Filed 9/27/18 P. v. Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
DERRICK WILSON,
Defendant and Appellant.
|
E070482
(Super.Ct.No. FSB04253)
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.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
In September 1994, defendant and appellant Derrick Wilson pled guilty to robbery (Pen. Code, § 211)[1] with the personal use of a firearm (§ 12022.5, subd. (a)). He also admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i)), to wit, two 1987 residential burglary convictions. In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to a total term of 28 years to life in state prison.
In November 2017, defendant filed a motion for resentencing and to reduce his current robbery and two prior residential burglary convictions to misdemeanors under the Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18, subd. (a).)
In April 2018, the trial court denied defendant’s section 1170.18 petition, finding defendant was “statutorily ineligible.” Defendant appeals from the trial court’s order denying his post-judgment section 1170.18 petition. Based on our independent review of the record, we find no error and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND[2]
On April 27, 1994, at about 11:30 p.m., the victim was pumping gas into his truck at a gas station in Colton. When the victim returned to his truck, defendant pushed the victim up against the truck, pushed an object that felt like a gun into the victim’s back, and demanded the victim’s wallet and cash. The victim gave his wallet to defendant.
Following a preliminary hearing, on July 22, 1994, an information was filed charging defendant with two counts of robbery (§ 211; counts 1 & 2), one count of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 3), and assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 4). The information also alleged that in the commission of the offenses, defendant personally used a firearm (§§ 12022.5, subd. (a), 12022, subd. (a)(1)). The information further alleged that defendant had suffered two prior strike convictions (§667, subds. (b)-(i)) for residential burglary in 1987, and three prior prison terms (§ 667.5, subd. (b)).
On September 2, 1994, defendant pled guilty to count 2, and admitted that he had personally used a firearm during the commission of the robbery. Defendant also admitted that he had suffered two prior strike convictions for residential burglary in 1987. In return, the remaining allegations were dismissed, and defendant was sentenced to a total term of 28 years to life in state prison.
On November 4, 2014, voters enacted Proposition 47. It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers, unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person currently serving a felony sentence or a person who has completed his or her sentence, whether by trial or plea, for an offense that is now a misdemeanor under Proposition 47, may petition before the trial court that entered the judgment of conviction in his or her case to have the felony conviction designated as misdemeanor. (§ 1170.18, subds. (a) & (f).)
On November 13, 2017, defendant in propria persona filed a petition to reduce his current robbery conviction and prior residential burglary convictions to misdemeanors and for resentencing pursuant to section 1170.18. Defendant argued that his current and prior convictions involved theft and that the monetary value was less than $950. (§§ 1170.18, subd. (a), 490.2, subd. (a).)
On April 20, 2018, the trial court denied defendant’s section 1170.18 petition, finding defendant was not statutorily eligible due to the nature of the charges. Specifically, the court stated: “The petition for relief under Prop. 47 to reduce the matter to a misdemeanor, resentence as a misdemeanor, is denied given the nature of the charges, defendant having pled guilty to robbery, PC 211, with use of a firearm.”[3]
On May 7, 2018, defendant filed a timely notice of appeal challenging the trial court’s order denying his post-judgment section 1170.18 petition.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. 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, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
As previously noted, Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, are: shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2); and receiving stolen property where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list robbery or first degree residential burglary, the offenses at issue in the present appeal, as eligible under Proposition 47. (Ibid.) In other words, Proposition 47 left the offenses of robbery and first degree residential burglary unchanged, and those offenses are felonies. (§§ 211, 459.) Thus, defendant is simply not statutorily eligible for relief under section 1170.18.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The order denying defendant’s section 1170.18 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
[1] All future statutory references are to the Penal Code unless otherwise stated.
[2] The factual background is taken from the preliminary hearing transcript.
[3] It appears the trial court did not address defendant’s argument as to whether his two prior residential burglary convictions were also eligible for resentencing.
