P. v. Flynn

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Filed 6/29/16 P. v. Flynn CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWN PATRICK FLYNN,
Defendant and Appellant.
A145160
(Solano County
Super. Ct. No. FCR306559)
A defendant charged with two felony counts enters a guilty or no contest plea to
one of them in exchange for the dismissal of the other. Later, the felony count to which
the defendant pled is reduced to a misdemeanor under Penal Code section 1170.18,1 part
of The Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec.
(Nov. 4, 2014) (“Proposition 47”). Are the People entitled to withdraw from the original
plea agreement and reinstate the dismissed felony count?
This is a question that will be definitively answered by our Supreme Court, which
recently granted review on the same issue in Harris v. Superior Court (2016) 242
Cal.App.4th 244 [195 Cal.Rptr.3d 3], review granted February 24, 2016, S231489. In the
meantime, guided by our colleagues’ decision in T.W. v. Superior Court (2015) 236
Cal.App.4th 646 (T.W.), we conclude the People remain bound by the original plea
agreement, and reverse the judgment imposed on the reinstated felony count in this case.
We reject appellant’s claim he is entitled to apply excess custody credits to the parole
period, if any, under section 1170.18, subdivision (d).
1 Further statutory references are to the Penal Code.

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BACKGROUND
On March 18, 2014, appellant Shawn Patrick Flynn entered a Macy’s department
store, placed some shirts worth $622.50 into a bag, and left the store. He returned a few
hours later with a cohort, who helped him steal $1,018 worth of merchandise.
On April 1, 2014, the Solano County District Attorney filed a complaint charging
appellant with two counts of felony second degree commercial burglary. (§ 459.) On
June 6, 2014, appellant pled guilty to Count 1 in exchange for the dismissal of Count 2
and an initial grant of felony probation for a three-year period. (§§ 459; 1203.1, subd.
(a).) The plea agreement also allowed appellant’s probation to be transferred to
Sacramento County, where he resided, pursuant to section 1203.9. At the sentencing
hearing held July 23, 2014, appellant was placed on felony probation for a three-year
period with credit for one day in custody.
On November 4, 2014, the voters enacted Proposition 47, which “reclassified
certain drug-and theft-related offenses that were felonies or ‘wobblers’ as misdemeanors,
and provided a resentencing process for individuals who would have been entitled to
lesser punishment if their offenses had been committed after its enactment.” (People v.
Rouse (2016) 245 Cal.App.4th 292, 294.) As relevant here, newly-enacted section
1170.18, subdivision (a), allows 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 . . . had this act been in effect at the time of the offense” to apply for
resentencing as if the crime were a misdemeanor.
On January 30, 2015, the District Attorney filed a request to revoke appellant’s
probation, based on a new robbery conviction in Sacramento County Superior Court case
No. 14F06400. On February 9, 2015, appellant filed a petition for resentencing under
Proposition 47, asking the court to reduce his conviction for commercial burglary to a
misdemeanor. The People opposed the petition, arguing it would deprive them of the
benefit of the plea agreement.
The trial court granted appellant’s Proposition 47 petition as to the Count 1
burglary to which he had pled and reduced that crime to a misdemeanor, but it allowed

