HARRIS v. S.C. (PEOPLE )

Petitioner’s Petition for Review

Cal.December 28, 2015

§231489 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MORRIS GLEN HARRIS,JR., ) S- ) Petitioner, ) (2Dist. No. B264839) ) Vv. ) (Trial Ct. No. BA408368) ) THE SUPERIOR COURT OF ) (Related to S227878) LOS ANGELES COUNTY, ) ) Respondent, ) SUPREME COURT PEOPLE OF THE STATE OF CALIFORNIA, ) ) DEC 28 2015 Real Party in Interest. ) = . ) Prank A. Motuire Clerk ~Beputy PETITION FOR REVIEW RONALD L. BROWN, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA Albert J. Menaster, Rourke Stacy, Mark Harvis (State Bar No. 110960), Deputy Public Defenders Appellate Branch 320 W. Temple Street, Suite 590 Los Angeles, California 90012 Telephone: (213)974-3066 Fax: (213)626-3519 Email: MHarvis@pubdef.lacounty.gov Attorneys for Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MORRIS GLEN HARRIS,JR., ) S- ) Petitioner, ) 22"Dist. No. B264839) ) Vv. ) (Trial Ct. No. BA408368) ) THE SUPERIOR COURT OF ) (Related to $227878) LOS ANGELES COUNTY, ) ) Respondent, ) ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) Real Party in Interest. ) ) PETITION FOR REVIEW RON_ALD L. BROWN, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA Albert J. Menaster, RourkeStacy, Mark Harvis (State Bar No. 110960), Deputy Public Defenders AppeLate Branch 320 W.Temple Street, Suite 590 Los Axngeles, California 90012 Telephone: (213)974-3066 Fax: €213)626-3519 Email: MHarvis@pubdef.lacounty.gov Attorneys for Petitioner TABLE OF CONTENTS Page PETITION FOR REVIEW ..u0...cccccscccscscessscsesesssee esssessssesscssssesssssesssesvsssavesssssesasactevesscesececececccecessee. 1 ISSUE ON REVIEW.uiecscccccccccccccccscecessscsecesesecsese esesssssasssssssesssessssasscsavsssecsssasasasssisivecescecesececececes2 IMPORTANCEOF REVIEW .uuu..ccccccccccssescscsesssee aussesssscssssessesssssessseevsesavsvassutsecacsevseisecececececececececes2 STATEMENT OF FACTS AND PROCEDURE... ccesscccccccscsscsssssssssssesesesevssssseeceevecseceeeosececcescecesee. 5 ARGUMENT.......ccccccscscscscssscsssscesscscencecsassesescsestaee an sassssassssassesssssssssstssessasavisavsastagtesscavesececececececeece. 12 L STANDARD OF REVIEW .....cccscccsssse a sestsssssscssesscsssesestssessssssssssssssssavsctevestvecsseesesseseces 12 IL. PRINCIPLES OF STATUTORY CONSTRUCTIONooeccccccccceccccscccesseceececececsceceesececes 12 Il. ©THE TRIAL COURT DID NOT HAVEJURISDICTION TO VACATE THE PLEA BARGAIN AND REINSTATE THE ORIGINAL CHARGES oooececceccccececececeseeccececee. 13 IV. DOE V. HARRIS ESTABLISHES THIAT PLEA BARGAINS ARE SUBJECT TO THE POWER OF THE STATE TO CHANGE THE LAW; THERE WAS NO LEGAL BASIS TO GRANT THE PROSECUTION’S MOTION TO WITHDRAW FROM THE PLEA BARGAIN AND REINSTATE THE ORIGINAL CHARGES AND POTENTIAL SENTENCE.u.c.c..e cscssssssssccscecsccsesssssscsscssesssssssavsesevessvevececesseccesce. 17 V. PEOPLE V. COLLINS IS DISTINGUISHABLE AND HAS BEEN IMPLIEDLY OVERRULED BY DOE V. HARRIS... cccscsscscccsssccsessesssssssessssssssesssecseseseeseecscessceceseces26 VI. REINSTATING THE ORIGINAL POTENTIAL SENTENCE WASERROR..........27 VII. THE MAJORITY’S RULING LEADS TO ABSURD CONSEQUENCES, WOULD GUT THE INITIATIVE, AND IS CONTRARY TO THE INTENT OF THE VOTERS0... csecccccsssssssecsscsceecscecssvecseseeee eussvessssssasasssscassssssssesssasssasesacsevesassecececesscececce,28 CONCLUSION.....eccccccsccsccscssececceccscececcsesssssusesae a ssssssisesesvacsasssssstasssessesssusavsuevesuessseresesecescccceccess29 CERTIFICATE OF COMPLIANCE. ......ccccccscssssseae essusssssecsssecsecssssssssesesassssciesecseesesseseteseeecececececce.30 APPENDIX A APPENDIX B M e E M I A I W E T e d S T D s TABLE OF AUTHORITIES Supreme Court Opinions Freeman v. United States (2011) Ss US. __5. 131 S.Ct 2685 wo. 24 United States v. Goodwin (1982) 457 US. 368 ve.ccecccccsccssesseceseeenres 20, 27 California State Opinions Dix v. Superior Court (1991) 53 Cal.3d 442 ooo ccccccccsssesssssscsseseseeceseesens 15 Doe v. Harris (2013) 57 Cal.4th 64 oo... 2, 6, 10, 18, 19, 20, 21, 22 Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 0...eee 21 Frederick v. Justice Court (1975) 47 Cal.App.3d 687 .......cccccceccssscsssseeeee 16 Holder v. Superior Court (1970) 1 Cal.3d 779 w..cccecccccsccssssssssccsssscessesee 15 Johnson v. Department ofJustice (2015) 60 Cal.4th 871 woe 3,21 Kavanaugh v. West Sonoma County Union High School Dist. (2003)29 Cal.4th 91deceesecseesceessesssseees seesesesecseseeseevesscsssesecsssessesessevevsesesses 12 People v. Acuna (2000) 77 Cal.App.4th 1056 ou... cccccccsesscsssssecsceseeeeees 25 People v. Brewer (2015) 235 Cal.App.4th 122 wo...cccccececsessssssecsesssesesees 17 People v. Briceno (2004) 34 Cal4th 451 ooccccccccesscssesesssessscesssscsesensees 12 People v. Brown (2014) 230 Cal.App.4th 1502 ......ccccecsscsessceeeseseees 16 People v. Collins (1978) 21 Cal.3d 208 weirs 4, 6, 10, 26, 27, 28 People v. Community Release Bd. (1979) 96 Cal.App.3d 792 wc. 24 People v. Cromer (2001) 24 Cal4th 889 oocccccccccsecscsessssssecsesesesesees 12 People v, Delson (1984) 161 Cal.App.3d 56 w.cccccccscccsssssssesesesecessssesesees 15 People v. Gipson (2004) 117 Cal.App.4th 1065 oo... 18, 20, 24, 25 People v. Knowles (1950) 35 Cal.2d 175 wceccccccccssscscccssescesesssceetsecstseesens 12 People v. Lockridge (1993) 12 Cal.App.4th 1752 .occccccceseseceeeeseees 15 People v. Mancheno (1982) 32 Cal.3d 855 w.ccccccccccscsssssessssecseccescesescscens 20 People v. Murillo (2002) 102 Cal.App.4th 1414 voiceceeeeeseeeceee 22 People v. Nitschmann (2010) 182 Cal.App.4™ 705, 707-170..ccccesseccssecseeses 9 People v. Smith (2014) 227 Cal.App.4th 717 .ucccccscccssssceessseeeeees 21,22 People v. Thomas (1959) 52 Cal.2d 521 vccccccccccssscsscssesccssssssecsecessseseess 15 Swenson v. File (1970) 3 Cal.3d 389 oo. .cccccccccccscssccsssssscscccssessesecsetscerercase 19 TW. v. Superior Court (2015) 236 Cal.App.4th 646 oo... 4,9, 23 Terry v. Superior Court (1999) 73 Cal.App.4th 661 o.cccececcscssssseseceeees 16 Way v. Superior Court ofSan Diego County (1977) 74 Cal.App.3d 165 . 24 California State Statutes Code, section 18 oo..ccccccccccssssscecccssscsscsssesssssessesecssseseesssecsstesesescesses 29.Pen. Pen. Code, section 211 ..cccccecssssssssssssecssssssssssesssssssessecsssessssssasecsessecesees 9 Pen. Code, section 288 oo... .cceccccccececccsssecsssseesecssesseesssseseuesessesctassesececesees 25 Pen. Code, section 290 o...ccccccccscsccccsssscesssesscssssessecsscasesceseseessstecseccecees 14 Pen. Code, section 487 .o..ccccccecccsssssssessessccsssecssessssssessecssessussssssscsesceees 5,9 Pen. Code, section 541 ooo. cciecccccesseccsssssscsssssssssssecsecsesssessesestesttesseceeseese. 27 Pen. Code, Section 667 ....ccccccccccccssssscesssssscesesessessesssssscessessescavsesavecseceeceee 14 Pen. Code, section 1385 ooo.ccccccccssccccsescessscessesessessessssssssseseceeseesessescecces 16 Pen. Code, section 1203.4 oo. .ccccccsescccssesssssesssecssssecsssesecssesesseceeees 21, 22, 25 Pen. Code, sections 1170 o..cccccccscsssscsssssessececcscessesessessecssseesessseseseceecese 16 Pen. Code, section 1170.18 voecc.eeccccccessececssessees 5, 9, 13, 14, 16, 17, 21, 28 Pen. Code, section 1170.126 voceeccccecccssesscsssssssessesscsssssesesecereesseesecescececcce. 16 Pen. Code, section 1170, subd. (d) w.c.cece i cccceeeesecessscesssscsecscescecscscecseceseeces 15 Rules California Rules of Court, rule 8.500 o....cccccscsssssscscsssessesssssescessereccceseseees 5 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA MORRIS GLEN HARRIS,JR., ) S- ) Petitioner, _) (2"Dist. No. B264839) ) Vv. ) (Trial Ct. No. BA408368) ) THE SUPERIOR COURT OF ) (Related to $227878) LOS ANGELES COUNTY, ) ) ) Respondent, ) ) THE PEOPLE OF THE ) STATE OF CALIFORNIA, ) ) Real Party in Interest. ) ) PETITION FOR REVIEW TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner Morris Glen Harris Jr. respectfully petitions this court for review of the 2-1 published decision by the Second District Court of Appeal, Division Five, issued November 18, 2015, denying his Petition for Writ of Prohibition. The decision wasissuedafter this court granted review and transferred the case back to the Court of Appeal. The majority held that although petitioner was entitled to have his conviction charge reduced to a misdemeanor pursuant to Proposition 47, the prosecution was entitled to withdraw from the plea bargain as a result of being substantially deprived of its benefit and to reinstate the original, more serious, charge. The majority also subjected petitioner to additional punishment by reinstating the maximum sentence available on the originalcharge. The dissenting justice wrote that petitioner wasentitled to the benefit of Proposition 47 and that, pursuant to this court’s decision in Doe v. Harris (2013) 57 Cal.4" 64, plea agreements are deemedto incorporate and contemplate not only the existing law but the reserve powerof the state to amend the law. The dissent wrote that the trial court had no power to reinstate charges because Proposition 47 did not, either expressly or impliedly, grant that power. A copy of the Court of Appeal’s opinion is attached as Appendix A. An Order Modifying the Dissenting Opinion issued December 1, 2015, is attached as Appendix B. ISSUE ON REVIEW When a defendant pleads guilty to a lesser felony charge pursuantto a plea bargain, and that charge is later reduced to a misdemeanor pursuant to Proposition 47, may the prosecution and the trial court vacate the plea, reinstate the original, more serious charge(s), and subject the defendant to increased punishment? IMPORTANCEOF ISSUE Proposition 47, an initiative passed by almost 60 per cent of California’s voters, made significant changes to the way California treats offenders. The voters mandatedthat specified crimes could henceforth only be filed as misdemeanors for qualified defendants, thus removing prosecutorial charging discretion. In addition, and most relevant here, the voters also allowed convicted personsto petition the courts to reduce an enumerated felony conviction to a misdemeanor, specifying that the reduction would occur regardless of whether the conviction occurred after trial or plea. It is very rare that a Court of Appeal issues an opinion that is as seriously damaging to a voter-approved initiative as did the Harris majority. The majority opinion has the potential to not only eviscerate Proposition 47, but carried to its logical conclusion, eviscerate the Three- Strikes sentencing initiative, Proposition 36. It simply cannotbe the will of the People of the State of California that an initiative that by its very terms applies to convictions obtained by pleas, which represent more than 95 per cent of all convictions, would not apply to plea bargains. Yet that is the unreasonable conclusion reached by the Harris majority. In 2013 this court issued Doe v. Harris, wherein it was clearly held that plea bargains incorporate and contemplate not only existing law, but also the reserve power of the state to amend the law. This decision was reinforced in Johnson v. Department of Justice (2015) 60 Cal.4™ 871. Proposition 47, obviously, is a change in the law and Doe v. Harris establishes that it applies to existing convictions including plea bargains. The Court of Appeal majority (hereafter “the majority”) was wrong whenit said that Doe v. Harris was distinguishable. The majority’s attemptto limit Doe v. Harris to what it calls “statutory conditions” as opposed to negotiated terms must fail. The holding in Doe v. Harris contains no such limitation and cannot be read so narrowly. Language this clear needs no interpretation andit is apparent that this court meant whatit wrote. The majority relied upon People v. Collins (1978) 21 Cal.3d 208, which allowed the reinstatement of the original charges after the conviction charge was decriminalized and the defendant potentially freed from all criminal culpability and restraint. Although Collins was not mentioned in either Doe v. Harris or Johnson,it can no longer be considered valid law in light of those two decisions. The majority’s reliance upon Collins was error. In addition, the majority failed to recognize, as pointed out by the dissent, that Proposition 47 is a wholly-contained statutory construct that only gives the trial court one power: to reduce an eligible and suitable defendant’s qualifying crime to a misdemeanor. Thetrial court was without jurisdiction to reinstate dismissed charges and the Court of Appeal did not have the power to expand Proposition 47 to allow this. This is a question of significant import throughout the state. The majority opinion cannot be allowed to stand and wipe outthe application of Proposition 47 to up to 95 per cent of the cases within its ambit. Harris is inconsistent with 7.W. v. Superior Court (2015) 236 Cal.App.4th 646, which held that Proposition 47 does apply to plea bargained cases. Review is necessary to settle this important, repeating question of law and to secure uniformity