P. v. Sulitswalley

Filed 10/19/16 P. v. Sulitswalley CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
DYLAN ABELARDO SULITSWALLEY,
Defendant and Appellant.
2d Crim. No. B271266
(Super. Ct. No. 1256756)
(Santa Barbara County)
Dylan Abelardo Sulitswalley appeals an order denying his Proposition 47
motion to reduce a 2008 conviction for failure to appear (FTA; Pen. Code, § 1320, subd.
(b))1
to a misdemeanor and vacate a two-year out-on-bail enhancement (§ 12022.1, subd.
(b)). We vacate the out-on-bail enhancement because appellant’s conviction on the
primary offense, possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a)), was reduced to a misdemeanor pursuant to Proposition 47. (§§ 1170.18, subd.
(d); 12022.1, subd. (g).) An out-on-bail enhancement may not be imposed unless the
defendant is convicted of felony primary and secondary offenses. (§ 12022.1, subd. (e) &
1
All statutory references are to the Penal Code unless otherwise stated. Section
12022.1 subdivision (b) provides: “Any person arrested for a secondary offense that was
alleged to have been committed while that person was released from custody on a
primary offense shall be subject to a penalty enhancement of an additional two years,
which shall be served consecutive to any other term imposed by the court.”

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2
(g); People v. Walker (2002) 29 Cal.4th 577, 586.) The matter is remanded for
resentencing.
Procedural History
In July 2010, appellant was sentenced to 11 years eight months state prison
in three cases that were consolidated for sentencing:
In case no. 1332588, appellant was convicted by plea of furnishing a
controlled substance (Health & Saf. Code, § 11352, subd. (a)) with a prior strike
conviction (§§ 667, subds. (b) -(i); 1170.12). Appellant was sentenced to eight years
(four year midterm, doubled based on the prior strike).
In case no. 1256756, appellant was convicted by plea of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)), and failure to appear
(§ 1320, subd. (b)) with an out-on-bail enhancement (§ 12022.1, subd. (b)). Appellant
was sentenced to a consecutive two year eight month term (eight months for possession
of a controlled substance plus two years on the out-on-bail enhancement), and a
concurrent two year term for FTA.
In case no. 1214367, appellant was convicted by plea of assault with a
deadly weapon (§ 245, subd. (a)(1)) and sentenced to a consecutive one year term (one-
third the three year midterm).
On November 4, 2014, Proposition 47 was enacted by the voters to reduce
certain drug and theft-related offenses from straight felonies and wobblers to
misdemeanors, unless the offenses were committed by certain ineligible defendants.
(People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 added section
1170.18 which governs the application of these changes to defendants sentenced before
the enactment of Proposition 47. Section 1170.18, subdivision (a) provides: “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 under the act that added this
section (‘this act’) had this act been in effect at the time of the offense may petition for a
recall of [the] sentence.”

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On February 26, 2016, appellant filed a motion for resentencing in case no.
1256756. (§ 1170.18, subd. (a).) The prosecution agreed that the conviction on count 1
for possession of a controlled substance should be reduced to a misdemeanor. Appellant
argued that the count 2 conviction (FTA) should be reduced to a misdemeanor (§ 1320,
subd. (a)) and the out-on-bail enhancement vacated because the primary offense (count 1)
is deemed to be a misdemeanor “for all purposes” pursuant to section 1170.18,
subdivision (k).2
The trial court reduced the drug conviction on count 1 to a
misdemeanor and sentenced appellant to 180 days jail with 180 days credit for time
served. The court found that “Count 2 (Penal Code § 1320(b)) is a stand-alone crime,
and at the time of commission, [appellant] was charged with a pending felony (Count 1).
Therefore, reduction of Count 1 to a misdemeanor does not result in the reduction of
Count 2 to a misdemeanor.” The court denied the request to vacate the out-on-bail
enhancement which “remains tied to Count 2.” Appellant’s total aggregate sentence was
reduced by eight months to 11 years state prison.
FTA Conviction
Appellant argues that reduction of the count 1 conviction to a misdemeanor
requires that the FTA conviction be reduced to a misdemeanor pursuant to section 1320,
subdivision (a) which governs punishment for failure to appear on a misdemeanor charge
or conviction. The trial court correctly found that count 2 is “a stand-alone crime” and
could not be reduced to a misdemeanor. Section 1320, subdivision (b) provides that
“[e]very person who is charged with or convicted of the commission of a felony who is
2
Both issues -- how Proposition 47 resentencing retroactively affects a felony
FTA conviction and an out-on-bail enhancement -- are currently pending before the
California Supreme Court. (See People v. Eandi (2015) 239 Cal.App.4th 801, review
granted Nov. 18, 2015, S229305 [Proposition 47 reduction of primary offense (drug
possession) does not reduce a felony conviction for FTA]; People v. Perez (2015) 239
Cal.App.4th 24, review granted Nov. 18, 2015, S229046 [same]; People v. Buycks (2015)
241 Cal.App.4th 519, review granted January 20, 2016, S231765 [discussing interplay
between Proposition 47 and section 12022.1 out-on-bail enhancement].)

