People v. Lopez

Filed 6/29/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040726 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1235752, C1242237)

v.

JOHN ANTHONY LOPEZ,

Defendant and Appellant.

In this appeal from two cases filed in the Santa Clara County Superior Court, appellant John Anthony Lopez requests that we reverse the judgments and remand the case to the trial court with instructions to hold a hearing pursuant to Penal Code section 1170.18.1 For reasons we shall explain we decline to reverse the judgment. Background On December 6, 2012, the Santa Clara County District Attorney’s Office filed an information in case No. C1242237 charging appellant with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code § 11550, subd. (a)); possession of drug paraphernalia, a misdemeanor (Health & Saf. Code former § 11364.1, Stats. 2011, ch. 738, § 11); and possession of less than 28.5 grams of marijuana, an infraction (Health & Saf. Code § 11357, subd. (b)). Subsequently, on December 12, 2012, the district attorney’s office filed an information in case No. C1235752 in which appellant was charged with felony 1 Originally, counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Subsequently, on January 14, 2015, we granted counsel’s request to file a supplemental brief to address Proposition 47 sentencing.

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); being under the influence of methamphetamine with three prior convictions for the same offense, a misdemeanor (Health & Saf. Code, § 11550, subd. (a) & (b)(1)); and possession of drug paraphernalia, a misdemeanor (Health & Saf. Code, former § 11364.1, Stats. 2011, ch. 738, § 11). In the information, the prosecutor alleged that appellant had suffered a prior conviction for lewd and lascivious acts with a child under 14 years old (Pen. Code, § 288, subd. (b)(1)) 2—a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had suffered a prior prison term within the meaning of section 667.5, subdivision (b). In addition, the information contained an allegation that appellant had served a prison term for possessing a controlled substance. On September 9, 2013, appellant pleaded no contest to all charges and admitted all allegations. On January 8, 2014, after denying appellant’s Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court sentenced appellant to 32 months in prison on case No. C1235752 and imposed a concurrent term of one year in county jail on case No. C1242237.3 Changes to the Penal Code On November 4, 2014, the voters approved Proposition 47, the “Safe Neighborhoods and Schools Act.” The essential parts of Proposition 47 are as follows: it requires (1) a misdemeanor sentence instead of a felony sentence for certain drug possession offenses; (2) a misdemeanor sentence instead of a felony sentence for the crimes of petty theft, receiving stolen property, and forging/writing bad checks, when the amount involved is $950 or less; (3) allows a felony sentence pursuant to section 1170, subdivision (h) for specified crimes if a defendant has a prior conviction listed under