Filed 10/18/17 P. v. Allen CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
HERBERT PERRY ALLEN,
Defendant and Appellant.
|
F074176
(Super. Ct. No. BF162173A)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Eric Bradshaw, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant Herbert Perry Allen appeals from the denial of his petition for resentencing pursuant to Penal Code[1] section 1170.18 (Proposition 47). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 24, 2015, Allen pled no contest to misdemeanor making criminal threats (§ 422) and second degree burglary (§§ 459, 460, subd. (b)), and he admitted that he had three prior convictions within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)) in exchange for a stipulated term of six years.
On December 23, 2015, the court sentenced Allen to a doubled, aggravated six‑year prison term on his second degree burglary conviction and a concurrent 180-day term on his criminal threats conviction.
On June 29, 2016, Allen filed a pro se petition for resentencing pursuant to Proposition 47.
On July 11, 2016, the Kern County District Attorney filed a response.
On August 4, 2016, the court found Allen did not qualify for resentencing because he was sentenced after the passage of Proposition 47[2] and it denied his petition. Later that day, Allen filed an appeal challenging the court’s denial of his petition.
Allen’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, on February 17, 2017, Allen filed a supplemental opening brief contending he is entitled to resentencing under Proposition 47 because his second degree burglary involved shoplifting and he could not have been prosecuted for burglary regardless of whether he committed the offense after the enactment of Proposition 47. Allen is incorrect.
As noted earlier, he is not eligible for resentencing pursuant to Proposition 47 because the statute specifically states that it applies to “A person who, on November 5, 2014, was serving a sentence for a conviction” (italics added), and Allen did not begin serving a sentence in this matter until after that date. Further, his contention that he was wrongfully prosecuted for burglary because his conduct qualified as shoplifting (§ 459.5) is not cognizable on this appeal because it challenges the original judgment in this matter and should have been raised in an appeal filed within 60 days after rendition of that judgment. (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The order appealed from is affirmed.
* Before Levy, Acting P.J., Detjen, J. and Franson, J.
[1] All further statutory references are to the Penal Code unless otherwise noted.
[2] Section 1170.18, subdivision (a) provides: “A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (Italics added.)
