Filed 10/20/17 P. v. Jones CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In 2015, defendant Anthony Jones pled no contest to one felony count of grand theft in violation of Penal Code section 487, subdivision (c),[1] for an agreed upon sentence. In 2017, defendant filed a petition to reduce his offense to a misdemeanor, and implicitly to be resentenced, under Proposition 47, which was denied. Defendant timely appealed from that order. Defendant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In an information filed August 5, 2015, defendant was charged in the County of Sonoma with one felony count of violating section 211, robbery of an individual on or about June 6, 2015. The information gave notice that the alleged offense was a serious and violent felony within the meaning of section 667.5.

We rely on the Sonoma County Felony Presentence Report filed September 23, 2015, for the probation officer’s summary of the offense, which itself appears to be taken from a specific “Rohnert Park DPS Report.” On June 6, 2015, at approximately 4:19 p.m., an officer responded to Home Depot regarding a theft and subsequent assault on a loss prevention officer. The loss prevention officer, who had been watching defendant on a security camera, saw him grab what appeared to be a knife from the shelf, walk in the men’s bathroom, exit the bathroom, and walk to the garden area and “past all of the cash registers” without attempting to pay for anything. The loss prevention officer attempted to contact defendant in front of the store, and “stated he planned to ‘bear hug’ him to take him into custody. However, [defendant] turned toward [the loss prevention officer] and attempted to strike him with a closed fist. [The loss prevention officer] lost his balance and stepped backward, then tripped over a planter box and struck his head on the pavement. [Defendant] did not strike [the loss prevention officer], but the officer believed [defendant’s] shirt was torn during the altercation.” Other loss prevention officers followed defendant, but then lost sight of him; he was found hiding in front of a car nearby.

“While [defendant] was being taken into custody, a small black folding pocket knife fell from his pocket. It was noted [defendant] was prohibited from possessing weapons due to conditions of supervision in SCR-660506. Additionally, he was in possession of $20.43. A search of the area located an item identified as a knife sharpener that [defendant] took from Home Depot, with a reported value of $19.97, as well as gift cards that appeared to be from Wal-Mart. Video surveillance from Home Depot documented Jones inside the store, as well as the altercation outside.” After defendant was arrested and advised of his Miranda rights, he stated that he believed the loss prevention officer was “the new boyfriend of his ex-girlfriend, and denied taking any items from Home Depot. He said he only went in the store to look around while he waited for a friends to pick him up and take him to Santa Rosa. When questioned whether he was in Wal-Mart that day, [defendant] stated he went into the store that morning but not recently. Another officer obtained a photo of [defendant] entering Wal-Mart at 3:32 pm.”

Pursuant to a plea agreement, defendant pled no contest to a newly added count 2 in an amended information, felony grand theft in violation of section 487, subdivision (c). The clerk’s minutes indicate that the no contest plea was entered into pursuant to “Peo[ple] v. West,” which is a reference to a case of that name. (People v. West (1970) 3 Cal.3d 595.) As our colleagues in Division Three explained in People v. Rauen (2011) 201 Cal.App.4th 421, 424, “[A] West plea [is] ‘a plea of nolo contendere, not admitting a factual basis for the plea.’ Such a plea, also referred to as an Alford plea, based on North Carolina v. Alford (1970) 400 U.S. 25, 37-38, allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence.” (Ibid., fn. omitted, quoting In re Alvernaz (1992) 2 Cal.4th 924, 932.)

As defendant’s attorney on appeal aptly notes in this case, “For [defendant], the benefit from the bargain here was dismissal of the robbery count and specification of the sentence as imposition of the two-year mid-term under section 1170, subd (h), with eight months in the county jail followed by 16 months under mandatory supervision, which would run concurrently with the balance of time that remained to be served in Case No. SCR-660506.”

Defendant was sentenced on September 23, 2015, in accordance with the terms of the plea agreement. By court order dated February 17, 2016, his case was transferred to the Solano County Superior Court (defendant’s county of residence) pursuant to section 1203.9, for the rest of his term of mandatory supervision.

On March 6, 2017, defendant filed a form “Petition for Resentencing/For Reduction to Misdemeanor” in Solano County, checking the box “for reduction to misdemeanor” under section 1170.18, subdivision (f), which stated that he had “completed the above sentence.”

The Solano County District Attorney filed a written opposition to the petition. The district attorney noted correctly that defendant was still currently on mandatory supervision,[2] so the Proposition 47 request should actually be a petition for resentencing under section 1170.18, subdivision (a). The district attorney opposed the petition on two grounds. First, the defendant, per a plea agreement, had specifically pled to “. . . unlawfully taking of . . . property in a value exceeding $950, from the person of Jacob Cantrell” as a felony;[3] and second, because Proposition 47 was in effect at the time defendant committed the offense, pled no contest, and was sentenced, the retroactive provisions permitting resentencing had no applicability to this case.

The Solano County Superior Court held a hearing on March 17, 2017, at which defendant was present and represented by counsel. Defense counsel argued that “the amount that was stolen was clearly under $950, notwithstanding the fact that [defendant] entered into the 487(c), which may have included the language to indicate that it was over $950, clearly, that amount stolen, the value of it was under 950 and I believe [defendant], based on that, is entitled to a reduction to a misdemeanor.” The trial court responded that the plea was taken “under People versus West. It says right in the Minute Order: People versus West, which means, that notwithstanding the fact that there wasn’t necessarily a factual basis, they did it because it was in his interest” because he had been charged originally with robbery. The petition was denied.

On April 14, 2017, defendant filed a notice of appeal of denial of the petition.

REVIEW

We have reviewed the record on appeal for any arguable issues. Defendant’s petition for resentencing was filed pursuant to Proposition 47, which is codified at section 1170.18. At the time defendant committed the offense, entered his plea of no contest, and was sentenced, Proposition 47 was already in effect.[4] Defendant was thus outside the scope of the retroactive provision in section 1170.18 that permits a petition for resentencing for one “who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense.” (§ 1170.18, subd. (a).) The act was in effect at the time of his offense.

Defendant filed his petition for resentencing (through his counsel in the Solano County Public Defender’s office) in Solano County, where his mandatory supervision had been transferred pursuant to the transfer order described above. Section 1203.9, subdivision (b) states that “[t]he court of the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer.” The district attorney did not challenge that Solano County was the proper court to petition for Proposition 47 relief on a Sonoma County sentence. The issue of the appropriate court for a Proposition 47 petition after a case has been transferred is presently pending before our Supreme Court. (See People v. Adelmann (2016) 2 Cal.App.5th 1188 [court to which probationer’s case has been transferred pursuant to section 1203.9 should hear the section 1170.18 petition]; review granted, Nov. 9, 2016, S237602].)

We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436.

DISPOSITION

The order denying the petition for resentencing is affirmed.

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Miller, J.

We concur:

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Richman, Acting P.J.

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Stewart, J.