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the prosecution to withdraw from the plea agreement and reinstated the previously-
dismissed Count 2. A preliminary hearing was held and appellant was held to answer on
Count 1 as a misdemeanor and Count 2 as a felony. (See Griffith v. Superior Court
(2011) 196 Cal.App.4th 943, 949–950 [recognizing rule that misdemeanor counts joined
with felony counts in information must be supported by probable cause].)
On April 23, 2015, appellant and the District Attorney entered into a new
negotiated plea agreement under which appellant pled guilty to the felony burglary
charge in Count 2, stipulated the value of the property taken was more than $950, and
agreed to an eight-month prison sentence (one-third of the middle term) consecutive to
the sentence he was serving on his robbery conviction in the Sacramento County case.
As part of the plea agreement, appellant specifically reserved the right to challenge on
appeal the reinstatement of the original charges. The court sentenced appellant to eight
months in prison consecutive to the prison term he was already serving for the robbery in
the Sacramento County case.
Appellant filed a timely notice of appeal and requested a certificate of probable
cause seeking to challenge the reinstatement of the felony charge in Count 2. (§ 1237.5.)
The trial court issued the certificate of probable cause.
DISCUSSION
A. Proposition 47 and its Effect on the Negotiated Plea
“Proposition 47, which is codified in section 1170.18, reduced the penalties for a
number of offenses. Among those crimes are certain second degree burglaries where the
defendant enters a commercial establishment with the intent to steal. Such offense is now
characterized as shoplifting as defined in new section 459.5. Shoplifting is now a
misdemeanor unless the prosecution proves the value of the items stolen exceeds $950.
[Citations.]” (People v. Sherow (2015) 239 Cal.App.4th 875, 879; see People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 448–449 [recognizing Proposition 47’s applicability
to second degree burglary conviction but concluding defendant did not carry burden of
establishing the property stolen was worth less than $950].) The property underlying the

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commercial burglary charge in Count 1 of appellant’s case was valued at $622.50,
bringing it within the ambit of Proposition 47.
Section 1170.18, subdivision (a), allows a petition for recall and resentencing to be
filed by a person “ ‘currently serving a sentence’ ” for a qualifying felony conviction. A
defendant who is on probation is “serving a sentence” for purposes of the statute.
(People v. Davis (2016) 246 Cal.App.4th 127, 132.) “If the petitioner satisfies the criteria
in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner
resentenced to a misdemeanor . . . unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b).) The People do not contend appellant posed an unreasonable risk
of danger to public safety and the court, in granting the Proposition 47 petition, implicitly
found he did not.
The petition for recall and resentencing may be filed for any qualifying conviction
“whether by trial or plea.” (§ 1170.18, subd. (a), Italics added.) In T.W., supra, 236
Cal.App.4th 646, Division One of this Court concluded this language plainly applied to a
minor who had admitted a qualifying charge of receiving stolen property, even though a
non-qualifying robbery count had been dismissed in accordance with a plea agreement.
(Id., at pp. 649, 651–653.) This result was consistent with both the plain language of the
statute and the voters’ intent to “ ‘ “[s]top[] wasting prison space on petty crimes and
focus[] law enforcement resources on violent and serious crime by changing low-level
nonviolent crimes such as simple drug possession and petty theft from felonies to
misdemeanors.” ’ ” (Id. at p. 652, quoting Voter Information Guide, Gen Elec. (Nov. 4,
2014) argument in favor of Prop. 47, at p. 38.) Thus, it was error for the trial court to
deny the defendant’s resentencing petition under Proposition 47 solely because the
conviction had been obtained as part of a plea bargain. (Id. at p. 653.)
The trial court in T.W. was faced with an order denying a Proposition 47 petition,
whereas the court in this case granted appellant’s petition but reinstated the felony count
that had been dismissed as part of the original plea agreement. The People argue the trial
court’s order reinstating the dismissed count was appropriate because otherwise, they