of decision. (Cal. Rules of Court, Rule 8.500, subd. (b)(1).) STATEMENT OF FACTS AND PROCEDURE Petitioner was charged by information with robbery in violation of Penal Code section 211. It was alleged that petitioner had a prior robbery conviction that was both a “strike” and a five-year prior. The crime occurred on February 11, 2013. (Felony Information attached to the Petition for Writ of Prohibition as Exhibit A.) The preliminary hearing transcript explains that on February 11, 2013, petitioner approached victim Francisco Diego from behind, hit him on the side of the face, and took his cell phone. Mr. Diego gave chase and told two nearby police officers about what had happened. The officers captured petitioner and the cell phone was recovered on the ground next to him. Mr. Diego identified petitioner as the person whostole his phone. At pretrial the prosecution added Penal Code section 487, subdivision (c), grand theft from the person. Petitioner pleaded guilty and admitted the prior “strike” conviction. He wassentencedto 6 years in state prison pursuant to the plea agreement. The robbery charge and the remaining allegations were dismissed. (Superior Court’s Computerized Minute Orders, attached to the Petition for Writ of Prohibition as Exhibit B.) On January 27, 2015, petitioner filed his Proposition 47 recall petition, pursuant to Penal Code section 1170.18, which wasattached to the Petition for Writ of Prohibition as Exhibit C. Petitioner set forth a prima facie case that he waseligible and suitable for Proposition 47relief. On February 25, 2015, the prosecution filed a “Motion to Withdraw from the Plea and Reinstate Charges,” which was attached to the Petition for Writ of Prohibition as Exhibit D. The prosecution argued that it was entitled to the benefit of its bargain, citing People v. Collins, supra, 21 Cal.3d 208. The prosecution argued that general contract provisions applied even if there was a change in the law. The prosecution’s request wasthat it be allowed to withdraw from the plea,set it aside, and reinstate the previously dismissed robbery count. On March 5, 2015, petitioner’s counsel filed “Points and Authorities Re Entitlement to Proposition 47 Relief,’ which was attached to the Petition for Writ of Prohibition as Exhibit E. Petitioner relied upon Doev. Harris, supra, 57 Cal.4™ 64, wherein this court explained that plea agreements are deemed to incorporate and contemplate not only the existing laws, but also the reserve powerofthe state to amend the law. The fact that the parties have entered into a plea agreement does not insulate them from changesin the law. Petitioner argued that Proposition 47, by its own terms, applies to convictions obtained by plea and is to be construedliberally and broadly. Petitioner refuted the “benefit of the bargain” argument advanced by the prosecution. Petitioner argued that excluding plea-bargained crimes from Proposition 47 relief would gut the initiative because more than 90per cent of criminal convictions are obtainedby plea. Petitioner explained how Doe v. Harris mandated that the changes brought by Proposition 47 had to be applied. Petitioner also pointed out numerous other instances where sentencing reforms were applied to defendants even though the convictions were obtained through plea bargains. Petitioner argued that Collins had beenoverruled sub silentio by Doe v. Harris and did not apply. On March 11, 2015, respondent court issued its written Proposed Order, Exhibit F to the Petition for Writ of Prohibition. The court explained that the issue was not so much whetherpetitioner wasentitled to Proposition 47 relief, but rather whether the prosecution is entitled to relief when the fundamental terms of the plea agreement are altered. (Exh. F, p. 4.) The court concluded it was without jurisdiction to deny the petition because petitioner was eligible and suitable. (Exh. F, p. 5.) The court granted relief. (Exh.F, p. 8.) The court also concluded that the prosecution would be allowed to withdraw from the plea, set it aside, and reinstate the dismissed charge and allegations. (Exh. F, p. 8.) The trial court determined that the prosecution is entitled to receive the benefit of its plea bargain and that when the prosecution does notrealize its benefit, then that is groundsforsetting aside the agreement, vacating the plea, and reinstating any dismissed charges. (Exh. F, p. 11.) The court distinguished Doe v. Harris on the groundit did not deal with the issue of the prosecution’s remedy for a breached plea agreement. (Exh. F, pp. 12-13.) Thetrial court argued that Doe v. Harris and People v. Collins are consistent because they apply the same rule. (Exh. F, p. 13.) The court concluded that because the Proposition 47 reduction to a misdemeanor deprived the prosecution of the benefit ofits bargain, then under general contract law the plea agreement must be set aside. (Exh. F, pp. 14-15.) The court further stated that although it had approved the original plea agreement of a reduction from a robbery to a grand theft, it would reject such an agreement that, after Proposition 47, would only involve a misdemeanor conviction and a short stint in jail. (Exh. F, pp. 15-16.) The court argued that petitioner had voluntarily chosen to forego the benefit of his bargain when he made the Proposition 47 motion to reduce. The court wrote that the choice is the defendant’s: either seek a reduction and lose the benefit of the plea bargain or forego the benefit of Proposition 47 in order to keep the conviction of a lesser offense. The court also concluded that giving up the plea bargain did not disadvantage the defendant. (Exh. F, pp. 16-18.) The court said that if counts were reinstated, petitioner could not receive a greater sentence than he received as part of the plea agreement. (Exh. F, pp. 22-25.) The court granted the prosecution’s motion to withdraw from the plea and reinstate charges. (Exh.F, p. 26.) On April 6, 2015, petitioner’s counsel filed “Objections to Proposed Order,” which was attached to the Petition for Writ of Prohibition as Exhibit G. Petitioner framed the issue as whether or not, when a defendant gets the benefit of a Proposition 47 reduction to a misdemeanor, the prosecution is able to force the defendant to withdraw his plea and face the original charges. (Exh. G,pp.1-2.) At a hearing on April 6, 2015, the court said that reducing the conviction charge to a misdemeanor undercutthe plea bargain. The court said it would never have agreed to a misdemeanorbased uponthe facts of the case and petitioner’s record. That being said, Proposition 47 required the court to grant the motion and reduce the charge to a misdemeanor. The court also stated that the prosecution wasentitled to its plea bargain, which meant a felony conviction and 6 years in state prison. (Reporter’s Transcript of the Proceedings April 6, 2015, attached as Exhibit H to the Petition for Writ of Prohibition, hereafter RT, 3: 1-23.) The court ordered petitioner out from state prison so that he could understand the consequencesofthe court’s intended action. The only way for petitioner to avoid the consequence of having his plea vacated would be for him to withdraw his Proposition 47 petition. (RT 4: 5-28, 5: 1-21, 6: 7- 15.) On May12, 2015, the court issued an amended proposed order. The order wasattached to the Petition for Writ of Prohibition as Exhibit I. The court’s amendments dealt with T.W. v. Superior Court (2015) 236 Cal.App.4th 646. The trial court said that 7. W. did not address the issue of © whetherthere could be terms of a plea agreement that are so fundamental to the agreement that they could not be altered by subsequentlegislation. The trial court distinguished 7: W. by noting that the trial judge in that case said the existence of a plea bargain completely barred Proposition 47 relief. (Exh. I, pp. 7-9 and footnotes 7, p. 8, and 8, p. 9.) On May 22, 2015, the court made the amended proposed order final. The court stayed the order. (Reporter’s Transcript of the Proceedings May 22, 2015, attached to the Petition for Writ of Prohibition as Exhibit J.) The final order was attached as Exhibit K. On June 16, 2015, petitioner filed a Petition for Writ of Prohibition in the Second District Court of Appeal. On July 10, 2015, Division 5 issued an order denyingthe petition. A two-judge majority wrote: “Petitioner was originally charged with robbery in violation of Penal Code section 211. Pursuant to a plea agreement he pled to a felony grand theft person charge in violation of Penal Code section 487 and received an agreed-upon sentence of six years. The robbery charge was dismissed. While petitioner wasentitled to a reduction of his grand theft conviction to a misdemeanor andto recall his sentence pursuant to Penal Code section 1170.18, the People were also entitled to move to withdraw the plea bargain as a result of being substantially deprived of its benefits including a six year sentence. Petitioner fails to demonstrate the respondent court erred in granting the People’s motion to withdraw the guilty plea and reinstate the robbery charge under Penal Code section 211. (People v. Collins (1978) 21 Cal.3d 208, 215; People v. Nitschmann (2010) 182 Cal.App.4" 705, 707-710.)” The third justice separately wrote: “I would grant an order to show causeto decide this issue, which is one of statewide importance.” On July 17, 2015, a Petition for Review wasfiled. An answer and reply were filed and on September 23, 2015, this court granted review and transferred the case back to the Court of Appeal. On October 7, 2015, the Court of Appeal issued its order to show cause. The prosecution filed a written return and petitioner filed his reply. Oral argument was heard on November 16, 2015. The Court of Appeal, in a 2-1 decision, issued its published opinion on November 18, 2015. Justice Richard Mosk dissented. A modification of the dissenting opinion was filed on December 1, 2015. The opinion and modification are attached as Attachments A and B. The majority framed the issue as whether the People may withdraw from the plea agreementandreinstate the original charges where the plea- bargained felony charge becomes a misdemeanorasa result of Proposition 47. The majority concluded, relying upon People v. Collins, supra, 21 Cal.3d 208,that principles of contract law applied to plea bargains and that whenthe prosecutionlost the benefit of its bargain through the reduction of the conviction charge to a misdemeanor pursuant to Proposition 47, the bargain was violated and the original charge could be reinstated. The majority distinguished Doe v. Harris, supra, 57 Cal.4™ 64, saying that Doe only applied to statutory consequences of a plea (such as the sex offender registration at issue) and did not apply to negotiated terms, such as the length of the sentence. The majority distinguished the cases cited by 10 petitioner, claiming they were either inapplicable or related to statutory termsrather than negotiated terms. The majority also concluded that restoration of the original, more serious charge restored the status quo ante and thereforepetitioner could be sentenced to the maximum possible sentence (15 years) regardless of the six-year sentence imposed aspart ofthe plea agreement. The dissent concluded that Proposition 47 did not give the court power to rescind the plea, recall the sentence, or reinstate the original charges. The dissent relied upon Doe v. Harris for the proposition that plea bargains are deemedto incorporate the powerofthestate to change the law and that the plea bargain was not breached or made revocable by Proposition 47. The dissent argued that the law had changed,thatpetitioner was entitled to the reduction, and that no lawallowed the court to reinstate the original charges. The dissent distinguished Collins, finding that it involved a case where the defendant gainedtotalrelief from vulnerability to sentence because his crime of conviction had been repealed. Collins is not applicable because petitioner did not escape vulnerability to punishment but remained convicted with a lesser punishment. The dissent also wrote that allowing plea bargains to be revoked would frustrate the voters’ intent and expectations and could also impact any statute that would retroactively reduce a sentence. The dissent was undoubtedly referring to Proposition 36, the Three Strikes resentencinginitiative. 11 ARGUMENT I STANDARD OF REVIEW There are no disputed factual issues. The issue presented is purely legal and is subject to independent, de novo review. (People v. Cromer (2001) 24 Cal.4th 889, 893-94.) I PRINCIPLES OF STATUTORY CONSTRUCTION Proposition 47, a voter initiative, is construed in the same manner as statutes enacted by the Legislature. “In interpreting a voter initiative we apply the same principles that govern statutory construction. [Citation.] Thus, ‘we turn first to the languageofthe statute, giving the words their ordinary meaning.’ [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous,‘werefer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.’ [Citations.] In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ [Citation.]” (People v. Briceno (2004) 34 Cal.4th 451, 459, some internal quotation marks omitted.) If the language ofthe statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine intent is unnecessary. (Kavanaugh v. W. Sonoma County Union High School District (2003) 29 Cal.4th 911, 919.) Courts are not at liberty to seek hidden meanings not suggested by the statute. (People v. Knowles (1950) 35 Cal.2d 175, 183.) 12 lil THE TRIAL COURT DID NOT HAVE JURISDICTION TO VACATE THE PLEA BARGAIN AND REINSTATE THE ORIGINAL CHARGES The majority concluded that the Proposition 47 reduction of the conviction crime to a misdemeanor violated the terms of the plea agreement, resulting in the prosecution not receiving the benefit of its bargain. Relying upon People v. Collins, the majority held that the prosecution wasentitled to withdraw from the plea bargain andreinstate the original counts — includingthe original maximum sentence. The majority’s conclusion is incorrect. Doe v. Harris controls and the change in the law wrought by Proposition 47 is deemed to be incorporated into the plea agreement. Proposition 47 did not authorize the plea bargain to be vacated and the original chargesreinstated. Proposition 47 enacted Penal Code section 1170.18, which creates a comprehensive statutory scheme requiring a court to resentence defendants who have been convicted of qualifying crimes and who are both eligible and suitable as those terms are defined. There has been no dispute that petitioner was both eligible and suitable for Proposition 47relief. The majority erred when it allowed the prosecution to withdraw from the plea agreementandreinstate the original charge. There is nothing in section 1170.18 that gives courts that power. Thatstatute only allows courts to reduce a qualifying charge to a misdemeanor, resentence the defendant, and place him on parole. Courts have no powerto do anything else and the court acted in excess ofits jurisdiction when it vacated the plea agreement and reinstated the original charge. Justice Mosk’s dissent gotit right. The majority failed to recognize that it had no power to read 13 Proposition 47 to add power not envisioned by the voters or contained in the languageoftheinitiative. In pertinent part, Penal Code section 1170.18 states: (a) 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 underthe act that added this section ("this act") had this act been in effect at the time of the offense maypetition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code,as those sections have been amendedor added by this act. (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (d)A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part ofits resentencing order, releases the person from parole... . (e) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence. (i) The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 14 Assuming that a defendantis eligible and suitable, a court only has the authority to recall the sentence and resentence the person to a misdemeanor. The person must be given credit for time served and placed on parole unless parole is waived. The court cannot impose a longer sentence than the original sentence. Courts do not have inherent powerto recall a prison sentence and resentence the inmate. That poweris strictly a creation of statute. Courts do not have to powerto enlarge the recall statutes and perform actions that the statutes do not explicitly allow. The trial court and the majority seriously departed from the provisions of Proposition 47. Thetrial court erred as a matter of law, vastly exceededits jurisdiction, and made a void order. The majority compoundedthat error. The well-established rule is that courts lose resentencing jurisdiction once sentence has been executed. (See People v. Thomas (1959) 52 Cal.2d 521; Holder v. Superior Court (1970) 1 Cal.3d 779, 783.) In 1976 the Legislature enacted Penal Code section 1170, subdivision (d). The Legislature created an exception to the general rule and gave courts the powerto recall a sentence within 120 days of commitment on the court’s own motion and within specified parameters. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) Trial courts do not have a free-floating power to recall prison sentences. The power granted by Penal Codesection 1170, subdivision (d), is limited and subject to certain conditions. (People v. Delson (1984) 161 Cal.App.3d 56, 62.) Section 1170, subdivision (d)’s provisions mustbestrictly followed. The 120-day time frame, for example, is mandatory and courts do not have the powerto extendit for any reason. (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1755.) 15 Penal Code section 1170.126, enacted by Proposition 36, is another sentence recall statute. Courts acting pursuant to section 1170.126 must strictly follow the conditionsset forth in the statute. In People v. Brown (2014) 230 Cal.App.4th 1502 an inmate who wasineligible for 1170.126 resentencing argued thatthe trial court had the powerto dismiss disqualifying priors pursuant to Penal Code section 1385. The Brown court explained that Proposition 36 did not givetrial courts the power to resentence beyond the conditions specified in the statute. The only power thetrial court had was to deny the resentencingpetition if the defendantdid notstatutorily qualify. Proposition 47 is an additional exception to the rule that courts do not have the inherent powerto recall executed prison sentences. Just as with Penal Code sections 1170, subdivision (d), and 1170.126, courts are without powerto act beyondthe power grantedbythe statutory scheme. Proposition 47 created a complete statutory scheme. In so doing the voters precluded the court from imposing other conditions. This inherent prohibition is similar to that found in the deferred entry of judgment and former diversion statutes. There, courts only have the powers enumerated in the statutes. Courts lack the power to impose additional conditions not permitted by the statute, such as a search and seizure condition. (Frederick v. Justice Court (1975) 47 Cal.App.3d 687, 689-690; see also Terry vy. Superior Court (1999) 73 Cal.App.4th 661.) With Proposition 47, voters gave trial courts the power to do only those things enumerated in Penal Code section 1170.18. Thetrial court determines eligibility and suitability; the court can put the person on parole; and cannot resentence to a greater term. There is no provision in the statutory schemefor the court to do anything else. Thereis no provision in the statutory scheme for the court to vacate the plea bargain and then 16 U R E S S t o S T E 7 reinstate dismissed counts as the trial court did and the majority approved. The voters did not open that door when they approved Proposition 47. The trial court’s error was jurisdictional and thereforeits order is void. (People v. Brewer (2015) 235 Cal-App.4th 122, 136-37.) The trial court properly considered and granted petitioner’s Proposition 47 reduction petition. The court then veered off of the Proposition 47 pathway and issued an order that it had absolutely no jurisdiction to issue. Proposition 47 did not give the court that authority and the court had no inherent authority to reinstate counts and vacate a plea bargain. The majority erred whenit upheld the trial court’s action. IV DOE V. HARRIS ESTABLISHES THAT PLEA BARGAINS ARE SUBJECT TO THE POWEROF THESTATE TO CHANGE THE LAW; THERE WASNO LEGAL BASIS TO GRANT THE PROSECUTION’S MOTION TO WITHDRAW FROM THE PLEA BARGAIN AND REINSTATE THE ORIGINAL CHARGE AND POTENTIAL SENTENCE In its written order, the trial court phrased the issue this way: “whether the terms that are altered by the application of Penal Code section 1170.18 were so fundamentalto the plea agreementthat it would be illegal to apply them to the plea bargain in this case.” (Exh. K, p. 7.) The majority similarly stated that Proposition 47 altered a material term of the plea agreement (the sentence and felony conviction) and therefore the plea could not stand. The issue is this: What happens when a plea-bargained felony charge becomes a misdemeanorasa result of Proposition 47? Does the defendant get the benefit of the Proposition 47 reduction? If yes, can the defendant be 17 forced to withdraw his plea and once again face the original, more serious felony charge(s)? The original charge here was robbery, a strike. The negotiated disposition was a plea to grand theft person, a non-strike, for 6 years in state prison. Grand theft person is now a Proposition 47 misdemeanor, petitioner was both eligible and suitable for the reduction, and the court properly granted the reduction. The prosecution, however, moved to withdraw from the plea agreement and reinstate the original charge and enhancements. The trial court improperly granted the prosecution’s motions. The majority improperly upheld thetrial court’s ruling. Therule in California is very clear. “We ... rephrased the question as: ‘Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changesin the law?’ Werespond that the general rule in California is that the plea agreement will be ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.’ (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) That the parties enter into a plea agreement thus does not havethe effect of insulating them from changes in the law that the Legislature has intended to apply to them.” (Doe v. Harris (2013) 57 Cal.4th 64, 66, someinternal quotation marks omitted.) Doe v. Harris, when applied to this case, means exactly whatit says: the law has changed andpetitioneris entitled to the benefit of that change. As stated above, there is nothing in Proposition 47 that endows the court with the power to force a defendant to withdraw his plea and to reinstate dismissed counts. Doe v. Harris cannot reasonably be read to allow such an occurrence. Thefact is that this court has repeatedly rejected 18 the argument that when there is a disadvantageous change in the law the defendant can avoid that change by hiding behind the terms of a plea agreement. “Both Swenson [Swenson v. File (1970) 3 Cal.3d 389] and Gipson recognize that the Legislature, for the public good and in furtherance ofpublic policy, and subject to the limitations imposedby the federal and state Constitutions, has the authority to modify or invalidate the terms of an agreement. Our explanation in Swenson that, as a general rule, contracts incorporate existing but not subsequent law, does not mean that the Legislature lacks authority to alter the terms of existing contracts through retroactive legislation. Nor should it be interpreted to mean that the parties, although deemed to have existing law in mind when executing their agreement, must further be deemed to be unaware their contractual obligations may be affected by later legislation made expressly retroactive to them,or that they are implicitly agreeing to avoid theeffect of valid, retroactive legislation. Gipson explainsthat the parties to a plea agreement—an agreement unquestionably infused with a substantial public interest and subject to the plenary control of the state—are deemed to know and understand that the state, again subject to the limitations imposed by the federal and state Constitutions, may enact laws that will affect the consequences attending the conviction entered upon the plea. The holdings in the cases are not inconsistent; both reflect California law. Gipson, however, applies here, while Swenson does not.” (Doe v. Harris at p. 71.) This language is very strong and veryclear. The Legislature, and the voters via initiative, can change the law and alter the terms of plea bargains, subject to Constitutional limitations. This court further explained: “As we have said, the general rule in California is that plea agreements are deemedto incorporate the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. As an adjunct to that rule, and consistent with established law holding that silence regarding a statutory consequence of a conviction does not 19 generally translate into an implied promise the consequencewill not attach, prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law.” (Doev. Harris at p. 71.) “For the reasons we have explained, the general rule in California is that a plea agreement is ‘deemedto incorporate and contemplate not only the existing law but the reserve power of the state to amendthelaw or enact additional laws for the public good and in pursuance of public policy. (Gipson, supra, 117 Cal.App.4th at p. 1070.) It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreementto reference the possibility the law might changetranslate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law.” (Doe v. Harris at pp. 73-74.) This is clear language. A plea agreement is not breached just because there has been a changein the law that disadvantages oneside or the other. This is not a situation where one side or the other has breached the plea agreement!