People v. King CA3

Filed 10/28/15 P. v. King CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C078775

Plaintiff and Respondent, (Super. Ct. No. 99F07845)

v.

DAVID KING,

Defendant and Appellant.

Defendant David King appeals from the trial court’s order denying his petition to have prior felonies redesignated as misdemeanors and to modify his sentence. (Pen. Code, § 1170.18.)1 Defendant, who represents himself on appeal, contends in a supplemental brief2 that the trial court should have granted his motion as to prior

1 Undesignated statutory references are to the Penal Code. 2 We grant the Attorney General’s motion to strike defendant’s opening brief (motion filed June 16, 2015) because the arguments raised in the brief attack defendant’s prior conviction and sentence and are not related to the section 1170.18 petition that is the subject of this appeal.

1

convictions for petty theft with a prior (§ 666) and second degree burglary (§ 459) that supported prior prison term enhancements. We affirm. BACKGROUND3 Defendant was convicted of robbery (§ 211) and burglary (§ 459). (People v. King (Nov. 26, 2002, C037815) [nonpub. opn.].) The trial court “found defendant had four prior convictions -- two for first degree burglary (§§ 459, 460) each of which constituted strikes (§ 667, subds. (b)-(i), § 1170.12) and serious prior felony convictions (§ 667, subd. (a)); one for second degree burglary (§§ 459, 460) and one for theft with a prior related theft conviction (§ 666) for which he served separate prison terms (§ 667.5, subd. (b)).” (King, supra, C037815.) Defendant was sentenced to state prison for 25 years to life plus 12 years. (Ibid.) We modified his conviction to award extra custody credits and affirmed his conviction as modified. (Ibid.) On January 29, 2015, defendant filed his section 1170.18 petition. The trial court subsequently summarily denied the petition without the appointment of counsel, finding that defendant’s current convictions were not subject to modification pursuant to section 1170.18. DISCUSSION Proposition 47 requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also added section 1170.18 to the Penal Code, 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