Filed 10/26/17 P. v. Keagy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment and order of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.

Melissa Beloian Sahatjian, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On October 2, 2013, appellant Meghan Elizabeth Keagy pled guilty to one count of violating Penal Code[1] section 459, second degree commercial burglary, and one count of violating section 1320, subdivision (b), failure to appear. At the time of her plea, both offenses were felonies. On February 23, 2016, the superior court granted Keagy’s petition to reduce the burglary conviction to a misdemeanor, but denied her oral motion to reduce the section 1320 offense to a misdemeanor. Keagy appeals the denial of her motion to reduce the section 1320 offense to a misdemeanor. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Keagy was charged with a felony violation of section 459 in case number CRF41052. In case number CRF41428, she was charged with a felony violation of section 1320, failure to appear, for failing to appear in the burglary case. On October 2, 2013, Keagy pled guilty to both felony counts. The trial court placed her on five years’ probation, subject to various terms and conditions, including serving four months in jail on the burglary charge and a consecutive three months in jail for the failure to appear conviction.

Keagy appeared before the superior court on February 23, 2016, on her fourth probation violation. The probation report indicates that Keagy failed to report as instructed for drug testing on multiple occasions; was discharged from a substance abuse program for failure to participate; failed to enroll in the work release program; and failed to provide a valid current address to probation. The probation report also notes that Keagy had “three felony grants of probation from the state of Oregon from which she absconded and never returned.” The probation department assessed her risk of reoffending as “high” and recommended probation be revoked and not reinstated.

At the hearing, the trial court noted that it had reviewed the current as well as the original probation report. Keagy had numerous prior convictions and her performance on probation was unsatisfactory. The trial court noted Keagy had violated probation four times and had been given opportunities to participate in required programs, but failed to comply with them. The trial court opined that it did not have confidence Keagy would successfully complete a grant of probation.

At this point, defense counsel asked to make an oral motion pursuant to Proposition 47[2] to reduce the section 1320 conviction to a misdemeanor in order to “reserve that issue for appeal.” The People objected to the motion being granted on the grounds section 1320 was not an offense that fell within Proposition 47.

The trial court allowed the oral motion to be made, but denied the motion on the grounds section 1320 is not one of the offenses listed in Proposition 47. The trial court reasoned that a section 1320 offense is “failing to appear when you are charged with a felony regardless of what the outcome of that felony is. It is very different from … a[n] enhancement that requires a conviction on the underlying felony.”

The trial court proceeded to revoke probation on the section 1320 offense and sentence Keagy to the aggravated term of three years for the offense. The aggravated term was selected because of Keagy’s numerous prior offenses, she was on probation when she committed the offense, and her performance on probation was unsatisfactory. Keagy was committed to local custody for the term of three years. For the misdemeanor burglary charge, Keagy was sentenced to a term of four months in the county jail, to be served concurrently. After completion of two years in custody, Keagy was to be released on mandatory supervision.

Keagy filed a notice of appeal challenging the denial of her motion to reduce the section 1320 offense to a misdemeanor.

DISCUSSION

Keagy’s sole contention on appeal is that the trial court erred as a matter of law in not reducing her section 1320 offense to a misdemeanor after the burglary conviction was reduced to a misdemeanor. This issue is currently pending in the California Supreme Court. (People v. Buycks (2015) 241 Cal.App.4th 519, review granted Jan. 20, 2016, S231765 [§ 12022.1 bail enhancement when underlying charge reduced to a misdemeanor]; People v. Eandi (2015) 239 Cal.App.4th 801, review granted Nov. 18, 2015, S229305 [application of § 1320 when underlying charge subsequently reduced to a misdemeanor]; People v. Perez (2015) 239 Cal.App.4th 24, review granted Nov. 18, 2015, S229046 [application of § 1320 when underlying charge subsequently reduced to a misdemeanor].)

When a person willfully fails to appear (FTA) after an own recognizance release while a felony charge is pending, a subsequently charged FTA is a felony, but if the underlying charge is a misdemeanor, the FTA is a misdemeanor. (§ 1320, subds. (a) & (b).) Section 1320 is a crime of moral turpitude that is complete when a defendant willfully evades court process. (People v. Maestas (2005) 132 Cal.App.4th 1552, 1556-1557; § 1320, subds. (a) & (b).)

The ultimate outcome of the underlying charge is irrelevant to an FTA charge because section 1320 applies to persons convicted or charged with crimes. (See People v. Walker (2002) 29 Cal.4th 577, 583.) The gravamen of the substantive offense set forth in section 1320.5 is the act of “jumping bail and consequent evasion of the court’s process.” (Id. at p. 585.) As the Walker court noted, the legislative history for section 1320.5 observed that a defendant who failed to appear on an underlying felony charge would be subject to conviction under section 1320.5 even if the defendant were acquitted on the underlying charge. (Id. at p. 583.) We see no reason the rationale and holding of Walker addressing section 1320.5, willful evasion of court process while on bail, is not equally applicable to convictions under section 1320, willful evasion of court process while released on own recognizance.

Furthermore, section 1320 is not among the offenses explicitly included in the text of Proposition 47. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) pp. 35-36, 71-73.) Section 1170.18 does not include section 1320 offenses among the enumerated offenses that are subject to reduction to a misdemeanor or recall and resentencing. (§ 1170.18, subd. (a).)

We have previously addressed whether Proposition 47 applies to offenses that are not enumerated in section 1170.18. In People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), review granted November 30, 2016, S237975,[3] we held that Vehicle Code section 10851 is not affected by the changes enacted through Proposition 47, and no equal protection violation arises from the different potential punishments for, or the failure to grant retroactive sentencing relief to, those convicted under Vehicle Code section 10851. (Sauceda, at pp. 644-650.)

The Fourth District in People v. Varner (2016) 3 Cal.App.5th 360, 366-367 (Varner), review granted November 22, 2016, S237679, held sections 490.2 and 1170.18, enacted by Proposition 47, did not affect the eligibility of defendants convicted under section 496d for resentencing because the newly enacted sentencing statutes did not include section 496d even though they expressly included section 496. Even if a defendant’s acquisition of a vehicle in violation of section 496d was of property valued at less than $950, he or she is not entitled to resentencing pursuant to section 1170.18. (Varner, 3 Cal.App.4th at p. 370, fn. 4.) The Legislature has the discretion to proceed in an incremental and uneven manner without engaging in arbitrary or unlawful discrimination. (Id. at pp. 369-370.)

We see no reason to depart from the rationale of Walker when the principle is the same: A felony conviction under section 1320 is proper even if the underlying felony charge is dismissed, the defendant is acquitted, or as in Keagy’s case, the felony is subsequently reduced to a misdemeanor. Our position is bolstered by the rationale of Sauceda and Varner in that section 1320 is not enumerated in section 1170.18, subdivision (a), and thus is not subject to reduction to a misdemeanor.

DISPOSITION

The judgment and order are affirmed.