Filed 7/16/15 P. v. Owens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E062926
v. (Super.Ct.No. RIF1400916)
JERRY MACK OWENS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, and Jerry
Mack Owens, Jr., in pro. per. for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea to the court, defendant and appellant Jerry Mack Owens, Jr.,
pled guilty to felony unauthorized possession of methamphetamine while in jail (Pen.
1 Code, § 4573.8; count 1)1 and misdemeanor refusal to leave a business establishment
after requested to do so (§ 602.1; count 2). Defendant also admitted that he had sustained
one prior strike conviction, to wit, first degree burglary (§§ 667, 1170.12, subd. (c)(2)(a))
and five prior prison terms (§ 667.5, subd. (b)). In return, defendant was sentenced to a
total term of 32 months in state prison with credit for time served.
Defendant subsequently filed a petition to reduce count 1 to a misdemeanor
pursuant to section 1170.18. The trial court denied the petition. Defendant appeals from
the order denying his petition to reduce count 1 to a misdemeanor. We find no error and
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On February 21, 2014, defendant was arrested for intimidating or obstructing
Molino’s Coffee Shop in attempting to carry on its business and then refusing to leave the
coffee shop after being requested to do so by the shop’s owner, the owner’s agent, and by
a peace officer acting at the owner’s request. Defendant was subsequently transported to
jail. While in jail, officers found methamphetamine in defendant’s possession.
On February 25, 2014, a felony complaint was filed charging defendant with
possession of methamphetamine while in jail, a felony (§ 4573.6; count 1) and refusal to
leave a business establishment after being requested to do so, a misdemeanor (§ 602.1;
count 2). The complaint also alleged that defendant had sustained five prior prison terms
1 All future statutory references are to the Penal Code unless otherwise stated.
2 (§ 667.5, subd. (b)) and two prior serious or violent felony strike convictions, to wit, first
degree burglary and battery inflicting serious bodily injury (§§ 667, subd. (c) & (e)(2)(A),
1170.12, subd. (c)(2)(a)).
On May 13, 2014, the People amended count 1 to a violation of section 4573.8,
felony unauthorized possession of drugs while in jail. Defendant thereafter pled guilty to
amended count 1 and count 2. He also admitted that he had suffered one prior strike
conviction for first degree burglary and five prior prison terms.2 After directly examining
defendant, the trial court found that the pleas and admissions were entered into freely and
voluntarily; that defendant knowingly and intelligently waived his rights; that defendant
understood the charges and consequences; and that there was a factual basis for the pleas.
Defendant was thereafter immediately sentenced to a total term of two years eight months
in state prison as follows: the low term of two years eight months on count 1; and a
concurrent term of 180 days on count 2. The court imposed a term of one year on each of
the five prior prison terms but stayed those terms. The court also awarded defendant 164
days for time served.
On November 4, 2014, voters approved 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 certain drug- and theft-related offenses that previously were felonies or
2The People asserted that the second purported strike offense alleged in the complaint was not a strike, and the court noted that “it’s a one strike eligible offense.”
3 “wobblers” as misdemeanors unless they were committed by ineligible defendants.
(§ 1170.18, subd. (a).)
On November 25, 2014, defendant filed a petition to reduce his felony
unauthorized possession of drugs while in jail conviction to a misdemeanor pursuant to
section 1170.18.
On January 12, 2015, the trial court considered and denied defendant’s petition,
finding a violation of section “4573.8 is not a qualifying felony.” Defendant filed a
timely notice of appeal from that order on February 17, 2015.
II
DISCUSSION
After defendant appealed, 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 done so. In his two-page brief, defendant asserts that he was unaware he had
methamphetamine in his possession when he entered the jail; that he did not smuggle
anything into the jail; and that he falls within the spirit of Proposition 47.
As previously noted, Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by ineligible defendants. These
4 offenses were previously designated as either felonies or wobblers (crimes that can be
punished as either felonies or misdemeanors). “Proposition 47: (1) added chapter 33 to
the Government Code (section 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.)
Proposition 47 also created a new resentencing provision: section 1170.18.
Under section 1170.18, a person “currently serving” a felony sentence for an offense that
is now a misdemeanor under Proposition 47 may petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in
section 1170.18 shall have his or her sentence recalled and be “resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18,
subd. (b).) Subdivision (c) of section 1170.18 defines the term “ ‘unreasonable risk of
danger to public safety,’ ” and subdivision (b) of the statute lists factors the court must
consider in determining “whether a new sentence would result in an unreasonable risk of
danger to public safety.” (§ 1170.18, subds. (b), (c).)
The Legislature did not amend section 4573.8—felony unauthorized possession of
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Filed 7/16/15 P. v. Owens 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, E062926
v. (Super.Ct.No. RIF1400916)
JERRY MACK OWENS, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, and Jerry
Mack Owens, Jr., in pro. per. for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a plea to the court, defendant and appellant Jerry Mack Owens, Jr.,
pled guilty to felony unauthorized possession of methamphetamine while in jail (Pen.
