Filed 4/27/17 P. v. Ward CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DYWANE JEREMIAH WARD,

Defendant and Appellant.


E067377

(Super.Ct.No. FWV1504244)

OPINION


APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Dywane Jeremiah Ward, in pro. per.; Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Dywane Jeremiah Ward was charged by information with second degree robbery. (Pen. Code, § 211, count 1.) The information also alleged that he had one prior strike conviction. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) On January 15, 2016, the parties stipulated to amend the information with the oral addition of count 2—a charge of grand theft of property from a person. (§ 487, subd. (c).) Pursuant to a plea agreement, defendant pled no contest to count 2 and admitted the prior strike conviction. The court sentenced him to the agreed-upon term of 32 months in state prison, which consisted of the low term of 16 months on count 2, doubled pursuant to the prior strike conviction. The court also dismissed the remaining count and four other misdemeanor cases, and it suspended the fine in another case. On September 8, 2016, defendant filed a petition for resentencing under section 1170.18 (Proposition 47), which the court denied.
Defendant filed a notice of appeal, based on the court’s denial of his petition for resentencing. We affirm.
PROCEDURAL BACKGROUND
On December 1, 2015, defendant was charged by information with second degree robbery. (§ 211, count 1.) The information also alleged that defendant had one prior strike conviction. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
At a hearing on January 15, 2016, the parties stipulated to amend the information with the oral addition of a felony charge of grand theft of property. (§ 487, subd. (c), count 2.) Defendant acknowledged that he had signed a plea agreement. Before accepting the plea, the court questioned him. Defendant confirmed that he understood all the constitutional rights he was waiving, the nature of the charges, and the penalties and punishments. He agreed that he understood the plea agreement and affirmed that no one had made any promises of a lesser sentence, no one had used threats or violence to force him to plead no contest, he was not under the influence of alcohol or medicine, and he had enough time to discuss his case with his attorney, including all of his rights, potential defenses, penalties, and future consequences. Defense counsel agreed that she had adequate time to discuss the issues with defendant and that he understood everything on the plea form. Defendant orally entered a plea of no contest to count 2 and admitted the prior strike conviction. Defense counsel noted that it was “a People v. West [(1970) 3 Cal.3d 595] plea.” The People concurred and accepted the plea. The court found that defendant had knowingly, intelligently, and voluntarily entered the plea. Pursuant to the agreement, the court sentenced defendant to a total term of 32 months in state prison, dismissed the remaining count and four other misdemeanor cases. It also suspended the fine in another case.
On September 8, 2016, defendant filed a petition for resentencing under section 1170.18, arguing that his conviction for grand theft had been reclassified as a misdemeanor.
On December 9, 2016, the court held a hearing on the petition. Defense counsel informed the court that defendant entered a plea agreement in January 2016, and confirmed that the offense occurred after the passage of Proposition 47. Defense counsel stated that defendant entered a plea to grand theft person and admitted a prior strike, but there was no discussion about whether defendant was eligible for a reduction under Proposition 47. The court noted that, at the time of the offense, Proposition 47 had been in effect for at least one year. The prosecutor then noted that “People versus West” was handwritten on the plea form and that defense counsel confirmed in court that it was a People v. West plea. The prosecutor then stated, “The only way that could be a felony, at that time, given the law, would be if the amount was—the defendant was agreeing that the amount was over [$]950 for purposes of the plea bargain. [¶] I’m assuming that the Court and two counsel, both the defense and the People, were fully aware of Prop. 47 and the implications. And even though they didn’t specifically address [it] on the plea form or the transcript . . . they knew . . . it was an implied waiver of Prop. 47, by the defendant not getting another strike and being convicted of a robbery and pleading in the alternative to a felony [section] 487 [subdivision (c)] and getting a different sentence.”
The court then stated that defendant clearly got the benefit of the bargain by reducing his charge from a robbery to grand theft person, and noted that the sentence for a robbery was more than a sentence for grand theft, and that the robbery would have been an additional strike. Defense counsel agreed. Nonetheless, he still argued that grand theft person was an eligible offense for reduction under Proposition 47 and asserted “[his] view” that the stolen items were small speakers that were not worth more than $950. The prosecutor reiterated that this case occurred well after Proposition 47 was enacted, and “everybody knew that.” He asserted that defendant “got something that was good for him,” and he and his counsel, as well as the prosecutor, were willing to have the court sentence him to a felony under the circumstances. He added that “[t]he only way that could be a felony was if all parties agreed that it was over $950.00.” The court then stated: “[A]nd that’s why they said People versus West, because if it wasn’t over $950.00, then it might not be a felony.”
The court acknowledged that there were some cases where the People have argued that they were not getting the benefit of the bargain if the convictions were reduced down to a misdemeanor; however, those were cases where the plea was entered before Proposition 47 passed. The court then stated, “But if everyone is aware of it at the time, seems to me that the People probably would not have agreed to reduce it to a grand theft person, knowing that the result was going to be that, now, it’s going to be reduced to a misdemeanor.” The court found that, under these circumstances where Proposition 47 was in effect at the time and had been for over a year at that point, both parties were aware of it and agreed to the matter being a felony on the grand theft charge, in order to reduce defendant’s state prison commitment and avoid giving him a second strike. The court concluded that it would be inequitable to now reduce the conviction to a misdemeanor, and it denied the petition.
