People v. Mueck CA3

Filed 10/5/15 P. v. Mueck CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C076875

v. (Super. Ct. Nos. 09F8785, 10F3000, 12F4988) CARLA LYNN MUECK,

Defendant and Appellant.

The trial court sentenced defendant Carla Lynn Mueck to an aggregate state prison term of five years four months for various violations, including two felony violations for possession of a controlled substance.

1

After sentence was imposed but before the judgment was final, the voters enacted Proposition 47, the “Safe Neighborhoods and Schools Act.” That legislation reduced the penalties for certain drug offenses to misdemeanors in the absence of prior convictions. It also enacted Penal Code section 1170.18,1 which allows a “person currently serving a sentence for a conviction” of a felony offense specified in Proposition 47 to file a recall petition in the trial court to request that the offense be resentenced as a misdemeanor. Defendant now asks that, with regard to her two felony convictions for possession of a controlled substance, we reduce her convictions to misdemeanors and resentence her. She claims the matter is governed by the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada).2 In People v. Noyan (2014) 232 Cal.App.4th 657, this court rejected a similar contention. (Id. at p. 672 [filed on December 17, 2014, and modified on January 12, 2015, to add, among other things, a part III].) Like in Noyan, we conclude that defendant’s remedy is to file a petition in the trial court for recall of sentence and resentencing pursuant to section 1170.18. We will affirm the judgment. BACKGROUND In case No. 09F8785, defendant pleaded no contest in December 2009 to possession of marijuana for sale (Health & Saf. Code, § 11359 -- count 1). The trial court suspended imposition of sentence and placed defendant on probation for three years. In case No. 10F3000, defendant pleaded no contest in June 2010 to child endangerment (§ 273a, subd. (a) -- count 1) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) -- count 2). Defendant also admitted violating