/, thus allowing a remedy such as specific enforcement of the plea agreement or withdrawalof the plea. (See, for example, People v. Mancheno (1982) 32 Cal.3d 855, 860.) 'y/ Thetrial court and the majority blamepetitioner for putting himself in a situation where the plea must be withdrawn. This assertion is ludicrous. The law has changed and petitioner has done nothing more than avail himself of the change in the law that applies to him. A defendant cannot be punished for asserting his or her rights. “For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” (United States v. Goodwin (1982) 457 U.S. 368, 372.) 20 This court reinforced the meaning of Doe v. Harris this year in Johnson v. DepartmentofJustice (2015) 60 Cal.4th 871. “As for offenders who entered plea agreements, the general rule in California is that a plea agreement is deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. (Doe v. Harris (2013) 57 Cal.4th 64, 73.) It therefore follows that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreementto reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. (/d. at pp. 73—74.)” (Johnsonat p. 888, fn. 10, internal quotation marks omitted.) The fact that the law change was unknownto the prosecution, the defendant, and the court is of no moment. Whatis significantis that when legislation is retroactive, and not merely prospective, it will act to defeat the expectations of those who acted in reliance upon then-existing law. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1213-14.) Although Evangelatos involved civil law, the concept is equally applicable to criminal law, within Constitutional limitations. Proposition 47’s terms are very clear: it is to be applied asif it were in existence at the time of the commission of the crime. (Pen. Code § 1170.18, subd.(a).) Another case that has applied Doe v. Harris is People v. Smith (2014) 227 Cal.App.4th 717, which considered how an amendment to Penal Code section 1203.4 impacted a plea agreement. The Smith Court examined, explained, and applied Doe v. Harris. “We start from the premise that, in the absence of constitutional restrictions, the general rule governs here (Doe, supra, 57 Cal.4th at p. 68), and that rule is plea agreements do not insulate the parties thereto ‘from changes in the law that the 21 Legislature has intended to apply to them.’ (/d. at 66.) The corollary to that rule also governs here: ‘prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law.’ (/d. at 71.)” (Smith at p. 730.) “In other words, in the absence of constitutional constraints, the contract to which a grant of probation gives rise must be ‘deemed to incorporate and contemplate not only the existing law but the reserve powerof the state to amend the law or enact additional laws for the public good and in pursuance of public policy.’ (Doe, supra, 57 Cal.4th at p. 66, quoting People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) We conclude, in the absence of constitutional constraints, a probationer’s entitlement to relief under section 1203.4 is not frozen at the time of the probationary grant but is subject to subsequent legislative amendmentsto the statute.” (Smith at p. 731.) Another way to lookatit is this: “The subsequent change in the law supersedes the terms of the plea agreement.” (People v. Murillo (2002) 102 Cal.App.4th 1414, 1420.) Although the majority claims that new laws only trump statutory consequences of plea and not negotiated terms such as sentence, Murillo undercuts that claim. In Murillo the defendant had entered into a plea agreement for 16 months in prison if she failed probation. (Murillo at p. 1420.) The Murillo court held that Proposition 36 (the drug initiative, not the Three Strike initiative) controlled and that the plea agreement was superseded. This is an example of how the majority got it wrong. T.W. v. Superior Court (2015) 236 Cal.App.4™ 646 specifically applied Doe v. Harris in a Proposition 47 case to allow a plea bargained charge to be reduced to a misdemeanor. It is yet another case where a changein the law superseded the plea bargain. T.W. did not merely involve the application of statutory consequences of a plea, but instead the very 22 terms of the negotiated disposition. T.W. cannot be distinguished from our case. In T. W. the juvenile court refused to reduce the minor’s charge to a misdemeanorbecauseit concluded that Proposition 47 did not apply to plea bargains. Muchlike ourfacts, the prosecution bargained to dismiss a charge ofrobbery in return for a plea to a lesser charge, receiving stolen property. The 7.W. court examined the statutory scheme and noted that it plainly applied to convictions obtained both bytrial and plea. The court analyzed Proposition 47’s language with an eye toward implementing the intent of the voters, and concluded that the language and intent of Proposition 47 plainly applied to plea bargains. The 7.W. court applied Doev. Harris to support its conclusion. “This outcome is consistent with the general rule announced by our Supreme Court in Doe v. Harris (2013) 57 Cal.4th 64: [T]he general rule in Californiais that the plea agreement will be deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good andin pursuanceofpublic policy... . [Citation] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.(dd.at p. 66.)” (TW. at p. 653, fn. 4.) Our case is very similar to 7.W. in that the most serious charge, which was dismissed as part of the plea agreement, is a robbery charge. The conviction charge in our case is a less-serious grand theft, while the adjudicated charge in T. W.is less-seriousreceiving stolen property. Really, there is no difference between the two cases and 7.W. undercuts the majority’s holding. California law is replete with examples of cases that hold that plea bargains are deemedto incorporate the reserve powerofthe state to amend 23 the law or enact additional laws. (See, e.g., Way v. Superior Court (1977) 74 Cal.App.3d 165; People v. Acuna (2000) 77 Cal.App.4" 1056; and People v. Gipson, supra, 117 Cal.App.4th 1065.) The passage of Proposition 47 is not the first time that sentences have been reduced for inmates serving terms they agreed to as part of plea bargains. Courts have long held that legislation reducing the punishment for offenders may be applied to inmates serving sentences. (See Way v. Superior Court, supra, 74 Cal.App.3d 165; People v. Community Release Bd. (1979) 96 Cal.App.3d 792; Freemanv. United States (2011) __ U.S.__, 131 S.Ct. 2685.) In California, sentences were reduced for many inmates serving indeterminate sentences under the Indeterminate Sentencing Law when the state transitioned to the Determinate Sentencing Law (“DSL”). These sentence reductions were challenged under several theories including the argument that the new law did not applyto plea bargains. The court in Way held that the “plea bargain between the prosecution and the defendant is merely an agreement between them asto a disposition which will be submitted to the judge for his adoption, if he so chooses. It vests no rights other than those whichrelate to the immediate disposition of the case.” (Way at p. 180.) Way upheld the retroactive application of the DSL to inmates who resolved their cases through plea bargains, even though that could result in the early release ofprisoners. The majority, apparently seeing that Way is on point, relegated Way to a footnote and tried to distinguish it by claimingthat it did not address plea bargains nor did it consider reinstating the original charges. In fact, the Way court did consider plea bargains and retroactivity and held as quoted above. Way also undercuts the majority’s claim that Doe v. Harris and the other cases cited by petitioner only applied to statutory consequencesof a 24 plea and not negotiated items such as sentence length. Way specifically involved some defendants with plea-bargained sentences and the fact that those sentences would be shortened by the change from the Indeterminate Sentencing Law to the Determinate Sentencing Law. Way is not distinguishable. In People v. Acuna, supra, 77 Cal.App.4™ 1056, the defendant pleaded guilty to violating Penal Code section 288. At the time of the defendant’s plea and sentencing, Penal Code section 1203.4 permitted him to apply to the court to have his conviction expunged after probation concluded. However, in 1997, the statute was amended to prohibit “expungement” for convictions of Penal Code section 288. On appeal, Acuna argued that the application of the amended statute to his case deprived him of the benefit of an implied term of his plea bargain that he would be permitted to seek expungementunderthe law in effect at the time of his plea. (Acuna at p. 1062.) The Court of Appeal rejected those arguments and ruled that the retroactive application of the amendment to the defendant did not deny him the benefit of his plea bargain. (Id) In People v. Gipson, supra, 117 Cal.App.4th 1065, the Court of Appeal considered whether a prior conviction could be used as a “strike” whenthe conviction wassustained prior to the passage of the Three Strikes Law. Gipson asserted that his 1992 plea bargain “was a contract between the State and him which the Legislature could not impair by subsequent enactments.” Gipson further asserted that the subsequently enacted Three Strikes provisions under which he was sentenced violated the contract clauses of both the federal and state Constitutions. (Gipson at p. 1068.) The Court of Appeal denied the defendant’s contract clause challenge and held that the plea bargain contemplated the Legislature’s ability to change the law. (Gipson at p. 1070.) 25 These cases stand for the proposition that regardless of whether a subsequent change in the law is beneficial or detrimental to a defendant, retroactive application of changes in the law doesnot violate a plea bargain. Vv PEOPLE V. COLLINS IS DISTINGUISHABLE AND HAS BEEN IMPLIEDLY OVERRULEDBYDOE V. HARRIS The trial court, and the Court of Appeal, relied upon People y. Collins (1978) 21 Cal.3d 208. Collins is factually distinguishable from petitioner’s case. In addition, Collins has been limited or overruled sub silentio by Doe v. Harris. Collins is readily distinguishable because that case involved a statute defining a crimethat was repealed entirely. As stated by this court, “[w]hen a defendant gains fofalrelieffrom his vulnerability to sentence, the state is substantially deprived of the benefits for which it agreed to enter the bargain.” (Collins at p. 215, emphasis added) In Collins, the defendant was indicted in 1974 on fifteen separate felony counts. Pursuant to a plea bargain, defendant pleaded guilty to one count of non-forcible oral copulation, and all other charges were dismissed. Between the time that he pleaded and was sentenced, the Legislature completely repealed his conviction charge. Mr. Collins objected to being sentencedto prison on the now-repealed crime. On appeal, this court agreed that the defendant could not be sentenced on the repealed crime. This court held that the prosecution was deprived of the benefit of its bargain by the relief the court was granting (reversing the sole conviction), and concluded that dismissed counts could be restored. (Collins at p. 215) Collins presents a significantly different factual scenario. In Collins, the entire crime had been repealed. Asthis court wrote, “it is [the 26 defendant’s] escape from vulnerability to sentence that fundamentallyalters the character of the bargain.” (Collins at p. 215.) Here, petitioner remains convicted and his punishment has been reduced due to Proposition 47. Moreover, to the extent that Collins might be said to apply to Proposition 47 cases, it cannot be reconciled with Doe v. Harris. Collins was not cited in Doe. Overruling a prior case may be done expressly or indirectly, and when doneindirectly, overruling may occur in twostages. (1) A prior authority may be first overlooked, ignored, or purportedly distinguished on untenable grounds. (2) Then, in a later decision, it may be recognized that the early case was impliedly overruled by the later one. (Witkin, California Procedure (Sth ed. 2008) Ch. XIII, § 541.) Collins cannot be reconciled with Doe v. Harris and thus cannot be said to reflect the currentstate of the law. VI REINSTATING THE ORIGINAL POTENTIAL SENTENCE WAS ERROR The majority not only allowed the original charge to bereinstated, it also reinstated the original potential maximum sentence. This is very clear error. The majority claims that by filing a Proposition 47 petition, petitioner repudiated the plea agreement. Nothing could be further from the truth. Petitioner did nothing more than the law allows. He cannot be punished for asserting his Constitutional and statutory rights. (United States v. Goodwin, supra, 457 U.S. 368, 372.) Although petitioner has argued that Collins is no longer valid law, there is one part of Collins that does remain and is controlling here. In Collins this court made it very clear that principles of double jeopardy 27 preclude imposing a greater sentence upon reversal than was imposed originally. (Collins at pp. 216-217.) Proposition 47 itself also contains clear language prohibiting what the majority is allowing: “Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence.” (Pen. Code § 1170.18, subd.