People v. May CA3

Filed 5/20/15 P. v. May CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Glenn) ----

THE PEOPLE, C077587

Plaintiff and Respondent, (Super. Ct. Nos. 12NCR09485, CM037057, v. CM039258)

JASON LEE MAY,

Defendant and Appellant.

Defendant Jason Lee May pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a strike allegation (Pen. Code, § 1170.12)1 in case No. 12NCR09485. The trial court sentenced defendant for these crimes as well as two counts of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and an on-bail enhancement (§ 12022.1) in Butte County case

1 Further undesignated statutory references are to the Penal Code.

1

Nos. CM037057 and CM039258, imposing an aggregate term of nine years four months in state prison. Defendant appeals, contending the provisions of Proposition 47, the Safe Neighborhoods and Schools Act, apply retroactively to reduce his convictions for possession of a controlled substance to misdemeanors. We disagree. DISCUSSION The underlying facts of defendant’s crimes are irrelevant to the issue on appeal. It suffices to say that defendant was convicted of felony drug possession for conduct that cannot now be charged as felonious. Proposition 47 requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70. § 3.) It also added section 1170.18, subdivision (a) which provides that a person who is “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” Defendant correctly notes possession of a controlled substance is now a misdemeanor and he apparently does not have a disqualifying prior conviction. (Health & Saf. Code, § 11377, subd. (a).) He argues that pursuant to In re Estrada (1965) 63 Cal.2d 740, the provisions of Proposition 47 operate retroactively to reduce his receiving stolen property conviction to a misdemeanor. Estrada held: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should