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People v. Dunn

California Court of Appeals, Sixth District

June 24, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
ERIC ANTHONY DUNN, Defendant and Appellant.

         Monterey County Trial Court Superior Court No. SS140577A The Honorable Pamela A. Butler, Trial Judge.

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         COUNSEL

         Carrie Kojimoto under appointment by the Court of Appeal for Defendant and Appellant

         Kamala D. Harris, : Attorney General Gerald A Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Assistant Attorney General Eric D. Share and Amit Kurlekar, Deputy Attorneys General, for Plaintiff and Respondent.

         OPINION

         MÁRQUEZ, J.

         Pursuant to a negotiated plea agreement, defendant Eric Anthony Dunn pleaded no contest to possession of a controlled substance (cocaine) and admitted two prison prior allegations with the understanding he would receive a five-year sentence. As part of that agreement, the prosecution agreed to request the dismissal of two other charged felonies. Defendant was sentenced in August 2014 to a five-year "split sentence" prison term in which the court ordered defendant to serve two years six months in county jail with mandatory supervision for the remainder of defendant's sentence.

         Three months later, in November 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reduced specified property and drug offenses to misdemeanors. Proposition 47 also provided a recall procedure to resentence defendants convicted of certain felonies. In December 2014, defendant petitioned under Proposition 47 to have his sentence recalled and his felony conviction reclassified a misdemeanor. In opposing the petition, the People argued that reclassification would deprive them of the benefit

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of their plea agreement because defendant would receive a sentence reduction while retaining the benefits of the agreement (i.e., the dismissal of two felonies). After the trial court confirmed defendant's unwillingness to withdraw his plea as a condition to obtaining relief under Proposition 47, it denied the petition.

         On appeal, defendant contends the trial court erred by interpreting Penal Code section 1170.18, subdivision (a) as precluding Proposition 47 resentencing when the conviction upon which the sentence was based arose out of a negotiated plea.[1] We hold that a defendant whose conviction is based upon a negotiated plea who is otherwise eligible for resentencing under Proposition 47 may not be denied relief on the ground that reclassification of his or her conviction to a misdemeanor would reduce the bargained-for punishment of the plea. We also conclude that where a defendant files a petition for resentencing under section 1170.18(a) under the circumstances presented here, the trial court should neither condition a grant of the petition on the defendant's withdrawal from the plea agreement nor grant the prosecution's request to withdraw from the plea agreement. Accordingly, we will reverse the order denying the petition for resentencing and remand the matter for reconsideration of the petition's merits without regard to whether a favorable ruling on the petition would result in a lesser punishment than provided in the plea agreement.

         FACTS[2]

         Shortly after 5:00 p.m. on March 4, 2014, a police officer conducted a traffic stop of a vehicle driven by defendant in the Chinatown section of Salinas, an area known for drug trafficking. The officer determined that defendant was on conditional probation, was driving with a suspended license, and had an outstanding traffic warrant. During a search incident to arrest, the officer located in defendant's pants pocket a powdery substance determined to be cocaine. Defendant denied knowledge of the substance and claimed the pants belonged to his brother.

         A search of defendant's vehicle yielded multiple baggies of substances that tested presumptively positive for cocaine and base cocaine. Police also located in the vehicle $571 (comprised mostly of $20 bills), 18 rounds of.38-caliber ammunition, 35 rounds of.25-caliber ammunition, and a police scanner.

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         PROCEDURAL BACKGROUND

         On April 7, 2014, defendant was charged by information with three felonies: possession of a controlled substance for sale (Health & Saf. Code, § 11351; count 1); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 2); and being a felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 3). The prosecution further alleged that defendant had suffered two prison priors (§ 667.5, subd. (b)).

         On July 2, 2014, pursuant to a negotiated plea, defendant pleaded no contest to count 2 and admitted the two prison priors. He entered his plea based upon the understanding (1) he would receive a split sentence of five years pursuant to section 1170, subdivision (h), and (2) the District Attorney would request the dismissal of counts 1 and 3. On August 1, 2014, the court imposed a five-year split sentence in accordance with the negotiated plea, based upon a three-year upper-term sentence for the count 2 conviction and one year for each of the two prison priors. The court ordered defendant to serve two years six months in Monterey County Jail, and it suspended execution of the remainder of the sentence with defendant to be placed on mandatory supervision pursuant to section 1170, subdivision (h)(5)(B).

         Neither the reporter's transcript nor the clerk's minutes of the August 1, 2014 sentencing hearing specifically reflect the court's dismissal of counts 1 and 3. But the plea agreement clearly provided that dismissal of these counts was a condition of defendant's no contest plea, and the sentence (as reflected in the minutes and abstract of judgment) was imposed only as to count 2. Furthermore, the prosecution, in opposing the petition below, argued that because other felony counts had been dismissed pursuant to the plea agreement, reclassification of the felony (drug possession) to which defendant pleaded guilty would deprive the People of the benefit of their bargain. And in this appeal, the Attorney General bases her argument upon the assumption that the two felonies had been dismissed. Because a plea agreement is a form of contract interpreted under contract principles, and because "[a]cceptance of the agreement binds the ...


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