(e).) The Court of Appeal majority is just plain wrong and they cite nothing that supports their conclusion. Vil THE MAJORITY’S RULING LEADS TO ABSURD CONSEQUENCES, WOULD GUTTHEINITIATIVE, AND IS CONTRARYTO THE INTENT OF THE VOTERS Proposition 47 by its own language contemplates its application to cases that are resolved by pleas, including plea bargains. (Penal Code § 1170.18(a).) The reality of criminal practice in California is that approximately 95 per cent of all criminal cases are resolved through plea bargains. (Plea Bargains are Ubiquitous. But are they Un-American? by San Francisco Public Defender Jeff Adachi, San Francisco Examiner, June 21, 2015, http://www.sfexaminer.com/justice-matters-plea-bargains-are- ubiquitous-but-are-they-un-american/ as of December 22, 2015.) The Court of Appeal in this case, however, construed Proposition 47 so that it cannot be applied to plea bargained cases. Why would the voters pass a law that applies to pleas but not to plea bargains? The conclusionthat this is what the voters intended is unreasonable. Proposition 47’s language makes the initiative’s goals extremely clear. The initiative seeks to channel incarceration spending to serious crime, to maximizealternatives to incarceration for nonserious crime, and to invest the savingsin children’s and adult programs. These goals apply to 28 individuals convicted ofall qualifying offenses, including convictions after trial or plea. Proposition 47 includes a Purpose and Intent clause enumerating, with greater specificity, the intent and expectation that substantial cost savings be realized by the passage ofthe initiative. These lofty cost- savings estimates would be unachievable if individuals convicted by plea bargain were excluded from relief. The savings anticipated from reductions in the population ofprisoners would largely evaporate. The statute specifically includes convictions obtained by plea and does not exclude convictions obtained by plea bargain. The holding ofthe majority is inconsistent with the statutory requirement that Proposition 47 must be liberally construed. The last sentence of the Proposition reads: “This act shall be liberally construed to effectuate its purposes.” (Prop. 47, Sec. 18.) CONCLUSION It is respectfully requested this court grant the Petition for Review. Respectfully submitted, RONALD L. BROWN, PUBLIC DEFENDER OF LOS ANGELES COUNTY, CALIFORNIA Albert J. Menaster, Rourke Stacy, Mark Harvis, Deputy Public Defenders - By _-—— MARK HARVIS Deputy Public Defender (State Bar No. 110960) Attorneys for Petitioner 29 CERTIFICATE OF COMPLIANCE Counsel ofrecord certifies, pursuant to California Rules of Court, rule 8,204(c)(1), the Petition for Review in this action contains 8,310 words, including footnotes. Counsel has relied on the word count of the word processing program used to preparethisbrief. Date: December 23, 2015 |_ MARK HARVIS 30 APPENDIX A_ Lae, Filed: 11/18/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECONDDIST. SECOND APPELLATE DISTRICT F I L E D DIVISION FIVE Nov 18, 2015 JOSEPHA. LANE,Clerk MORRIS GLEN HARRIS,JR., No. B264839 D. LEE Deputy Clerk Petitioner, (Super. Ct. No. BA408368) v. (Henry J. Hall, Judge) THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. ORIGINAL PROCEEDING.Petition for writ of prohibition from an order of the Superior Court of Los Angeles County. Henry J. Hall, Judge. Petition denied. Ronald L. Brown, Public Defender, Albert J. Menaster, Head Deputy Public Defender, Rourke Stacy, Mark Harvis, Deputy Public Defender, for Petitioner. Jackie Lacey, District Attorney, Phyllis Asayama, Matthew Brown, John Pomeroy, Deputy District Attorneys, for Real Party in Interest. Aspart of a plea agreement, defendant Morris Glen Harris, Jr. (defendant) pled guilty to a felony charge of grand theft from a person and agreed to admit priorstrike and receive a six-year prison sentence, in exchange for dismissal of the more serious felony charge of robbery. More than yearlater, California voters passed Proposition 47, which allowed defendantto petition for reduction of his felony grand theft conviction to a misdemeanor. The issue presented is whether the People may withdraw from the plea agreementandreinstate the original charges where the plea-bargained felony charge becomes a misdemeanorasa result of Proposition 47. Underthe circumstances of this case, we conclude that reduction ofthe plea- bargained felony charge to a misdemeanor under Proposition 47 deprives the People of the benefit of the bargain of its plea agreement. Therefore, the People are entitled to withdraw from the plea and reinstate the previously-dismissed charges, thus returning the parties to the status quo ante. FACTUAL AND PROCEDURAL BACKGROUND On February 11, 2013, Francisco Pascual Diego was walking downthestreet whena personhelater identified as defendant approached him from behind, hit him on the face, and took his cell phone. Diego chased defendant and flagged down twopolice officers. Diego pointed out defendant, who was running downthestreet, and told the officers that defendanthad stolen his cell phone. There was no oneelse running down the street. The officers chased defendant and detained him. Diego’s cell phone was found on the ground about one foot away from defendant’s left foot. The People filed an information charging defendant with one count of robbery in violation ofPenal Code section 211.! The informationalleged that defendant hadsix prior felony convictions, including a prior conviction for robbery (§ 211), whichis a serious felony under section 667, subdivision (a)(1) and therefore a “strike” for purposes of the three strikes law. 1 All further statutory references are to the Penal Code, unless otherwise specified. 2 Defendant then soughtto resolve the case for a “non-strike” offense. On April 17, 2013, the parties entered into a plea agreement, by which defendant pled to one count of grand theft from a person (§ 487, subd. (c)), which is not a serious or violent felony under sections 667.5, subdivision (c) and 1192.7, subdivision (c), and therefore not a “strike” offense for purposesofthe three strikes law. As part of the agreement, defendant admitted the priorstrike allegation and the People dismissed the robbery charge and other related allegations. Defendant was sentencedto six years in prison in accordance with the parties’ plea agreement. He wasgiven credit for 170 days in custody: 85 actual days and 85 days of good time/work time. Because defendant admitted a prior “strike,”his post-sentencing credits are cappedat one-fifth the total term of imprisonment. (§ 1170.12, subd. (a)(5).) Thus, his earliest possible release date was October7, 2017. On November4, 2014, California voters passed Proposition 47, “The Safe Neighborhoods and Schools Act.” Its goal was to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, a numberof felony offenses were redefined as misdemeanors, including thefts of property valued at less than $950. (See § 490.2, subd.(a).) Proposition 47 also enacted section 1170.18, which creates a statutory scheme for the resentencing of individuals who were already serving a felony sentence for a crime that became a misdemeanor under Proposition 47. Section 1170.18, subdivision (a) states: “A person currently serving a sentence for a conviction, whether by trialorplea, of a felony or felonies who would have been guilty of a misdemeanor underthe actthat added this section (‘this act’) had this act beenin effect at the time ofthe 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 in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 ofthe Penal Code, as those sections have been amendedor addedbythis act.” (§ 1170.18, subd. (a) [emphasis added].) Onits face, therefore, Proposition 47 was intended to apply to prisoners who pled to felonies covered by the law,as well as those convicted followingtrial. (See also 7. W. v. Superior Court (2015) 236 Cal.App.4th 646, 653 [petitioner entitled to Proposition 47 relief even though his conviction was obtained by plea agreement].) Section 1170.18 also makes clear that the inmate must choose to petition for resentencing. A court may not grant Proposition 47 relief sua sponte to a prisoner who does notproactively seekit. Pursuantto section 1170.18, defendantfiled a petition for recall of sentence on January 27, 2015, seeking to havehis grand theft conviction reclassified as a misdemeanor. Taking into accounthis pre-sentencing custody credits, he had served just over two years and two monthsin prison at that time. The People did not contest defendant’s claim that he wasentitled to relief under Proposition 47. Instead,it filed a motion to withdraw from the plea agreement and reinstate the previously-dismissed charges. The People argued that defendant was entitled to reclassification of his conviction, but the result would deny the People the benefit of the bargain of the negotiated plea agreement, thus entitling it to withdraw from the agreement. Thetrial court then ordered defendant to personally appear so that he could decide, with the advice of counsel, whether to proceed with his petition, or to withdraw it in light of the People’s motion to withdraw from the plea agreement. After defendantelected to proceed with his petition for relief under Proposition 47, the trial court issued an order granting both defendant’s petition for recall of sentence and the People’s motion to withdraw from theplea andreinstate theoriginal charges. Defendant subsequentlyfiled a petition for writ of mandate, seeking review ofthetrial court’s order granting the People’s motion to withdraw the plea agreementand reinstate the previously dismissed charges. After we summarily denied the petition, the Supreme Court granted a petition for review and directed us to issue an order to show cause. On October 7, 2015, weissued an order to show cause whythe court should not grantthe relief sought by defendant. We now denythepetition. 4 DISCUSSION A, Legal Standard “Wetraditionally review findings of fact under a deferential standard of substantial evidence, and findings of law undera de novo standard.” (People v. Holmes (2004) 32 Cal.4th 432, 442.) “A negotiated plea agreementis a form of contract, andit is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767.) ““The fundamental goal of contractualinterpretation is to give effect to the mutualintention of the parties. (Civ. Code, § 1636.)’” ([bid.) B. Benefit ofthe People’s Bargain The Supreme Court has explainedthe natureofplea bargaining as follows: ““The process ofplea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court... . Pursuant to this procedure the defendantagrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted ofall offenses charged.’” (People v. Collins (1978) 21 Cal.3d 208, 214 (Collins), quoting People v. Orin (1975) 13 Cal.3d 937, 942.) “A plea agreementis, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.””” (People v. Segura (2008) 44 Cal.4th 921, 931.) Thetrial court may decide not to approve the terms of a plea agreementif it does not believe the agreed-upon disposition is fair. (Ibid.) However, once the trial court accepts the agreement, thenit, like the parties, are bound by its terms. (Id. at p. 930.) In Collins, the Supreme Court addressed head on the question ofwhat happens when a changein law deprives either the People or the defendantofthe benefit of the bargain of the plea agreement. The defendantin Collins was charged with fifteen felony counts. (Collins, supra, 21 Cal.3d at p. 211.) Pursuant to a plea agreement, he pled to 5 one count of non-forcible oral copulation in exchange for dismissal of the other fourteen charges. (/bid.) Before judgment was entered, the court found the defendantto be a mentally disordered sex offender and ordered him committed for an indefinite period. (Ibid.) While defendant was committed, the Legislature decriminalized non-forcible oral copulation. (/bid.) The Supreme Court held the defendant could not be convicted and sentenced as contemplated by the plea agreement, as the pled-to offense was no longer a punishable crime. (Jd. at p. 213.) At the sametime, the Court held, the People were entitled to restore the dismissed counts. (/d. at p. 215.) This was because the change in law had “destroy[ed] a fundamental assumption underlying the plea bargain — that defendant would be vulnerable to a term of imprisonment” — thus depriving the People of the benefit