Opinion
No. B257808.
11-03-2015
LUCENT TECHNOLOGIES, INC. et al., Plaintiffs, Cross-defendants, and Respondents, v. STATE BOARD OF EQUALIZATION, Defendant, Cross-complainant, and Appellant.
[Modification of opinion (241 Cal.App.4th 519; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
Bigelow, P. J., Flier, J., and Grimes, J.
The opinion herein, filed on October 20, 2015, is modified as follows and the petition for rehearing is DENIED:
1. On page 7, line 5 [241 Cal.App.4th 526, advance report, 1st par., line 9], insert "(Italics added.)" before the sentence that begins "In finding."
2. On page 7 [241 Cal.App.4th 526, advance report, fn. 2], delete the text in footnote 2 and replace it with the following text:
In a petition for rehearing, respondent contends we have misinterpreted both Rivera and Park to conclude the phrase "misdemeanor for all purposes" in section 1170.18, subdivision (k) applies "retroactively." But Rivera addressed a different issue, holding that the relevant statutes and California Rules of Court created Court of Appeal jurisdiction over an appeal when the defendant was originally charged with a felony that was later reduced to a misdemeanor pursuant to Proposition 47 and the defendant was resentenced to a misdemeanor. (Rivera, supra, 233 Cal.App.4th at pp. 1093, 1095-1096, citing § 691, subd. (f) & Cal. Rules of Court, rule 8.304.) Here, section 12022.1 contains no similar language, and, as we will discuss, it applies only when the defendant has been convicted of a primary felony offense.
Further, citing People v. Feyrer (2010) 48 Cal.4th 426 [106 Cal.Rptr.3d 518, 226 P.3d 998] (Feyrer) and People v. Banks (1959) 53 Cal.2d 370 [1 Cal.Rptr. 669, 348 P.2d 102] (Banks), the court in Rivera opined that, because section 1170.18, subdivision (k) contains similar language to section 17, subdivision (b) and that provision has been interpreted not to apply retroactively, a felony case is not converted to a misdemeanor case for the purpose of appellate jurisdiction by later reduction of the offense to a misdemeanor pursuant to Proposition 47. (Rivera, supra, 233 Cal.App.4th at pp. 1094-1097.) As we have explained, our case does not involve the retroactive application of section
1170.18, subdivision (k), given the trial court fully resentenced appellant in his second case, requiring it to evaluate the circumstances as they existed at that point in time. As noted in Park, in neither Feyrer and Banks "did the court exercise its discretion pursuant to section 17[, subdivision (b)] to reduce a wobbler to a misdemeanor," as the trial court did here prior to appellant's resentencing in his second case. (Park, supra, 56 Cal.4th at p. 802.)
We recognize in Park the defendant's first wobbler offense had been reduced to a misdemeanor before he committed his second offense, whereas here appellant had committed and been convicted of his second offense before he obtained resentencing in both his first and second cases. (Park, supra, 56 Cal.4th at p. 802.) In that circumstance, Park noted, "There is no dispute that, under the rule in [Feyrer and Banks], defendant would be subject to the section 667[, subdivision (a)] enhancement had he committed and been convicted of the present crimes before the court reduced the earlier offense to a misdemeanor." (Ibid.) Had Park involved a full resentencing in the second case as here, however, we think the court would agree that the trial court was required to apply both section 1170.18, subdivision (k) and section 12022.1 to the facts as they existed at that time, just as a court must apply section 17, subdivision (b) to the facts as they exist when the defendant commits and is sentenced to a new offense after his prior wobbler conviction is reduced to a misdemeanor. Of course, this case does not involve a collateral challenge to an on-bail enhancement not otherwise part of a resentencing in a second case. That could raise different issues and suggest a different conclusion, points we do not address here.
There is no change in the judgment.
Respondent's petition for rehearing is denied.