People v. Mesa CA4/2

• Court: California Court of Appeal
• Decided: September 4, 2015
• Docket: E063375
• Status: Unpublished

Opinion

Filed 9/4/15 P. v. Mesa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E063375

v. (Super.Ct.No. FVI1202750)

MICHAEL JOSEPH MESA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Michael Joseph Mesa appeals from an order denying

his petition to reduce his convictions to misdemeanors pursuant to Penal Code

section 1170.18.1 We find no error and will affirm the order.

I

PROCEDURAL BACKGROUND

On October 23, 2012, a felony complaint was filed against defendant charging him

with one count of identity theft in violation of section 530.5, subdivision (a). The

complaint further alleged that defendant had suffered five prior prison terms (§ 667.5,

subd. (b)).

On January 3, 2013, pursuant to a plea agreement, defendant pled guilty to the

charge and admitted the prior prison term allegations. In return, defendant was sentenced

to a total term of eight years in county prison and released on his own recognizance

pursuant to a Vargas2 waiver on various terms and conditions and a promise to appear.

On June 20, 2013, defendant failed to appear as promised, and a bench warrant

was issued for his arrest.

On July 22, 2013, defendant admitted that he had violated the terms of his Vargas

waiver. The court thereafter noted that the previously imposed sentence of eight years

remained in effect and awarded defendant 144 days credit for time served.

1 All future statutory references are to the Penal Code unless otherwise stated.

2 People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).

2 On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next

day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47

classifies as misdemeanors certain drug- and theft-related offenses that previously were

felonies or “wobblers,” unless they were committed by certain ineligible defendants.

(§ 1170.18, subd. (a).)

On January 30, 2015, defendant filed a petition to reduce his felony

convictions in eight different cases to a misdemeanor and for resentencing pursuant to

section 1170.18. These eight cases were for the following convicted offenses: a 1991

misdemeanor unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a);

case No. FVI6999); a 1992 grand vehicle theft (former § 487h, subd. (a); case

No. FVI8011/VCR62801); a 1996 felon in possession of a firearm (former § 12021,

subd. (a)(1); case No. FVI04719); a 2001 unlawful driving or taking (Veh. Code,

§ 10851, subd. (a); case No. FVI011370); a 2001 evading an officer/willful disregard

(Veh. Code, § 2800.2, subd. (a); case No. FVI011370); a 2005 possession of drugs while

armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); case No. FVI020215);

a 2008 unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a); case

No. FVI801282); a 2009 unlawfully and fraudulently drawing insufficient funds in the

amount of $1,100 (§ 476a, subd. (a); case No. FVI901791); and a 2013 grand theft where

the value exceeded $950 (§ 484g, subd. (b); case No. FVI130211).

3 On February 27, 2015, the trial court considered and denied defendant’s petition,

finding defendant’s petition did not satisfy the criteria under section 1170.18 “due either

to the nature of the charges or the amounts involved.” Defendant filed a timely notice of

appeal from that order on April 20, 2015.

II

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to

represent him on appeal. Counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a

statement of the case, a summary of the facts and potential arguable issues, and

requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

As previously noted, Proposition 47 makes certain drug- and theft-related offenses

misdemeanors, unless the offenses were committed by certain ineligible defendants. The

passage of Proposition 47 also created section 1170.18, which provides for any defendant

“currently serving a sentence for a conviction . . . of a felony or felonies who would have

been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of

the offense [to] petition for a recall of sentence before the trial court that entered the

judgment of conviction in his or her case to request resentencing . . .” under the statutory

framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a).) If a

4 defendant properly seeks recall and resentencing pursuant to section 1170.18,

subdivision (a), the trial court must grant resentencing unless, in its discretion, it

determines resentencing “would pose an unreasonable risk of danger to public safety.”

(§ 1170.18, subd. (b).)

Among the crimes reduced to misdemeanors by Proposition 47, rendering the

person convicted of the crime eligible for resentencing, is receiving stolen property

where the property value does not exceed $950 (§ 496, subd. (a)) and possession of a

controlled substance (Health & Saf. Code, § 11350). In addition, “Proposition 47

(1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5,

490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a,

496, and 666 and Health and Safety Code sections 11350, 11357, and 11377.” (People v.

Rivera (2015) 233 Cal.App.4th 1085, 1091, citing Voter Information Guide, Gen. Elec.

(Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.)

Here, as the trial court concluded, the record shows defendant was ineligible for

reduction of his offenses to misdemeanors and for resentencing under section 1170.18

due to “the nature of the charges or the amounts involved.”

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.

5 III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

HOLLENHORST J.

CODRINGTON J.