of its bargain. (/d. at pp. 215-216.) The People argue, and weagree, that Collins controls the outcomein this case. As part of the plea agreement, the parties agreed that defendant would serve a six-year prison term in exchange for dismissal of the robbery chargeandrelated allegations. This prison term was a “fundamental assumption”ofthe plea bargain. (See Collins, supra, 21 Cal.3d at p. 215 [“The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant’s vulnerability to a term ofpunishment”].) Atthe time of his petition for resentencing under Proposition 47, defendant had served just over two years in prison, including his pre-sentencing custodycredits. Because misdemeanorsare punishable by a maximum ofsix monthsin county jail (§ 19), defendant would be immediately released uponresentencing, having already served the maximum sentencefor the reclassified crime. Asin Collins, defendant is unquestionably entitled to a reduction in his sentence under Proposition 47, if he seeks it. The result, however, is a windfall to defendant that neither party contemplatedat the timethey enteredtheir plea agreement. Asthe Collins court stated: “Defendantseeksto gain relief from the sentence imposedbut otherwise leave the plea bargain intact. This is bounty in excess ofthat to which heis entitled.” (Collins, supra, 21 Cal.3dat p. 215 [footnote omitted].) The People’s remedy is to seek restoration of the dismissed chargesand allegations. (Ibid.) 6 Weare not persuaded by defendant’s argumentthat Collinsis distinguishable becausethat case involved a statute defining a crime that was repealed entirely. Collins applies the unremarkable principle that plea agreements are contracts entered into between the People and the defendant for reciprocal benefits. (/d. at p. 214.) “When either the prosecution or the defendantis deprived of benefits for which it has bargained, correspondingrelief will lie from concessions made.” (Jbid.) The People are surely deprived ofthe benefit of its bargain whetherthe bargain-for term of imprisonmentis entirely eliminated (as in Collins) or drastically reduced (as in this case). (See In re Blessing (1982) 129 Cal.App.3d 1026, 1031 [prosecution permitted to withdraw from plea where change in law reduced the defendant’s negotiated sentence of 16 1/3 years to 12 1/3 years].) The defendantalso argues that Collins was impliedly overruled by Doe v. Harris (2013) 57 Cal.4th 64 (Doe). Again, we disagree. Doe does not address Collins, and the holding in Doe does not repudiate the Supreme Court’s reasoning in Collins in a way that renders the two decisions irreconciliable. (See Richmond Ramblers Motorcycle Clubv. Western Title Guaranty Co. (1975) 47 Cal.App.3d 747, 758 [“‘[O}verruling by implication is no more favored than repealing by implication, and important cases of record of recent origin are not ordinarily to be considered as overruled by implication’’’}; Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824 [““[A] subsequent decision cannot, by mere implication, be held to overrule a prior case unless the principle is directly involved and the inference is clear and impelling’”].) The defendant in Doe was charged with six counts of lewd andlascivious acts upon a child under 14. (/d. at p. 66.) Pursuantto a plea agreement, he pled to one ofthe counts in exchange for dismissal of the others. (bid.) Thewritten changeofplea form stated that the maximum penalties for his conviction would be probation, participation in work furlough programs,fines, testing as required by former section 290.2, and registration as a sex offender undersection 290. (Doe, supra 57 Cal.4th at p. 66.) The parties did not discuss section 290 during the plea negotiations, other than to acknowledgethat the defendant would have to register underits provisions. (Doe, supra, 7 57 Cal.4th at p. 67.) At the time of the plea, section 290 provided that information gathered as part of sex offender registration process was available only to law enforcementofficers. (Doe, supra, 57 Cal.4th at p. 66.) Thirteen years later, the Legislature adopted “Megan’s Law,” making public the names, addresses, and photographsofregistered sex offenders. (Doe, supra, 57 Cal.4th at p. 66.) In 2007, the defendant filed a civil complaint in federal court, asserting that application of the law’s public notification provisions to him violates his plea agreement. (Jd. at p. 67.) The district court agreed with the defendant, finding that “‘one cannot reasonably interpret the language ofthe plea agreement, which reads “P.C. 290,” to mean [anything] other than compliance with that section of the Penal Code, as it was written at the timeofthe plea.’” ([bid.) On appeal, the Ninth Circuit Court of Appeal certified a question to the Supreme Court, which rephrased the inquiry as follows: “‘Under California law of contract interpretation as applicable to the interpretation ofplea agreements, does the law in effect at the time of a plea agreementbindtheparties or can the terms of a plea agreement be affected by changes in the law?’” (Doe, supra, 57 Cal.4th at p. 66.) After reviewing a series of relevant cases, the Court responded: “the generalrule in California is that the plea agreementwill be ‘“deemed to incorporate and contemplate not only the existing law but the reserve powerofthe state to amendthe law or enact additional laws for the public good andin pursuance ofpublic policy ....”’” (Id. at p. 73.) Concomitantly, “requiring the parties’ compliance with changes in the law maderetroactive to them does not violate the terms ofthe plea agreement, nor doesthe failure of a plea agreementto reference the possibility the law might changetranslate into an implied promise the defendantwill be unaffected by a change in the statutory consequences attending his or her conviction.” (/d. at pp. 73-74.) Doedid not involve a negotiated term ofa plea agreement, butrather,a “statutory consequence”of conviction. The sex offender registration requirement at section 290is “a statutorily mandated element ofpunishment for the underlying offense.” (Peoplev. McClellan (1993) 6 Cal.4th 367, 380.) It “is not a permissible subject of plea agreement 8 negotiation” and neither the prosecutor nor the court has authority to exempt a defendant from mandatory sex offenderregistration. (Ibid.) Precisely because the requirement of sex offenderregistration was not bargained-for (and could not have been bargained-for) betweenthe parties, a change in lawthat affects it cannot possibly undermineoralter the bargain madeby the parties. (See also Johnsonv. Department ofJustice (2015) 60 Cal.4th 871, 888 fn. 10 [citing Doe for the proposition that a defendant’s plea agreement is not violated where subsequent changesin the caselaw alter the defendant’s eligibility for relief from sex offender registration requirements].) The notion that Doe referred to unbargained-for “statutory consequences”of a conviction, rather than a negotiated term ofthe plea agreement, is reinforced by the cases examined and relied upon by the Doe Court. The holding in Doe — thata plea agreementis “‘deemedto incorporate and contemplate not only the existing law but the reserve powerofthe state to amendthe law or enact additional laws for the public good and in pursuanceofpublic policy. ...’” (See Doe, supra, 57 Cal.4th at pp. 66, 73; People v. Gipson (2004) 117 Cal.App.4th 1065, 1070 (Gipson).) The defendant in Gipson pled guilty in 1992, when section 667 provided for a recidivist penalty of five years for each prior serious felony and a one-year enhancement for each prior prison term served. (Gipson, supra, 117 Cal.App.4th at p. 1068.) When the defendant committed another felony nine yearslater, section 667 had been amended by the threestrikes law to requiring doublingofthe base term for each prior serious felony conviction. (Gipson, supra, 117 Cal.App.4th at p. 1068.) Like the sex offender registration provision addressed in Doe, the recidivist penalties at section 667 are “statutory consequences”of a conviction. They are not negotiated as part of a plea agreement. Andlike the Doe Court, the Gipson court held that the defendant’s 1992 plea agreement was deemedto incorporate “‘the reserve power ofthe state to amend the law or enact additional laws for the public good andin pursuance ofpublic policy.’” (Gipson, supra, 117 Cal.App.4th at p. 1070.) Three other cases discussed in the Doe opinion alsorelate to the statutory consequencesof a conviction, rather than negotiated termsofthe plea agreements. In re 9 Lowe (2005) 130 Cal.App.4th 1405, addressed the Governor’s authority to review parole decisions — an authority that did not exist at the time of the defendant’s plea agreement. The court noted that the parties’ plea agreement did not contemplate who would make defendant’s parole decision, and concluded that the Governor’s review of the defendant’s parole determination did not violate his plea agreement. (/d. at 1426.) People v. Acuna (2000) 77 Cal.App.4th 1056 and People v. Arata (2007) 151 Cal.App.4th 778 both involved defendants whopled to committing a lewd act upon a child under age 14 at a time whenthe law permitted them to seek expungementofthe conviction after they successfully completed probation. (Acuna, supra, 77 Cal.App.4th at p. 1058; Arata, supra, 151 Cal.App.4th at pp. 781-782.) The law was amended to prohibit expungement before the two defendants completed probation. In Acuna,the court held that the change in law did notdeprive the defendantof the benefit of his plea agreement, which did not mention expungement. (Acuna, supra, 77 Cal.App.4th at p. 1062.) The Arata court grantedrelief, finding that the “implicit promise”of expungement was “significant in the context ofthe plea bargain as a whole.” (Arata, supra, 151 Cal.App.4th at p. 788.) Notably, in discussing Arata, the Doe Court observed that the Arata court “did not find that as a generalrule any law in effect at the time of a plea agreement becomes a term of the agreement.” (Doe, supra, 57 Cal.4th at p. 73.) In other words, the Doe Court understood the Arata decision in light of the court’s factual conclusion that expungement was a “term of the agreement”at issue in that case. The suggestion, of course, is that the result would have been different if expungement were simply a consequencethat attached to the defendants’ convictions, rather than a negotiated term. This distinction is consistent with Doe’s statementthat “it is not impossible the parties to a particular plea bargain mightaffirmatively agree or implicitly understand the consequencesofa plea will remain fixed despite amendmentsto the relevant law.” (Jd. at p. 71.) In this case, there can be no question that Proposition 47 changes material and negotiated terms ofthe plea agreement, rather than the “statutory consequences” attached to defendant’s conviction. Defendant was on felony probation at the time of the crime 10 charged in this case. He hadsix alleged prior felonies, including a serious felony that counts asa first “strike” underthe three strikes law. He was charged with robbery, a violent felony that would have counted as a second “strike” against him. There was no doubt that the crime he committed was a robbery, and his counsel never argued otherwise. Nor does there appear to have been any weaknessesin the prosecution’s case against him. He wasarrested ashe fled the scene with the victim’s cell phone, which was found on the ground about a foot away from hisleft foot. The victim positively identified him at the scene. His maximum exposurewasfifteen years. Asthetrial court observed, a plea to a misdemeanor and a short county jail sentence was “nota viable andjust _ tesolution” ofthe case and it would not have approved theplea if that, in fact, had been the proposeddisposition. Rather, the People agreedto a six-year prison term and a felony disposition in exchange for a quick and certain resolution. Those were unquestionably “integral” and negotiated terms in the plea agreement(as in Collins), rather than unnegotiable statutory consequences that attached to the conviction (as in Doe andthecasesit discusses). Because Proposition 47 “fundamentally alters the character” of the bargain in this case and deprives the People ofthe benefit of its bargain, we hold under Collins that the People are entitled to withdraw from the plea agreement andreinstatementofthe previously-dismissed charges against defendant. Weare not persuaded by defendant’s argumentthat our holding would “gut” Proposition 47 because the vast majority of all criminal cases are resolved through plea 2 Defendant’s reliance on Way v. Superior Court (1977) 74 Cal.App.3d 165 (Way) is also misplaced. Way consolidated twocasesfiled by judges, district attorneys, and taxpayers whochallenged the retroactivity provision of the Determinate Sentencing Law (DSL). Theplaintiffs argued that the retroactivity provision had to be invalidated because it undermined numerousplea bargains andtherefore violatesarticle I, section 9 of the California Constitution, which states: “‘A ... law impairing the obligation of contracts may not be passed.”” (Way, supra, 74 Cal.App.3d at p. 180.) The Way court did not address whetherretroactive application of the DSL deprivethe People of the benefit of its bargain, nor did it consider whether the People could withdraw from the plea bargain and reinstate previously-dismissed charges. It therefore has no bearing on our decision today. 