Filed 11/26/18 P. v. McCreary CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Jeffrey Steven McCreary appeals orders denying his petitions for resentencing of felonies to misdemeanors under Penal Code section 1170.18.[1] The district attorney stated McCreary was not eligible for relief because of his subsequent conviction for first degree murder. The trial court denied his petitions for resentencing. McCreary is serving a term of 25 years to life for murder.[2]

Appointed appellate counsel filed a brief presenting no argument for reversal but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). After having independently reviewed the entire record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2014, McCreary was convicted of first degree murder and sentenced to an indeterminate term of 25 years to life imprisonment. (§ 187, subd. (a).) He had prior felony convictions, including convictions in 1995 for possession of a firearm by a felon (§ 12021, subd. (a)) and receiving stolen property (§ 496, subd. (a))[3] in case No. SCN010711, and in 2006 for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. SCN204403. McCreary was also convicted of felonies in 1989 and 1992. (§§ 211, 12022.5; Health & Saf. Code, § 11377, subd. (a).)

At some point not clear in the record, McCreary filed petitions to reduce his felony convictions to misdemeanors in case Nos. SCN010711 and SCN204403. On July 11, 2018, the trial court denied his petition in case No. SCN010711 and on July 13, 2018, the trial court denied his petition in case No. SCN204403. The district attorney noted that McCreary was not entitled to the reduction of his felony convictions to misdemeanors because he was convicted for first degree murder in case No. SCN301965.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel has presented no argument for reversal and invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel identified the following as possible, but not arguable, issue:

1. "Should appellant's convictions of Penal Code [section] 496, subdivision (a) and Health and Safety Code section 11377, subdivision (a) be reduced to misdemeanors following the Passage of Proposition 47? (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089; People v. Hatt (2018) 20 Cal.App.5th 321, 327-328 [defendant not eligible for redesignation of a prior felony conviction to a misdemeanor under Proposition 47 if the defendant suffers a disqualifying conviction after filing an application but prior to a ruling on the application]; People v. Casillas (2017) 13 Cal.App.5th 745, 751-752 [same].)"

A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. We granted McCreary permission to file a brief on his own behalf. He has not filed a brief. McCreary has been represented by competent counsel on this appeal.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.