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4
released from custody on his or her own recognizance and who in order to evade the
process of the court willfully fails to appear as required, is guilty of a felony.” (Italics
added.) Failure to appear is a stand-alone offense, similar to the “bail jumping” statute
(§ 1320.5), and is grounded on the defendant’s breach of a contractual agreement with the
People. (People v. Jenkins (1983) 146 Cal.App.3d 22, 28.)
A felony conviction for failure to appear remains a felony even when the
underlying conviction (i.e., possession of a controlled substance) is reduced to a
misdemeanor. (See People v. Walker, supra, 29 Cal.4th at p. 583 (Walker) [discussing
section 1320.5 willful failure to appear while on bail].) Regardless of whether the felony
conviction on count 1 is downgraded pursuant to Proposition 47, it does not affect the
applicability of section 1320. (People v. Abdallah (2016) 246 Cal.App.4th 736, 748.)
“The language and history of section 1320[] . . . reflect the Legislature’s view that
fulfillment of this purpose requires punishment whether or not the defendant ultimately is
convicted of the charge for which he or she was out on bail when failing to appear in
court as ordered. [Citation.]” (Walker, supra, 29 Cal.4th at p. 583.)
When appellant breached his promise to appear in 2008, he was facing a
felony charge and later pled guilty to that charge. Reduction of the conviction to a
misdemeanor in 2016 did not collaterally affect the FTA conviction. Appellant argues
that section 1170.18, subdivision (k) provides that reduction of a felony conviction to a
misdemeanor “shall be considered a misdemeanor for all purposes.” But nothing in the
language of the statute or the Proposition 47 ballot materials indicates that section
1170.18 was intended to have retroactive collateral consequences on non-Proposition 47
offenses. (See People v. Rivera, supra, 233 Cal.App.4th at p. 1100 [§ 1170.18,
subdivision (k) not retroactive].) “[A] felony offense redesignated as a misdemeanor
under Proposition 47 retains its character as a felony prior to its redesignation, and is
treated as a misdemeanor only after the time of redesignation.” (In re C.H. (2016) 2
Cal.App.5th 1139, 1147.)
Proposition 47 allows resentencing only if the defendant was convicted of
specific drug or theft offenses enumerated in section 1170.18, subdivision (a). Section

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1320 is not among those offenses expressly included in the text of Proposition 47 or
section 1170.18. “Where the words of the statute are clear, we may not add to or alter
them to accomplish a purpose that does not appear on the face of the statute or from its
legislative history. [Citation.]” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
Out-On-Bail Enhancement
Appellant argues that reduction of the count 1 conviction to a misdemeanor
requires that the out-on-bail enhancement be vacated. We agree. (§ 12022.1, subd. (g).)
The out-on-bail enhancement penalizes recidivist conduct but may only be imposed
where the defendant is ultimately convicted on both the primary and secondary felony
offenses. (People v. McClanahan (1992) 3 Cal.4th 860, 869; Walker, supra, 29 Cal.4th
at pp. 583-584; see also People v. Reyes, In re Reyes (Oct. 6, 2016) __ Cal.App.5th __
[2016 Cal.App. LEXIS 845].) If, at time of resentencing, the conviction on the primary
offense is reduced to a misdemeanor, it eliminates the enhancement. (Couzens et al.,
Sentencing California Crimes (Rutter Group July 2016) § 25:28, p. 25-108.) “Although
section 12022.1, strictly speaking, does not appear to make the defendant’s conviction of
the primary offense an element of the enhancement in order to prove the enhancement,
the statute makes crystal clear that imposition of the enhancement requires conviction of
the primary offense at some stage of the proceedings. [Citations.]” (Walker, supra, 29
Cal.4th at p. 586.) Principles of stare decisis require that we follow Walker. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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Disposition
We vacate the out-on-bail enhancement and remand for resentencing to
permit the trial court to recalculate the component parts of the aggregate sentence.
(People v. Navarro (2007) 40 Cal.4th 668, 681.)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.

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Jean M. Dandona, Judge
Superior Court County of Santa Barbara
______________________________
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General,
for Plaintiff and Respondent.

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