11 bargains. Althoughthe interpretation ofa ballotinitiative turns on the voters’ intent, the issue raised by defendant does not involvean interpretation of Proposition 47. Onits face, Proposition 47 permits inmates to petition for resentencing andreclassification of their crimes even if their conviction resulted from a plea. However, Proposition 47 never addresses the issue presented here, i.e., whether the reclassification and resentencing deprives the People of the benefit of its bargain. That is a contract issue, andits resolution is not controlled by the statutes enacted by Proposition 47, but rather by the laws governing contractinterpretation. Afterall, “voters are presumed to have been aware ofexisting laws at the timethe initiative was enacted.” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1048.) In the face of the voters’ silence on the matter, the traditional rules of contract govern. Nor do we believe the voters’ intent is contrary to our holding in this case. Proposition 47 was intended to reduce penalties for certain defendants who have committed nonserious and nonviolent crimes. At the sametime, its intent was not to reduce penalties for those who have committedserious crimes. Tothat end, the initiative states: “The people enact the Safe Neighborhoodsand Schools Actto ensure that prison spending is focused on violent and serious offenses, [and] to maximize alternatives for nonserious, nonviolent crime.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Underour holding today, defendants who committed serious crimes but pled down to a less serious felony may choose to keep the benefit of that bargain by declining to petition for resentencing undersection 1170.18, or they may seek a trial on the more serious crime that was alleged against them. What they maynotdois claim the benefit of a law that was intendedto assist nonserious and nonviolent criminals, when their actual crimes wereserious or violent or both. This result is fully in line with the intent ofthe voters, who intended to withholdrelief from serious or violent criminals just as much as they intended to grant relief to nonserious and nonviolentcriminals. 12 C. Benefit ofthe Defendant’s Bargain Having concludedthat the People mayreinstate the original robbery charge and related allegations against defendant, the next question that arises is whether any sentencingrestrictions will apply if defendantis later convicted ofthe previously dismissed charges. Citing Collins and double jeopardy principles, the trial court held that defendant’s exposure was limited to the six years that he agreedto aspart ofhis plea agreement. In its return to the order to show cause, the People argue this decision was erroneous, and that the parties must be returnedto the status quo ante. Because the People did notfile a petition for writ ofmandate challenging this decision, the matter is not squarely before this court. (See Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 922 [court may notgrant writ relief to respondent based on arguments raised in opposition, unless the respondenthas filed her ownpetition for writ of mandate].) Nonetheless, because this matter may arise upon subsequent proceedings, weprovidethe following guidanceto thetrial court. In concluding that the defendant in Collins wasentitled to preserve the benefit of his bargain, the Supreme Court highlighted the fact that the plea agreementin that case was undermined by “external events and not defendant’s repudiation”ofthe agreement. (Collins, supra, 21 Cal.3d at p. 216.) It cited to double jeopardy cases, where the Court’s concern “wasspecifically to preclude vindictiveness and more generally to avoid penalizing a defendant for pursuing a successful appeal.” (Jbid.) Given that the defendant in Collins was merely exercising his right to overturn an erroneous conviction, he should not be “penalized . . . by being rendered vulnerable to punishment more severe than underhis plea bargain.” (Jd. at p. 217.) In other words, the plea agreement in Collins was voided by external events, and not through the repudiation of the defendant. As a result, he was permitted to keep the benefit of his bargain and his sentence was capped at his maximum exposure under the plea agreement. In this case, however, Proposition 47 does not void defendant’s plea agreement, but only renders it voidable at defendant’s option. He mayelect to keep the benefit ofhis bargain and notpetition for resentencing. Oncehe decides to exercise his option to 13 petition for a lesser conviction than whathe agreedto, then he effectively repudiates the plea agreement. Having doneso, the plea agreementis deemed to be rescinded, and the parties are returned to the status quo ante. (See Collins, supra, 21 Cal.3d at p. 216 fn.3 [“whether the defendant repudiated his guilty plea . . . is a significant inquiry when determining whetherthe defendant ought to be permitted to enforce a plea bargain undermined by external events”].) DISPOSITION Thepetition for writ ofprohibition is denied. CERTIFIED FOR PUBLICATION KIRSCHNER, J. * I concur: TURNER, P.J. * Judgeofthe Los Angeles County Superior Court, assigned by the Chief Justice pursuantto article VI, section 6 of the California Constitution. 14 CERTIFIED FOR PUBLICATION Harris v. SCLA B264839 MOSK,J., dissenting I respectfully dissent. Petitioner originally was charged with robbery (Pen. Code, § 2111) and other offenses, but pursuantto a plea agreement? in 2013, he pled guilty to grand theft from a person (§ 487, subd. (c)) and wassentencedto six years in prison. Before completing that sentence, petitioner successfully petitioned to have his conviction reduced to a misdemeanor under Proposition 47, “The Safe Neighborhoods and Schools Act” (§ 1170.18), approved by the voters in November 2014. Then,at the request ofthe People,real party in interest, the respondentcourt, in effect, vacated petitioner’s plea and set his casefortrial on the theory that the People did not receive the benefit ofthe bargain in the plea agreement. A majority of this court denied petitioner’s petition for a writ to set aside the respondentcourt’s order. I dissented and said we should issue an order to show cause. The Supreme Court granteda petition for review and transferred the case back to this court with directions to vacate the order denying mandate andto issue an order directing the respondent court to show cause whythe relief sought by petitioner should not be granted. I agree with petitioner’s position that when a defendantpleads guilty to a lesser felony charge pursuantto a plea bargain, andthatchargeis later reduced to a misdemeanorpursuant to Proposition 47, the trial court cannot rescind the plea, recall the sentence, and reinstate the original charge or charges. 1 All further statutory references are to the Penal Code. 2 See section 1192.7, subdivision (b) for a definition of plea bargaining. A. Standard of Review Theissue here is one of law, and therefore the review is de novo. (People v. Cromer(2001) 24 Cal.4th 889, 893-894.) B. Section 1170.18 Proposition 47 enacted section 1170.18, which provides in part as follows: “(a) A person currently serving a sentence for a conviction, whether bytrial or plea, of a felony or felonies who would have been guilty of a misdemeanor underthe act that addedthis section (‘this act’) had this act been in effect at the time ofthe offense maypetition for a recall of sentence before the trial court that entered the judgmentof convictionin his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amendedoradded bythis act. [{] (b) Uponreceiving a petition under subdivision(a), the court shall determine whetherthepetitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision(a), the petitioner’s felony sentence shall be recalled andthe petitioner resentenced to a misdemeanorpursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been amendedor addedbythis act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonablerisk of danger to public safety. [§] ...[§] (d) A person whois resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of his or her sentence, unless the court, in its discretion, as part ofits resentencing order, releases the person from parole. [{] (e) Under no circumstances may resentencing underthis section result in the imposition of a term longer than the original sentence. [{] . . . [{] (i) The provisionsofthis section shall not apply to persons who haveoneor more prior convictions for an offense specified in clause (iv) of subparagraph (C) ofparagraph (2) of subdivision (e) of Section 667or for an offense requiring registration pursuant to subdivision (c) of Section 290.” C. Analysis Aspetitionersatisfied the criteria set forth in section 1170.18 enacted by Proposition 47, the trial court properly resentenced him to a misdemeanor. Thatstatute only permits the trial court to reduce the qualifying felony conviction to a misdemeanor, resentence the petitioner, and place him on parole. That statute does not authorize the trial court to reinstate dismissed counts. Thetrial court did not have any inherent authority to reinstate counts upon a recall ofthe sentence. Courts have only the powersspecified by statute. (See Frederick v. Justice Court (1975) 47 Cal.App.3d 687, 689-690; see Terry v. Superior Court(1999) 73 Cal.App.4th 661, 665; see also People v. Segura (2008) 44 Cal.4th 921, 930.) A changein the law doesnot affect a plea agreement. In Doev. Harris (2013) 57 Cal.4th 64 (Doe), the defendantentered into a plea agreement in which he agreedto plead nolo contendere to one of six counts of lewd andlascivious acts upon a child under the age of 14 (former § 288, subd. (a)), an offense that required sex offender registration, including providing certain information (former § 290), whichat the time was only available to law enforcement. Years later the Legislature madethat information available to the public. (§ 290.46.) The defendantfiled an action in a federal court arguing that requiring him to comply with the new law’s notification provisions violated the plea agreement. In responding to a question certified by the United States Court ofAppeals for the Ninth Circuit, the California Supreme Court considered whether a defendant’s plea agreement was, in effect, breached or violated by the amendment to California’s Sex Offender Regulation Act (§ 290 et seq.). The court held that the defendant was bound by the plea agreement notwithstanding the change in the law. The court said that, as explained in People v. Gipson (2004) 117 Cal.App.4th 1065, “the parties to a plea agreement—an agreement unquestionably infused with a substantial public interest and 3 subject to the plenary control of the state—are deemed to know and understandthat the state, again subject to the limitations imposed by the federal and state Constitutions, may enact lawsthat will affect the consequences attending the conviction entered upon the plea.” (Doe, supra, 57 Cal.4th at p. 70.). The court added that “prosecutorial and judicial silence on the possibility the Legislature might amenda statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendantwill not be subject to the amended law.” (/d. at p. 71.) The court said that the “general rule in California is that the plea agreement will be ‘““deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good andin pursuanceofpublic policy.” [Citation.] That the parties enter into a plea agreement thus doesnot have the effect of insulating them from changesin the law that the Legislature has intended to apply to them.” (/d. at p. 66.) Thus, a plea agreementis not breached or revocable just because a change in the law disadvantages oneparty orthe other. (See also Way v. Superior Court ofSan Diego County (1977) 74 Cal.App.3d 165.) The following languagein the dissent from Doe, supra, 57 Cal.4th 64 supports the application ofDoein the instant case: “Today, this court’s majority holds that ‘requiring the parties’ compliance with changesin the law maderetroactive to them does notviolate the terms of the plea agreement... .’ (Maj. opn., ante, at p. 73.) This broad language means that new changesin the law must be followed even though they were not contemplated by the parties when they negotiated the terms of their agreement, which is a form of contract.” (Ud. at p. 74, Kennard, J., dissenting.) Both a defendant, as in Doe, supra, 57 Cal.4th 64, and the People, as here, are bound by a plea agreement despite a later change in the law. There is no meaningful distinction in the context of this case between the “statutory consequences”ofa plea- agreed conviction as in Doe and a negotiated term of a plea agreement. Both involve the consequencesofthe plea agreement and the conviction resulting from it. The Supreme Court reaffirmed the principle that pleaagreements are not subject to changesin the law in Johnson v. DepartmentofJustice (2015) 60 Cal.4th 871, 889, footnote 10 whenit said, “As for [sex] offenders who entered plea agreements, ‘the general rule in California is that a plea agreementis “deemedto incorporate and contemplate not only the existing law but the reserve powerofthe state to amend the law or enact additional laws for the public good andin pursuance ofpublic policy.”” (Doe[, supra,] 57 Cal.4th [at p.] 73.) It therefore follows that ‘requiring the parties’ compliance with changes in the law maderetroactive to them doesnotviolate the terms ofthe plea agreement, nor doesthe failure of a plea agreementto reference the possibility the law might changetranslate into an implied promise the defendantwill be unaffected by a change in the statutory consequencesattending his or her conviction.’ (Id. at pp. 73- 74.)” Other cases have followed Doe, supra, 57 Cal.4th 64. For example, the court in People v. Smith (2014) 227 Cal.App.4th 717, 730, which considered how an amendment to section 1203.4 impacted a plea agreement, said, “We start from the premise that, in the absence ofconstitutional restrictions, the general rule governs here (Doe, supra, 57 Cal.4th at p. 68), and that rule is plea agreements donotinsulate the parties thereto ‘from changes in the law that the Legislaturehas intended to apply to them.’ (Id. at p. 66.) The corollary to that rule also governs here: ‘prosecutorial and judicial silence on the possibility the Legislature might amenda statutory consequence ofa conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amendedlaw.’ (/d. at p. 71.) [9]... [§] In our view,the contract envisioned by [defendants] must be subject to the samerulesas those that govern plea bargains and other contracts, as stated in Doe. In other words, in the absence of constitutionalconstraints, the contract to which a grant ofprobation gives rise must be ““*deemedto incorporate and contemplate not only the existing law but the reserve power of the state to amendthe law or enact additional laws for the public good and in pursuanceofpublic policy.’””’ (Doe, supra, 57 Cal.4th at p. 66, quoting People v. 5 Gipson[, supra,] 117 Cal.App.4th [at p.] 1070.) Weconclude, in the absence of constitutional constraints, a probationer’s entitlement to relief under section 1203.4 is not frozen at the time of the probationary grant but is subject to subsequentlegislative amendmentsto the statute.” The court in T. W. v. Superior Court (2015) 236 Cal.App.4th 646 (7. W.) applied Doe, supra, 57 Cal.4th 46 in a Proposition 47 case to permit a plea bargained disposition to be reduced to a misdemeanor. In that case, the juvenile court had refused to reduce the minor’s adjudication to a misdemeanorbecauseit concluded that Proposition 47 did not apply to plea bargains. The juvenile had admitted the truth ofthe allegation that he received stolen property in violation of section 496. The prosecution dismissed a charge of robbery in violation of section 211 as part of the plea agreement. The court notedthat Proposition 47 applied to convictions obtained both bytrial and plea and concluded that the language and intent of Proposition 47 plainly intendedit to apply to plea-bargained dispositions. The court said, “This outcomeis consistent with the general rule announced by our Supreme Court in Doe[, supra,] 57 Cal.4th 64: ‘[T]he generalrule in California is that the plea agreementwill be “deemedto incorporate and contemplate not only the existing law but the reserve power ofthe state to amend the law orenact additional laws for the public good and in pursuanceofpublic policy. ...’” [Citation.] That the parties enter into a plea agreementthusdoes not havethe effect of insulating them from changes in the law that the Legislature has intended to apply to them.’ (id. at p. 66.)” (T7.W., supra, 236 Cal.App.4th at p. 653, fn. 4.) Also persuasive is the United State Supreme Court case ofFreeman v. United States (2011)__ U.S. __, 131 S.Ct. 2685, in which plurality decision held that federal defendants who enter into plea agreements that specify a particular sentence as a condition for a guilty plea are eligible for a sentence reduction under 18 U.S.C. section 3583(c)(2), which authorizes a district court to modify a sentence when the defendanthas been sentenced to a term of imprisonment based on a sentence rangethat has subsequently been lowered by the Sentencing Commission througha retroactive 6 amendmentto the Sentencing Guidelines. The plurality took the view that sentences imposed pursuant to binding agreementsareeligible for later modification by a change in the law. Justice Sotomayorin a concurring opinion concluded,“In short, application of section 3582(c)(2) to an eligible defendant does not—andwill not—deprivethe Governmentofthe benefit of its bargain.” (Freeman v. United States, supra, 131 S.Ct. at p. 2699.) People v. Collins (1978) 21 Cal.3d 208 (Collins), cited by the real party in interest, - does not govern. That case involved a fully repealed statute defining a crime. The court said, “Whena defendantgainstotalrelieffrom his vulnerability to sentence, thestate is substantially deprived of the benefits for which it agreed to enter the bargain.” (/d. at p. 215, italics added.) In Collins, the defendant was indicted in 1974 on 15 separate felony counts, including six counts of burglary, two counts offorcible rape, three counts of forcible oral copulation, and other charges. Pursuantto a plea bargain, defendant pleaded guilty to one count of non-forcible oral copulation, andall other charges were dismissed. Betweenthe time that he pleaded and wassentenced,the Legislature completely repealed the statute that was the basis of his conviction. Thus, the defendant had been sentenced on a charge that had been repealed. Our Supreme Court agreed that the defendant could not be sentenced on the repealed crime, and reversed the conviction. The court held that the prosecution was deprivedofthe benefit ofits bargain by the relief the court was granting (reversing the sole conviction), and concluded that the dismissed counts could be restored. (/bid.) Unlike in Collins, petitioner here does not “escape from vulnerability to sentence”(ibid.), for he remains convicted and his punishmentis simply reduced. Even if Collins, supra, 21 Cal.3d 208is not distinguishable from theinstant case, it cannot be reconciled with Doe, supra, 57 Cal.4th 64, which did not mention Collins, and thus Collins, to the extent applicable, must be deemed impliedly overruled. (See Everett v. Everett (1976) 57 Cal.App.3d 65, 71 [“If Stevens v. Kelly [(1943) 57 Cal.App.2d 318] ever correctly stated California law, it surely did not survive Berry v. Chaplin [(1946) 74 Cal.App.2d 652], which simply ignored it. The two cases cannot 7 coexist in a jurisdiction which purports to decide disputes on a rational basis”].) As stated in 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, section 541, page 612, “Overruling may also occur in two stages: (1) A prior authority maybefirst overlooked, ignored, or purportedly distinguished on untenable grounds. (2) Then, in a later decision, it may be recognizedthat the early case was ‘impliedly overruled’ bythelater 99one. People v. Collins (1996) 45 Cal.App.4th 849,cited by real party in interestis not applicable. That case involved a plea agreement conditioned on the juvenile’s truthfulness. Thetrial court found that the juvenile gave false testimony and thusset aside the plea bargain andreinstated the original petition. That case had nothing to do with a changein the law,but rather with the failure of the juvenile to comply withhis express obligation to be truthful. To the extent that case and Jn re Blessing (1982) 129 Cal.App.3d 1026, another casecited by real party in interest, support real party in interest’s position, in view ofDoe, supra, 57 Cal.4th 64, they are no longer good law. In re Ricardo C. (2013) 220 Cal.App.4th 688, also was cited by real party in interest. The court held that a juvenile court’s dispositional order was unlawful whenit ordered a minorplaced in a facility other than the Youth Offender Program to which the parties had agreed aspart of a negotiated plea agreement. The court in what appears to be dicta said that the juvenile court should havesetaside the plea andreinstated all the allegations ofthe petitions filed against minor. Thus, this case involving a juvenile proceeding (see Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 [Proposition 47 applies to juvenile proceedings]) concernedthe trial court’s decision— not a change of law. Tothe extent applicable here, it would be inconsistent with existing law as set forth in Doe, supra, 57 Cal.4th 64. In People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, referred to by realparty in interest, the trial court imposed a sentence less than agreed to in the plea bargain. Under those circumstances, the court said the People were entitled to reinstatementofall counts against the defendant. Here, in contrast, the sentence under the plea agreement was consistent with the plea agreement and authorized by law. Thus, People v. Superior Court (Sanchez) is distinguishable. If applying Proposition 47 to plea agreements canresult in vacating the plea and reinstating the original changes, such application would lead to absurd results and would be contrary to the intent of the voters. Plea agreementsresolvea vast majority of criminal cases. (See Recent Cases, 121 Harv. L.Rev. (2008) 2230.) If a reduction of a sentence under Proposition 47 results in the reinstatementofthe original charges and elimination of the plea agreement, the financial and social benefits of Proposition 47 would notbe realized, andthe voters’ intent and expectations would be frustrated. Plea agreements would be subject to nullification depending on later enacted provisions. The District Attorney conceded at oral argumentthat if her position prevailed “quite a few cases” would be affected. Presumably,also affected could be plea bargains in cases covered by Proposition 36 (§ 1170.126), which provides mandatory probation and drug treatmentfor various nonviolent drug possession offenses. Convictions pursuantto plea bargains should not be subject to being set aside by the People years later because of a changein the law Accordingly, I would grant the petition for writ of mandate. MOSK,J. APPENDIX B CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA COURT OF APPEAL — SECONDDIST. FILED SECOND APPELLATE DISTRICT DIVISION FIVE Dec 01, 2015 JOSEPH A. LANE,Clerk MORRIS GLEN HARRIS,JR., No. B264839 J. DUNN Deputy Clerk Petitioner, (Super. Ct. No. BA408368) (Henry J. Hall, Judge) V. ORDER MODIFYING DISSENTING THE SUPERIOR COURT OF LOS OPINION ANGELES COUNTY, Respondent; PEOPLE OF THE STATE OF CALIFORNIA, RealParty in Interest. THE COURT: It is ordered that the dissenting opinion filed herein on November 18, 2015, be modified as follows. Delete the first full sentence on page 9 beginning with the word “Presumably,” and replace it with the following: Also affected may be plea bargainsin cases covered by any statute enacted that would retroactively result in a reduced sentence. Associate Justice Richard M. Mosk DECLARATION OF PROOF OF SERVICE I, the undersigned, declare I am over eighteen years of age, and nota party to the within cause; my business address is 320 West Temple Street, Suite 590, Los Angeles, California 90012; That on December 23, 2015, I served the within Petition for Review (Re: Morris Glen Harris, Jr./2™ Dist. No. B264839/Trial Ct. No. BA408368), on each of the persons named below by depositing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail in the City of Los Angeles, addressed as follows: SECOND DISTRICT COURT OF APPEAL DIVISION 5 RENALD REAGANSTATE BUILDING 300 S. SPRING STREET,2” STREET, NORTH TOWER LOS ANGELES, CA 90013 OFFICE OF THE ATTORNEY GENERAL LANCE WINTERS, ESQ. STATE OF CALIFORNIA 300 SOUTH SPRING STREET,#1702 LOS ANGELES, CA 90013 HONORABLEHENRYJ. HALL, JUDGE LOS ANGELES SUPERIOR COURT DEPARTMENT111 CSF/CIC 210 WEST TEMPLE STREET,11-314 LOS ANGELES, CA 90012 LOS ANGELES SUPERIOR COURT COUNSEL FRED BENNETT,ESQ. 111 NORTH HILL STREET, ROOM 546 LOS ANGELES, CA 90012 I further declare that I served the above referred-to document by hand-delivering a copy thereof addressedto: JACKIE LACEY, DISTRICT ATTORNEY JOHN POMEROY, DDA APPELLATE DIVISION 320 WEST TEMPLE STREET, SUITE 540 LOS ANGELES, CA 90012 I declare under penalty of perjury that the foregoingis true and correct. Executed on December 23, 2015 at Los Angeles, California. - VIVIAN WHITELEY Declarant