Filed 10/23/17 P. v. Rosales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
ALEX JESSIE ROSALES,
Defendant and Appellant.
|
F073419
(Super. Ct. No. 1017544)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.
Patrick Joseph Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Alex Jessie Rosales appeals from the trial court’s denial of his redesignation petition under Proposition 47, with regard to two felony convictions for vehicle burglary. We detect no error in the trial court’s denial of Rosales’s petition for Proposition 47 relief. Accordingly, we affirm the order.
FACTS AND PROCEDURAL HISTORY
Since this is an appeal from a Proposition 47 proceeding in relation to convictions that were secured by means of a plea bargain, we will omit a factual overview here.
The underlying case proceeded in the Stanislaus County Superior Court. On April 4, 2002, Rosales was convicted of two felony counts of vehicle burglary in violation of Penal Code section 459;[1] one felony count of taking or driving a motor vehicle without the owner’s consent in violation of Vehicle Code section 10851; and one misdemeanor count of evading a police officer in violation of section 2800.2. Execution of sentence was suspended. Rosales was placed on felony probation on condition he serve 365 days in the county jail. On January 11, 2006, probation was terminated pursuant to a formal motion filed by the People, on grounds that Rosales was serving a life sentence in state prison for a murder committed in Santa Clara County.
On February 5, 2016, Rosales filed in the Stanislaus County Superior Court a petition pursuant to Proposition 47, seeking reduction of both his section 459 convictions to misdemeanors. The trial court denied the petition, finding Rosales “statutorily not eligible” for relief.
DISCUSSION
Proposition 47 was approved by voters on November 4, 2014, and became effective the next day. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see Cal. Const., art. II, § 10, subd. (a).) The measure reduced certain drug- and theft-related offenses that had previously been designated as felonies or wobblers to straight misdemeanors. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 4-14, pp. 70-74.) Proposition 47 also enacted section 1170.18, which allows eligible felons “to petition the court to have their felony convictions designated as misdemeanors and their penalties reduced.” (People v. Walker (2016) 5 Cal.App.5th 872, 875 (Walker).) Relief under Proposition 47 is precluded for individuals who have a prior conviction for so-called super strike offenses (i.e., the offenses listed in § 667, subd. (e)(2)(C)(iv)). (§ 1170.18, subd. (i); Walker, supra, at p. 876.)
As noted above, Rosales filed a petition under Proposition 47, seeking reduction of his two section 459 convictions to misdemeanors. Rosales now challenges the trial court’s denial of his Proposition 47 petition. However, relief under Proposition 47 is precluded if a petitioner has suffered a conviction for a “super strike” offense as enumerated in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i); Walker, supra, at p. 876.) Murder is such a “super strike” offense. (§ 667, subd. (e)(2)(C)(iv)(IV); Walker, supra, at p. 876.) Since the record reflects that Rosales has suffered a murder conviction, the trial court properly denied his petition on that basis.[2]
Rosales argues that because his murder conviction post-dates the vehicle burglary convictions at issue in his Proposition 47 petition, the murder conviction does not bar relief under Proposition 47. Rosales relies on the fact that the term “prior conviction” as used in section 1170.18, subdivision (i) is somewhat ambiguous (see § 1170.18, subd. (i) [barring Proposition 47 relief for individuals who have suffered a “prior conviction” for a super strike offense].) However, Rosales’s argument is foreclosed by People v. Montgomery (2016) 247 Cal.App.4th 1385, 1388 (Montgomery), which we find persuasive. Montgomery and several successor cases have clarified that making “a distinction between [super strike] convictions suffered before the conviction being considered for redesignation and those suffered contemporaneously or afterward makes no sense.” (Id. at p. 1392.) Moreover, “[n]othing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought. The plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense.” (People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184; Walker, supra, 5 Cal.App.5th at p. 879 [“within the context of Proposition 47, a prior disqualifying conviction is a super strike conviction suffered any time before the court’s ruling on an application to have a felony conviction reclassified as a misdemeanor”]; People v. Casillas (2017) 13 Cal.App.5th 745, 751-752 [same].)
Rosales further argues that because the trial court denied his petition on grounds of statutory ineligibility without further clarification of the grounds for denial (e.g., an explicit reference to his prior murder conviction), the matter must be remanded for the trial court to specify its reasoning. We reject this argument since a review of the record as a whole makes clear the trial court denied Rosales’s petition on account of his murder conviction. In any event, Rosales has not supplied any authority to support his request for remand on this basis.
DISPOSITION
The order is affirmed.
* Before Levy, Acting P.J., Smith, J. and Meehan, J.
[1] Subsequent statutory references are to the Penal Code unless otherwise specified.
[2] The trial court could also properly have denied Rosales’s petition for Proposition 47 relief on grounds that offenses pursuant to section 459 are outside the purview of Proposition 47. (See People v. Acosta (2015) 242 Cal.App.4th 521, 526 [vehicle burglary is not mentioned in the list of crimes reduced to misdemeanors by Proposition 47]; People v. Chen (2016) 245 Cal.App.4th 322, 326 [burglary offenses are excluded from purview of Proposition 47 with the exception of shoplifting pursuant to section 459.5, which was specifically enacted as part of Proposition 47].) In light of these authorities, which we find persuasive, Rosales’s argument that his vehicle burglary convictions were subject to redesignation under Proposition 47 is unavailing.