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would be deprived of the benefit of the underlying plea agreement. We disagree. As
noted in T.W., supra, 236 Cal.App.4th at page 653, footnote 4, the application of
Proposition 47’s resentencing provisions to an admission or conviction that had been the
subject of a plea bargain was “consistent with the general rule announced by our Supreme
Court in Doe v. Harris (2013) 57 Cal.4th 64 [(Doe)]: ‘[T]he 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. . . .’ ” [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.’ (Id. at p. 66 [].)”
In Doe, the Supreme Court answered a question posed by the Ninth Circuit Court
of Appeals: “ ‘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 changes in the law?’ ”
(Doe, supra, 57 Cal.4th at p. 66; see Cal. Rules of Court, rule 8.548 [allowing state
Supreme Court to decide question of California law in response to a request by a court
from another jurisdiction].) The defendant in Doe had pleaded guilty to a registerable sex
offense as part of a plea bargain at a time when sex offender registration records were
private. When the law subsequently changed to make those records subject to public
disclosure, the defendant brought a federal lawsuit claiming his plea bargain contained an
implied promise that the privacy protections in place at the time of his plea would remain
in effect. (Id. at pp. 67–68.)
Responding to the Ninth Circuit’s query, our Supreme Court stated, “the rule in
California is that a plea agreement’s reference to a statutory consequence attending a
conviction, even when coupled with prosecutorial and judicial silence on the possibility
the Legislature might amend the statute, does not give rise to an implied promise that the
defendant, by pleading guilty or nolo contendere, will be unaffected by a change in the
law.” (Doe, supra, 57 Cal.4th at p. 73.) However, “it is not impossible the parties to a
particular plea bargain might affirmatively agree or implicitly understand the

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consequences of a plea will remain fixed despite amendments to the relevant law.
[Citations.] [¶] Whether such an understanding exists presents factual issues that
generally require an analysis of the representations made and other circumstances
specific to the individual case.” (Id. at p. 71.)
In this case, the parties did not explicitly agree the plea would be unaffected by
future law, and none of the terms of the plea agreement support an implicit understanding
to that effect. In ruling on appellant’s Proposition 47 petition, the trial court noted the
purpose of the initial plea agreement had been to secure a felony conviction but the same
could be said of any case in which the defendant entered a plea to a felony that
subsequently became eligible for treatment under Proposition 47. The court also noted
the felony conviction had been obtained so appellant’s probation could be transferred to
Sacramento County for supervision under section 1203.9, but that provision appears on
its face to allow the transfer of a misdemeanor probationer as well as a felony
probationer. Appellant was placed on probation for three years, a term that was
authorized for both felony and misdemeanor probation. (§§ 1203.1, subd. (a); 1203a.)
Nothing in the terms of the plea agreement suggests the parties necessarily understood or
agreed the crime would remain a felony despite future ameliorative changes in the law.
Absent any specific term in the plea agreement that would remove the case from
the general rule set forth in Doe, we agree with the analysis in T.W. and conclude
appellant was entitled to seek relief under Proposition 47 without triggering a
reinstatement of dismissed charges under the plea agreement. The drafters of Proposition
47 obviously understood criminal convictions may result from a contested jury trial or
from a negotiated plea, and they chose to make no distinction between the two for the
purposes of eligibility for resentencing. Surely they were aware that convictions suffered
by plea often involve negotiation, compromise, and the dismissal of other, more serious
charges. Yet section 1170.18 as drafted does not provide any procedure for allowing the
People to withdraw from a plea agreement or reinstate charges when a defendant is
resentenced. To allow the People to reinstate charges as a remedy for a “breach of the
bargain” under these circumstances would eviscerate section 1170.18, as the only