1 Code, § 4573.8; count 1)1 and misdemeanor refusal to leave a business establishment
after requested to do so (§ 602.1; count 2). Defendant also admitted that he had sustained
one prior strike conviction, to wit, first degree burglary (§§ 667, 1170.12, subd. (c)(2)(a))
and five prior prison terms (§ 667.5, subd. (b)). In return, defendant was sentenced to a
total term of 32 months in state prison with credit for time served.
Defendant subsequently filed a petition to reduce count 1 to a misdemeanor
pursuant to section 1170.18. The trial court denied the petition. Defendant appeals from
the order denying his petition to reduce count 1 to a misdemeanor. We find no error and
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On February 21, 2014, defendant was arrested for intimidating or obstructing
Molino’s Coffee Shop in attempting to carry on its business and then refusing to leave the
coffee shop after being requested to do so by the shop’s owner, the owner’s agent, and by
a peace officer acting at the owner’s request. Defendant was subsequently transported to
jail. While in jail, officers found methamphetamine in defendant’s possession.
On February 25, 2014, a felony complaint was filed charging defendant with
possession of methamphetamine while in jail, a felony (§ 4573.6; count 1) and refusal to
leave a business establishment after being requested to do so, a misdemeanor (§ 602.1;
count 2). The complaint also alleged that defendant had sustained five prior prison terms
1 All future statutory references are to the Penal Code unless otherwise stated.
2 (§ 667.5, subd. (b)) and two prior serious or violent felony strike convictions, to wit, first
degree burglary and battery inflicting serious bodily injury (§§ 667, subd. (c) & (e)(2)(A),
1170.12, subd. (c)(2)(a)).
On May 13, 2014, the People amended count 1 to a violation of section 4573.8,
felony unauthorized possession of drugs while in jail. Defendant thereafter pled guilty to
amended count 1 and count 2. He also admitted that he had suffered one prior strike
conviction for first degree burglary and five prior prison terms.2 After directly examining
defendant, the trial court found that the pleas and admissions were entered into freely and
voluntarily; that defendant knowingly and intelligently waived his rights; that defendant
understood the charges and consequences; and that there was a factual basis for the pleas.
Defendant was thereafter immediately sentenced to a total term of two years eight months
in state prison as follows: the low term of two years eight months on count 1; and a
concurrent term of 180 days on count 2. The court imposed a term of one year on each of
the five prior prison terms but stayed those terms. The court also awarded defendant 164
days for time served.
On November 4, 2014, voters approved 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 certain drug- and theft-related offenses that previously were felonies or
2The People asserted that the second purported strike offense alleged in the complaint was not a strike, and the court noted that “it’s a one strike eligible offense.”
3 “wobblers” as misdemeanors unless they were committed by ineligible defendants.
(§ 1170.18, subd. (a).)
On November 25, 2014, defendant filed a petition to reduce his felony
unauthorized possession of drugs while in jail conviction to a misdemeanor pursuant to
section 1170.18.
On January 12, 2015, the trial court considered and denied defendant’s petition,
finding a violation of section “4573.8 is not a qualifying felony.” Defendant filed a
timely notice of appeal from that order on February 17, 2015.
II
DISCUSSION
After defendant appealed, 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 done so. In his two-page brief, defendant asserts that he was unaware he had
methamphetamine in his possession when he entered the jail; that he did not smuggle
anything into the jail; and that he falls within the spirit of Proposition 47.
As previously noted, Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by ineligible defendants. These
4 offenses were previously designated as either felonies or wobblers (crimes that can be
punished as either felonies or misdemeanors). “Proposition 47: (1) added chapter 33 to
the Government Code (section 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.)
Proposition 47 also created a new resentencing provision: section 1170.18.
Under section 1170.18, a person “currently serving” a felony sentence for an offense that
is now a misdemeanor under Proposition 47 may petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in
section 1170.18 shall have his or her sentence recalled and be “resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18,
subd. (b).) Subdivision (c) of section 1170.18 defines the term “ ‘unreasonable risk of
danger to public safety,’ ” and subdivision (b) of the statute lists factors the court must
consider in determining “whether a new sentence would result in an unreasonable risk of
danger to public safety.” (§ 1170.18, subds. (b), (c).)
The Legislature did not amend section 4573.8—felony unauthorized possession of
drugs while in jail. Moreover, a violation of section 4573.8 is not a wobbler offense.
Accordingly, the trial court correctly found section 4573.8 is not a qualifying offense.
5 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.
III
DISPOSITION
The order denying defendant’s petition to reduce his felony conviction (§ 4573.8)
to a misdemeanor and for resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
McKINSTER J.
MILLER J.