People v. Galbraith CA3

Filed 10/23/15 P. v. Galbraith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C078051

Plaintiff and Appellant, (Super. Ct. No. 09SCR05588)

v.

BILLY JOE GALBRAITH III,

Defendant and Respondent.

On September 10, 2009, defendant Billy Joe Galbraith III pled guilty to receiving stolen property (Pen. Code,1 § 496) and admitted violating probation in two other cases. On January 22, 2010, the trial court suspended imposition of sentence and granted defendant three years of formal probation subject to specified terms and conditions,

1 Undesignated statutory references are to the Penal Code.

1

including that defendant serve 150 days in county jail minus credit for 129 days of presentence custody served. On November 21, 2014, the trial court held a hearing, sua sponte, to reevaluate defendant’s sentence in light of Proposition 47. (§ 1170.18.) At that hearing, the court determined that it did not need to proceed under Proposition 47 because at a prior hearing the court had terminated defendant’s probation as successful pursuant to section 1203.3; reduced the section 496 charge to a misdemeanor pursuant to section 17, subdivision (b); and set aside defendant’s guilty plea, entered a plea of not guilty, and dismissed the complaint pursuant to section 1203.4. Over the People’s objection of lack of notice, the court issued a written order to that effect. The People appeal from the court’s November 21, 2014, order. The People contend the order violated their due process rights because they were not given proper notice or an opportunity to be heard regarding the reduction or dismissal of the charges against defendant as required by sections 1203.3 and 1203.4. On the record before us, we agree and will reverse the court’s order. PROCEDURAL HISTORY2 At the November 21, 2014, hearing to reevaluate defendant’s sentence in light of Proposition 47, the following colloquy took place: “THE COURT: Galbraith, Billy Galbraith. [¶] I put this on calendar because of Prop. 47, but I don’t think it’s applicable in this case, because if you remember, I made a ruling on this case under [sections] 1203.3 and [1203].4 and 17(b) -- “[DEFENSE COUNSEL]: Both. “THE COURT: -- previously. But I just wanted to put it back to see if there’s any disagreement for me to keep that same ruling and not go through the provisions of Prop.