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defendants who could take advantage of the statute would be those as to whom no other
more serious charges had been filed or dismissed. The trial court’s effort in this case to
craft a remedy to address the People’s grievance, while not unreasonable as a matter of
equity, improperly alters the statutory scheme. It also runs afoul of section 1170.18,
subdivision (e), which provides, “Under no circumstances may resentencing under this
section result in the imposition of a term longer than the original sentence.”
People v. Collins (1978) 21 Cal.3d 208 (Collins), cited by the People, is not
controlling. In Collins, a defendant charged with multiple felony counts pled guilty to a
single count of nonforcible oral copulation under the then-effective version of section
288a in exchange for a dismissal of the remaining charges. (Collins, supra, 21 Cal.3d
208 at p. 211.) Prior to sentencing, the statute was repealed. (Ibid.) The Supreme Court
held the defendant could not be sentenced on the repealed statute, but recognized that if
the sole count of conviction were reversed outright, the prosecution would be deprived of
the benefit of its plea bargain. (Id. at pp. 214–215.) The remedy, therefore, was to
dismiss the count to which the defendant had pled but allow the reinstatement of the
dismissed counts on remand, subject to the caveat that the defendant could not, upon the
disposition of the charges, be given a greater sentence than he could have received under
the plea bargain. (Id. pp. 216–217.)
Unlike the situation presented by Collins, a defendant who secures resentencing
under Proposition 47 does not completely escape punishment. Moreover, Collins did not
involve the interpretation of a broadly applicable statute expressly allowing a certain
class of defendants to seek a reduction in punishment.
The People also rely on In re Blessing (1982) 129 Cal.App.3d 1026, in which the
defendant entered into a plea bargain and later sought to reduce his agreed-upon sentence
based on subsequent case law barring multiple firearm enhancements under the
circumstances of his case. The Court of Appeal concluded it could not give effect to the
enhancements, but instead of striking them outright and reducing the sentence by four
years, it permitted the People to file a motion in the trial court to withdraw from the plea
agreement. (Id. at pp. 1031–1032.) The change in law that affected the defendant’s

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sentence in Blessing was the result of an intervening court decision, and did not involve a
determination of public policy by the electorate as did Proposition 47.
Other cases cited by the People similarly do not involve the effect of a
subsequently enacted statute which ameliorated the punishment of certain offenders and
explicitly extended that relief to defendants whose convictions followed a plea rather than
a trial. (People v. Enlow (1998) 64 Cal.App.4th 850, 853 [declining to allow challenge to
stipulated sentence without certificate of probable cause under § 1237.5; even if
certificate was unnecessary, remedy would be withdrawal of plea, not reduction of
sentence]; In re Ricardo C. (2013) 220 Cal.App.4th 688, 691–694, 699 [juvenile court
could not impose less restrictive placement than that agreed to by People as part of
negotiated disposition; court was required to set aside the plea and reinstate the
allegations of the petition]; In re Travis J. (2013) 222 Cal.App.4th 187, 192–193 [noting
that if commitment to the Division of Juvenile Facilities was invalid because juvenile
court did not consider less restrictive alternatives, remedy would be to set aside the
negotiated disposition requiring that penalty and reinstate the charges].) These
authorities do not support the People’s argument they are entitled to withdraw from the
plea agreement and reinstate the original charges.
B. Credits Against Parole Period
A defendant who is resentenced to a misdemeanor under section 1170.18,
subdivision (a), “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 of its resentencing order, releases the person from parole. Such person is subject to
Section 3000.08 parole supervision by the Department of Corrections and Rehabilitation
and the jurisdiction of the court in the county in which the parolee is released or resides,
or in which an alleged violation of supervision has occurred, for the purpose of hearing
petitions to revoke parole and impose a term of custody.” (§ 1170.18, subd. (d).)
Appellant argues the trial court should apply any excess custody credits to reduce this
period of parole, consistent with In re Sosa (1980) 102 Cal.App.3d 1002, 1005–1006
[interpreting § 2900.5 to require excess custody credits to be applied to the parole period

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of a defendant sentenced under the determinate sentencing law]. This claim was recently
rejected in People v. Morales (June 16, 2016, S228030) ____ Cal.4th _____ [2016 WL
3346571], in which our Supreme Court held that excess custody credits could not be used
to reduce the Proposition 47 parole period.
DISPOSITION
The judgment is reversed and the case is remanded. On remand, the trial court is
directed to set aside appellant’s April 23, 2015, negotiated plea to felony second degree
commercial burglary under Count 2, and to reinstate appellant’s conviction of second
degree commercial burglary under Count 1, which has been reduced to a misdemeanor
under the provisions of Proposition 47. The eight-month prison sentence is vacated. The
court shall conduct further sentencing proceedings on the misdemeanor count.

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______________________
NEEDHAM, J.
We concur.
SIMONS, ACTING P.J.
BRUINIERS, J.
(A145160)

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