Filed 7/5/17 P. v. Musovich 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PETER RAYMOND MUSOVICH,

Defendant and Appellant.


F073673

(Super. Ct. No. 1468255)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Peter Raymond Musovich appeals from the order denying him resentencing pursuant to the provisions of Proposition 47, the Safe Neighborhoods and Schools Act (the Act). We affirm the order denying Musovich’s petition as he was ineligible for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
In 2014, a complaint was filed against Musovich charging him with possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and misdemeanor possession of drug paraphernalia in violation of Health and Safety Code section 11364.1, subdivision (a). It was also alleged Musovich had served seven prior prison terms within the meaning of Penal Code section 667.5.
Musovich entered into a plea agreement and pled guilty to the possession count, and admitted three prison priors in exchange for being placed on probation. It appears Musovich was ordered to enter into a drug treatment program pursuant to the provisions of Proposition 36 as a condition of his probation. Probation was eventually revoked, apparently because Musovich did not comply with requirements of the drug treatment program. Musovich admitted he violated his probation, and was sentenced to the midterm of two years plus three years for the enhancements for a total term of five years.
Musovich also apparently incurred a new felony charge for failing to register as a sex offender, and was sentenced to a consecutive term of eight months for that charge.
In 2016, apparently at Musovich’s insistence, defense counsel placed on calendar a hearing so that he could make an oral motion to have Musovich’s possession conviction reduced to a misdemeanor pursuant to the Act. There is no written motion in the record. Apparently, the public defender had informed Musovich a motion pursuant to the Act would be denied because he was ineligible for relief. The public defender then made the motion to permit the trial court to confirm Musovich was not eligible for relief. The trial court denied the motion finding Musovich was ineligible because of the sex offender registration requirement. Musovich appeals from the order denying his motion for relief pursuant to the Act.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after a thorough review of the record, he could not identify any arguable issues. After independently reviewing the record, we agree with appellate counsel that there are no arguable issues in this case.
Musovich seeks relief pursuant to the provisions of the Act, which reclassified certain drug and theft related offenses from felonies to misdemeanors, unless the crime was committed by certain ineligible defendants. In addition, the Act permitted those already convicted of the identified crimes to petition the trial court to have their convictions reduced from a felony to a misdemeanor. This provision of the Act is codified in section 1170.18.
Section 1170.18, subdivision (f) permits those who had been convicted of a felony, but would have been convicted of a misdemeanor had the Act been in effect at the time of the conviction, to petition the trial court to have the felony designated a misdemeanor. The crimes reclassified as misdemeanors by the Act are: (1) possession of certain controlled substances as provided for in Health and Safety Code sections 11350, 11357, and 11377; (2) shoplifting, as codified in section 459.5; (3) forgery in an amount less than $950, as codified in section 473, subdivision (b); (4) issuing bad checks in an amount less than $950, as codified in section 476a, subdivision (b); (5) petty theft with a prior where the amount taken is valued at less than $950; (6) receiving stolen property with a value of less than $950, as codified in section 496, subdivision (a); and (7) certain convictions for petty theft with a prior pursuant to the provisions of section 666. (§ 1170.18, subd. (a).)
While the crime of which Musovich was convicted is eligible for resentencing, Musovich himself is ineligible for resentencing because of his prior convictions. Section 1170.18, subdivision (i), provides that the provisions of section 1170.18 do not apply to persons who have been convicted of an offense listed in section 667, subdivision (e)(2)(C)(iv), or if he or she has been convicted of an offense for which the person is required to register pursuant to section 290, subdivision (c).
The record indicates, and the parties do not dispute, that in 1994 Musovich was convicted of violating section 243.4, sexual battery. Crimes for which a person is required to register as a sex offender are listed in section 290, subdivision (c). A violation of section 243.4 is listed in section 290, subdivision (c), as it was in 2014 when the Act was passed. Therefore, Musovich is required to register as a sex offender, and is not eligible for resentencing pursuant to section 1170.18, subdivision (i).
By letter dated August 12, 2016, we invited Musovich to inform this court of any issues he wished us to address. Musovich responded to our letter with the same argument he made in his application for a certificate of probable cause. When Musovich was convicted of violating section 243.4 in 1994, he was not required to register as a sex offender because a violation of section 243.4 was not listed in section 290,
subdivision (c). Mandatory registration as a sex offender became a requirement for violating section 243.4 in 1995 or 1996. Therefore, Musovich reasons section 1170.18, subdivision (i) should not apply to him because, when his judgment was entered, he was not required to register as a sex offender.
Musovich’s argument is unavailing. He has been required to register as a sex offender since at least 1996, even though a registration requirement was not imposed at the time the judgment was entered. The Act was passed in 2014. In 2014, a violation of section 243.4 was listed in section 290, subdivision (c) as an offense for which mandatory registration as a sex offender was required. Since Musovich was required to register as a sex offender when the Act was passed, and when the Act was passed it made those required to register as sex offenders ineligible for resentencing, logic compels the conclusion that Musovich is ineligible for resentencing.
DISPOSITION
The order denying Musovich’s petition for resentencing is affirmed.