealed.
The Sixth Circuit reverses.
[Note: This issue of whether there is an implied-in-law "benefit of the bargain" exception applicable to PC 1170.18 petitions is currently before the California Supreme Court in People v. Harris.]
The 3-0 decision of the panel begins with a straightforward statutory analysis of 1170.18. The applicable language doesn't lend itself to an argument that the statute has more than one reasonable interpretation. Section 1170.18, says it applies to people "currently serving a sentence for a
conviction, whether by trial or plea . . . ." And Dunn is currently serving a sentence for a conviction by plea, hence he is eligible for the relief requested.
For an eligible petitioner, section 1170.18 requires the court grant relief unless the court finds that granting the relief would result in an unreasonable risk to public safety. The panel finds this language provides the sole basis for a trial court to deny relief to an eligible petitioner; inclusio unius est exclusio alterius.
Since the statutory language is bereft of any support for the State's position, the State is forced to resort to an extra-statutory argument. It cites to a 1978 case in which the California Supreme Court allowed the State to reinstate counts previously dismissed as part of a plea bargain when, in the time period between the defendant's plea and sentencing, the legislature decriminalized the crime to which the defendant pleaded.
The panel's rejection of this argument is four-fold. First, it cites to a subsequent 2013 California Supreme Court decision that held that plea bargains, unless containing an explicit term evincing a contrary intent, are deemed to incorporate any future statutory changes. Second, the panel notes the language in Proposition 47 which prohibits trial courts from imposing, upon eligible petitioners, sentences longer than the original sentence. Allowing the State to reinstate dismissed charges would create a substantial risk of such an outcome. Third, the panel notes that it is settled law that a defendant may not be punished for exercising a protected or constitutional right. Finally, and most importantly IMEO, the panel actually analyzes the 1978 case and finds it doesn't actually stand for the proposition asserted by the State. In that case, it was that the defendant would actually escape any risk of incarceration (as the act to which he pleaded was no longer a crime) that frustrated the plea bargain and justified allowing the State to reinstate the dismissed counts. Here, there is no risk Dunn (nor any petitioner) will avoid punishment altogether as the statutory amendments at issue don't decriminalize the conduct (possession of cocaine), rather they only reduce it.
The next step is a remand to the trial court for it to determine whether granting Dunn's petition would pose an unreasonable risk to the public safety. And given the previous decision to split Dunn's sentence, I would think such a decision unlikely.
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