Filed 10/13/17 P. v. Beltz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Reversed.

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

On May 25, 2005, defendant and appellant Rick Beltz pled guilty to six separate crimes, including possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). In exchange, defendant was initially sentenced to a total prison term of eight years six months—including the upper term of six years for the possession count—and released on his own recognizance pursuant to a Vargas[1] waiver on various terms and conditions and a promise to appear. Defendant thereafter committed residential burglary and was charged with violating Penal Code section 459.[2]

On September 22, 2005, the trial court found that defendant had violated the terms of his Vargas waiver. For the methamphetamine possession offense, the trial court sentenced defendant to the aggravated term of six years in prison, to be served consecutively with his sentence in another case.

On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, Penal Code section 1170.18. Penal Code section 1170.18 creates a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)

On February 22, 2016, defendant filed a petition under Proposition 47, asking for resentencing on his possession of methamphetamine conviction. His petition also sought to reduce his section 459 conviction to a misdemeanor. The prosecution filed a form response stating that defendant was still serving his sentence and was entitled to resentencing. The trial court, however, denied defendant’s petition. Nothing in the record provides the trial court’s reasoning for denying the petition.

On September 6, 2016, defendant filed an untimely notice of appeal. However, because defendant was not present when the petition was denied and the court only notified him of the denial after the filing deadline, we ordered the superior court clerk to deem the notice of appeal as timely.

DISCUSSION

A. THE TRIAL COURT SHOULD REEVALUATE WHETHER DEFENDANT IS ELIGIBLE FOR RELIEF UNDER PROPOSITION 47

Defendant contends that the trial court erred in concluding that his methamphetamine possession conviction was not a qualifying felony under Proposition 47. The People concede that methamphetamine possession is one of the enumerated offenses that is eligible for relief under Proposition 47. Therefore, a remand is appropriate because the record does not reflect the trial court’s basis for denying relief and fails to indicate whether defendant meets the other statutory criteria for relief under Proposition 47.

Section 1170.18 provides that a person who has completed a sentence for a felony conviction is eligible for relief if: (1) the underlying crime is now a misdemeanor under the Act; and (2) the person does not have certain disqualifying prior convictions. (Pen. Code, § 1170.18, subds. (a), (f), (i).) Possession of methamphetamine is a misdemeanor under the Act. (Health & Saf. Code, § 11377, subd. (a).) A person seeking relief under the Act bears the initial burden of proving his or her eligibility for relief. (See People v. Sherow (2015) 239 Cal.App.4th 875, 879.)

In this case, defendant satisfied the first criteria for relief under Proposition 47 because methamphetamine possession is now considered a misdemeanor under the Act. However, there is nothing in the record to indicate that defendant satisfied the second criteria—that he does not have a disqualifying prior conviction. On the standard form that defendant completed to request relief in the trial court, defendant left blank the check-box asking whether he had a prior disqualifying conviction. Moreover, in its response to defendant’s petition, the prosecution did not mention whether defendant had such a conviction. Furthermore, there is nothing in the appellate record showing that defendant is free of prior disqualifying convictions.

Therefore, the record is unclear as to whether the trial court erred or whether it properly denied relief under Proposition 47 because of a disqualifying prior conviction. Therefore, the case is remanded for the trial court to reevaluate whether defendant meets all of the statutory requirements for relief under Proposition 47. On remand, defendant has the burden to establish the threshold elements of relief, including the fact that he does not have a prior disqualifying conviction under Penal Code section 1170.18, subdivision (i).

DISPOSITION

The matter is remanded to the trial court to reevaluate whether defendant is eligible for relief under Proposition 47.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.