California Court of Appeals, Fourth District, Third Division
Motion for limited remand of case No. G050579 to consider petition filed pursuant to Penal Code section 1170.18, No. 14NF0221, Lance Jensen, Jonathan S. Fish, Judges. Motion granted. Appeal in case No. G051078 dismissed.
[Copyrighted Material Omitted]
Barbara A. Smith for Defendant and Appellant.
Frank S. Davis, Alternate Public Defender and Heather Moorhead, Deputy Alternate Public Defender, as Amicus Curiae on behalf of Defendant and Appellant.
Frank Ospino, Public Defender and Jacob DeGrave, Deputy Public Defender, as Amicus Curiae upon the Request of the Court of Appeal.
Kamala D. Harris, Attorney General and Marvin E. Mizell Deputy Attorney General, for Plaintiff and Respondent.
Appellant has appealed his felony conviction for multiple counts of forgery and grand theft and is currently serving a sentence for his conviction. Following his sentencing, in November 2014, the California voters enacted Proposition 47, entitled “the Safe Neighborhoods and Schools Act.” (See Note, Deering’s Ann. Pen. Code (2015 supp.) foil. § 1170.18, p. 79.)
Proposition 47 reclassifies as misdemeanors certain non-serious, nonviolent crimes that previously were felonies, and authorizes trial courts to consider resentencing anyone who is currently serving a sentence for any of the listed offenses.
Appellant tried to take advantage of Proposition 47’s postconviction procedure by petitioning the trial court to reduce the felony sentence for one of his forgery counts to a misdemeanor. The trial court declined to do so, on the ground it lacked jurisdiction to recall the sentence while appellant’s case was pending on appeal.
Thus, appellant and many other similarly situated defendants face a Hobson’s choice. On the one hand, they can wait to seek Proposition 47 relief until they complete their appeals from the underlying judgment of conviction. But by then, it may be too late to gain any benefit from a sentencing reduction because they already will have served the time in question. On the other hand, they can give up any pending appeal in order to obtain speedy Proposition 47 relief from the trial court.
There is a way out of this jurisdictional conundrum: a discretionary remand by the Court of Appeal to the trial court for the sole and express purpose of determining, within a specified time frame, a Proposition 47 petition to recall a sentence. We have authority to do so pursuant to Penal Code section 1260 to effectuate the resentencing provisions in Proposition 47 in a timely manner.
We grant appellant’s motion for a limited remand, and stay the pending appeal for a short period of time to allow the trial court to conduct a Proposition 47 postconviction hearing.
Statement of Facts and Procedural History
A jury found appellant guilty of four counts of grand theft and four counts of forgery, all as felonies. One of the felony counts (count 5) was forgery of a check for ...