Filed 4/17/18 P. v. Descano CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
VINCENT JAMES DESCANO,
Defendant and Appellant.

A150820

(Sonoma County
Super. Ct. No. SCR-637201)


Defendant Vincent James Descano appeals from an order denying his petition for resentencing under Health and Safety Code section 11361.8 (Proposition 64),
pursuant to Penal Code section 1170.18, which was enacted as part of Proposition 64. Appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. We directed the parties to file supplemental briefing concerning whether the trial court erred in considering the facts of defendant’s counts that had been dismissed pursuant to a Harvey waiver.
Upon our independent review of the record, we conclude that no arguable issues are presented for review. We affirm.
I. BACKGROUND
Defendant was arrested on or about June 29, 2013, following the discovery that he had been cultivating marijuana in a state park in Sonoma County. As part of the cultivation process, defendant diverted water, from a tributary of Willow Creek located in the state park, to water 40 to 50 marijuana seedlings. Also, 15 holes were dug two feet in diameter by two feet in depth. Approximately 40 yards of creek bed had been dug to bare rock and lined with plastic. Officers found a loaded firearm registered to defendant nearby.
On July 12, 2013, defendant was charged with cultivating marijuana (§ 11358), carrying a concealed weapon (Pen. Code, § 25400, subd. (a)(1)), possessing methamphetamine (§ 11377, subd. (a)), possessing a firearm inside a California state park (14 Cal. Code Regs., § 4313), polluting public water (Fish & G. Code, § 5652), and entering onto land for the purpose of injuring property of the landowner (Pen. Code, § 602, subd. (k).)
That same day, July 12, 2013, defendant pled no contest to cultivating marijuana and an amended count of diverting a water stream (Fish & G. Code, § 1602). The remaining counts were dismissed with a Harvey waiver and defendant was placed on probation for a period of three years.
On September 11, 2013, defendant’s conviction for the infraction of Fish and Game Code section 1602 was dismissed because the offense could only correctly be pled as a misdemeanor.
On May 31, 2016, defendant admitted he had violated his probation for using or possessing controlled substances or associated paraphernalia. The trial court sentenced him to a three-year local prison term (two years in custody and one year on mandatory supervision (Pen. Code, § 1170, subd. (h).).
On December 6, 2016, defendant filed a petition pursuant to 11361.8, subdivision (b) requesting for resentencing or dismissal of his cultivation (§ 11358) conviction. Defendant also requested that the trial court reduce his felony to a misdemeanor pursuant to Penal Code section 17, subdivision (b).
On March 15, 2017, the trial court denied defendant’s request to reduce his felony conviction to a misdemeanor. The court explained that defendant was not eligible for reduction under Penal Code, section 17, subdivision (b) because he had served a felony prison sentence. As to defendant’s request under Proposition 64, the trial court stated that, “while I do believe that, under the newer Prop 64 analysis, this Court does arguably have the discretion, I am going to deny the request.” The court continued that while it appreciated the “tremendous changes in the way that society views . . . marijuana, either the cultivation or the use of . . . in this case, what I am looking at is not just the growing of marijuana. I look at some of the . . . related impacts that your activities had . . . [¶] There were approximately 15 holes dug, approximately two feet in diameter and two feet deep. The creek bed of the nearby water source was severely disturbed approximately 40 yards of creek bed had been dug to bare rocks, arranged in many pools that were lined with plastic. They then go on to discuss finding irrigation hoses, pumps in the area. Further I had noted that, also, there was a firearm that had been located and recovered in the Willow Creek unit of the Sonoma Coast State Park.” The court concluded that these facts distinguished defendant’s case from a person growing marijuana on their own property, and thus denied defendant’s request to reduce his felony to a misdemeanor conviction.
II. DISCUSSION
On November 6, 2016, California voters approved Proposition 64. Among other things, Proposition 64 reduced the punishment for certain marijuana offenses. As relevant here, under section 11358, subdivision (c), cultivation of more than six living cannabis plants is a wobbler if the cultivation results in various types of environmental impacts.
Proposition 64 also provides for recall of sentence or dismissal in certain cases. It added section 11361.8, which provides in part: “(a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that Act been in effect at the time of the offense may petition for a recall or dismissal of sentence.”
Subdivision (b) of this statute provides, “(b) Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.”
Our review of the record, including the supplemental briefing, has disclosed no reasonably arguable appellate issues. Under section 11358, subdivision (d)(3), the trial court had broad discretion in deciding whether to reduce defendant’s conviction to a misdemeanor. In exercising its discretion, the court was entitled to consider, among other things, “ ‘the nature and circumstances of the offense . . . . ’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) The record shows the court considered appropriate factors in exercising its discretion, and did not err in considering the facts of the dismissed charges as they were transactionally related to the conviction for which he sought resentencing. (Harvey, supra, 25 Cal.3d at p. 758; People v. Cortez (1980) 103 Cal.App.3d 491, 496 [facts of charge dismissed with Harvey waiver properly considered at sentencing if “transactionally related” to conviction; but see People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 [improper to consider multiple charges of forgery dismissed with Harvey waiver in order to aggregate the value of the checks to beyond $950; each forgery separate transaction unrelated to the convictions for which resentencing was sought].)
Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for resentencing under section 11361.8.
III. DISPOSITION
The judgment is affirmed.
 




_________________________
REARDON, J.


We concur:


_________________________
STREETER, ACTING P. J.


_________________________
SCHULMAN, J.*




















*Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.




A150820 People v. Descano