ANALYSIS
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and two potential arguable issues: (1) whether defendant may challenge the validity of the plea; and (2) whether defendant had the right to file a petition for resentencing for his post-Proposition 47 conviction, and whether the court erred when it denied the petition. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. In a handwritten brief, he argues that he “meets the spirit” of Proposition 47, and his felony grand theft of person conviction should be reduced to a misdemeanor, in accordance with section 490.2. He specifically asserts that the prosecutor had to prove he took two $20 speakers from the alleged victim, and that he used “force or fear” to take them; however, the prosecutor did not have proof of these elements of the crime of second degree robbery. He further asserts that his public defender did not conduct discovery, did not investigate, and did not make any pretrial motions; instead, she “pled him out” to the charge of grand theft of person of two speakers valued at $20. However, he argues that, since the prosecutor could not meet its burden of proving every element of the charged offense of second degree robbery, he somehow did not get the benefit of a bargain. He then states that the “factfinding to determine whether a guilty plea admitted elements of a serious/violent offense is limited to . . . the terms of the plea agreement or transcripts of [the] colloquy between the judge and the defendant.” Defendant also contends that, at the Proposition 47 petition hearing, defense counsel failed to argue that defendant did not knowingly, intelligently and expressly agree that the value of the speakers in the grand theft charge was over $950; moreover, when the court took his plea, it did not indicate that defendant was agreeing that the value of the stolen goods was over $950. Finally, defendant claims that it was speculation for the prosecutor, at the hearing on the petition, to assume that both parties were aware of Proposition 47 at the time of the plea.
Defendant makes various assertions and claims; however, he appears to essentially be arguing that, even though the prosecution had no proof that he committed the originally charged crime of second degree robbery, his counsel “pled him out” to the charge of grand theft of person for two speakers valued at $20 each. Furthermore, at the hearing on the Proposition 47 petition, defense counsel failed to argue that defendant did not knowingly and expressly agree that the value of the stolen items was over $950, the court did not indicate that he was agreeing to that amount, and he did not actually get the benefit of a bargain. Therefore, the court should have granted his petition and reduced his grand theft conviction to a misdemeanor and resentenced him accordingly. We conclude that the court properly denied his petition.
As the court noted, at the time defendant entered his plea agreement, Proposition 47 had been in effect for over one year. The voters enacted Proposition 47 on November 4, 2014, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) “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).” (Id. at p. 1091.) Proposition 47 added section 490.2, which provides: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.” Defendant’s offense occurred on November 13, 2015, and he entered the plea agreement on January 15, 2016. Since Proposition 47 went into effect in November 2014, the court properly assumed that both parties were aware of it. (See Swenson v. File (1970) 3 Cal.3d 389, 394 [Parties to an agreement “are presumed to have had existing law in mind when they executed their agreement.”].)
Furthermore, the court properly concluded that the parties bargained for the grand theft of person charge to be a felony and stay a felony, since the parties knew that Proposition 47 was in effect. Although defendant is apparently contending his conviction should be reduced to a misdemeanor since the record does not show he expressly and knowingly agreed that the stolen items were worth over $950, and he only stole speakers worth $20, there was no evidence or discussion below of what the stolen items actually were. We note that the record on appeal also does not contain any evidence of the stolen items or their value.
Moreover, the record shows that the court thoroughly questioned defendant before taking his plea, and the court found that he had read and understood the plea form, he understood the nature of the charge and the penalties, and he knowingly, intelligently, and voluntarily waived his constitutional rights. He confirmed with the court that no one had used threats or violence to force him to plead no contest. Thereafter, the record clearly reflects that defendant pled no contest to a felony violation of section 487, subdivision (c). The court then sentenced him, pursuant to the plea agreement, to a total term of 32 months, based on the low term of 16 months, doubled pursuant to the prior strike. In other words, the record before us indicates that it was agreed upon that defendant was pleading to a felony, that it would not be reduced to a misdemeanor (since the parties were aware of Proposition 47), and that he would be serving 32 months. We further note that, as a result of the plea agreement, the court dismissed the second degree robbery charge in count 1, so that defendant did not face exposure of up to 10 years in prison and another strike conviction. The court also dismissed four other misdemeanor cases and suspended the fine in another case. Therefore, contrary to his claim, defendant did receive the benefit of a bargain.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


HOLLENHORST
Acting P. J.


We concur:


McKINSTER
J.


MILLER
J.