Filed 1/18/18 P. v. Hamilton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

GEORGE HAMILTON,

Defendant and Appellant.

F075351

(Super. Ct. No. 387783-4)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise L. Whitehead, Judge.
Allan Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant George Hamilton sought to have two felony convictions for violating Penal Code section 211, robbery, redesignated as misdemeanors pursuant to Proposition 47, as embodied in section 1170.18. The superior court denied the request and Hamilton appealed. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On June 16, 1988, Hamilton and an accomplice entered a minimart. Hamilton said, “This is a hold-up” and placed a gun on the counter; he then repeated the statement and pointed the gun at one of the clerks. Hamilton’s accomplice stepped behind the counter and removed the cash from the register. Hamilton attempted to fire the gun by pulling the trigger, but it did not fire. Hamilton exclaimed, “Damn” and pulled the trigger again; this time the gun discharged.
On July 1, 1988, Hamilton robbed a fast food restaurant. He told the cashier he had a gun, but Hamilton later claimed he did not actually have a gun. He fled the location on foot. That same day, Hamilton attempted to rob two other establishments, both times telling the employees he had a gun.
On August 24, 1988, Hamilton entered into a plea agreement to plead guilty to two counts of violating section 211 and admit a section 12022.5, subdivision (a) firearm enhancement as to one count. In exchange for his plea, other charges were to be dismissed and a sentencing lid of the midterm for the principal count was part of the agreement.
Prior to accepting the plea, the trial court verified the factual basis for the plea. Hamilton stipulated that he willfully and unlawfully by means of force or fear took personal property as to both counts, and personally used a firearm in one count. The pleas were entered after the stipulation to the factual basis.
On September 19, 1988, Hamilton was sentenced to the midterm of three years on count 1; a consecutive one-third the midterm for count two, or one year; and an additional consecutive two years for the firearm enhancement, for a total term of six years.
On January 5, 2017, Hamilton filed an “Emergency Request” for information on his 1988 convictions and stated he was seeking relief under Proposition 47 for his two 1988 robbery convictions. Hamilton further stated that the 1988 robbery had been used as a third strike in imposing a 39-years-to-life sentence he currently was serving in Pelican Bay State Prison. Hamilton opined that he had never been convicted of rape or murder; understood that robbery was a serious crime; and asked for a “fair opportunity to seek post-conviction relief.”
The superior court treated the Emergency Request filed by Hamilton as a petition for relief under Proposition 47. On February 8, 2017, the superior court denied the petition, finding Hamilton was ineligible for relief because the prior robbery convictions did not qualify for relief under section 1170.18.
Hamilton filed a notice of appeal on March 20, 2017.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, on July 6, 2017. That same day, this court issued its letter to Hamilton inviting him to submit a supplemental brief.
Hamilton submitted a supplemental brief on August 2, 2017, arguing that he was entitled to relief under Proposition 47.
“ ‘On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act [(the Act)].…’ [Citation.] ‘Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).’ [Citation.] [¶] Proposition 47 also added section 1170.18, concerning persons currently serving a sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It permits such a person 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 in accordance with’ specified sections that ‘have been amended or added by this act.’ (§ 1170.18, subd. (a).) If the trial court finds that the person meets the criteria of subdivision (a), it must recall the sentence and resentence the person 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).)” (People v. Morales (2016) 63 Cal.4th 399, 404; accord, People v. Valencia (2017) 3 Cal.5th 347, 355.)
The petitioner bears the initial burden of establishing eligibility for resentencing under Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) Hamilton did not meet this burden; all evidence established that the offenses for which Hamilton was requesting reclassification were not included in section 1170.18. A robbery conviction under section 211 is not included in the list of felonies subject to reclassification as misdemeanors under section 1170.18. (§ 1170.18, subd. (a).) Therefore, the superior court properly denied Hamilton’s petition.
After an independent review of the record, we find that no reasonably arguable factual or legal issue exists.
DISCUSSION
The February 8, 2017 order denying relief is affirmed.