Monterey County Superior Court No.: SS131492A The Honorable Pamela L. Butler Judge
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under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Catherine A. Rivlin, Deputy Attorney General, for Plaintiff and Respondent.
On November 4, 2014, the voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) In this case, and in the companion case of People v. Lynall (2015) 233 Cal.App.4th 1112 [___ Cal.Rptr.3d ___], we review questions regarding the effect of Proposition 47 on appellate jurisdiction. Here we determine which court-the Court of Appeal or the appellate division of the superior court-has jurisdiction over an appeal from a case in which the defendant was originally convicted of a felony, but the offense was later (1) designated a misdemeanor under Proposition 47, or (2) the defendant was resentenced as a misdemeanant under Proposition 47. As part of our analysis, we review the effect of language in Penal Code section 1170.18, subdivision (k)-which was enacted as part of Proposition 47-that “[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) [of section 1170.18] shall be considered a misdemeanor for all purposes.
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We identified the jurisdictional question on our own motion and asked the parties to address the question in letter briefs limited to that issue. (In re Perris City News (2002) 96 Cal.App.4th 1194, 1197 [118 Cal.Rptr.2d 38] (Perris) [“Whenever there is doubt as to whether we have jurisdiction to hear an appeal, we must raise that issue on our own initiative”].) In their letter briefs, both parties argue that this is a felony case for the purpose of appellate jurisdiction and that this court, as opposed to the appellate division of the superior court, has jurisdiction over this appeal. We agree with the parties and hold that nothing in Proposition 47 alters existing rules regarding appellate jurisdiction. Accordingly, if a defendant is charged with at least one felony in an information, an indictment, or in a complaint that has been certified to the superior court under Penal Code section 859a, as is the case here, it is a felony case and appellate jurisdiction properly lies with this court. (Further undesignated statutory references are to the Penal Code.)
Since we requested briefing on appellate jurisdiction before the record was filed, we do not have any information regarding the facts that led to defendant’s conviction.
The superior court clerk had provided us with copies of minute orders for hearings on June 25, 2014, and December 4, 2014. Defendant’s appellate counsel attached copies of minute orders for a hearing on October 16, 2014,
and the December 4, 2014 hearing to his letter brief. In the absence of a certified appellate record, the Attorney General “join[ed] in appellant’s implied request that the Court take judicial notice of the. . . minute orders provided as exhibits by appellant.” We grant the parties’ requests for judicial notice. On our own motion, we shall also take judicial notice of the June 25, 2014 minute order provided by the superior court clerk. The minute orders reveal the following procedural history.
Defendant was charged by information with two felony counts of possessing a controlled substance for sale under two different provisions of the Health and Safety Code (Health & Saf. Code, §§ 11351 (count 1), 11378 (count 2)).
On June 25, 2014, as part of a negotiated disposition, the prosecution amended the information to add a felony count of possession of a controlled substance (Health & Saf. Code, § 11350) as count 3. Defendant then pleaded no contest to count 3 on the conditions that he receive felony probation and that counts 1 and 2 be dismissed. Defendant was referred to the probation department for a presentence report. A sentencing hearing was scheduled for August 1, 2014, with a notation that counts 1 and 2 were to be dismissed at sentencing.
The documents before us do not include a minute order for the sentencing hearing on August 1, 2014. But we may infer, from the record we do have, that defendant was granted probation with various conditions, but without imposition of sentence, and that counts 1 and 2 were dismissed.
On September 16, 2014, the probation officer filed a “Petition for Revocation/Modification of Probation, ” alleging violations of three conditions of defendant’s probation. On October 16, 2014, defendant-who was in custody-admitted two of the three alleged violations. The allegations regarding the third violation were dismissed and the court referred defendant to the probation department for a supplemental report.
On December 4, 2014, the court imposed a 16-month, lower-term felony sentence on count 3 (the possession of a controlled substance charge) and ordered defendant to serve his sentence in the county jail under section 1170, subdivision (h). The court also imposed a previously ...