California Court of Appeal Oct 29, 2015 No. E062985Unpublished
Filed 10/29/15 P. v. Milliron CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062985
v. (Super.Ct.No. SWF1301080)
ERRICH AARON MILLIRON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Arlene Sevidal and Minh U.
Le, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Errich Aaron Milliron filed a petition for resentencing
pursuant to Penal Code section 1170.18 which the court denied. On appeal, defendant
contends the matter must be remanded to the superior court because that court failed to
consider that defendant’s conviction for transportation of methamphetamine (Health &
On August 12, 2013, defendant pled guilty to the count 1 offense and admitted two
prior prison terms and the prior strike conviction. In return, the count 2 charge and the
remaining allegations were dismissed. It was stipulated defendant would receive a
determinate sentence of six years, consisting of the low term of two years on the count 1
1 On June 26, 2015, pursuant to defendant’s request, we took judicial notice of the record in case No. E061734, defendant’s direct appeal of his conviction. We take a portion of our procedural history from that record.
2
offense, doubled pursuant to the strike prior, and two consecutive one-year terms on the
prior prison term allegations. The court sentenced defendant pursuant to the terms of his
plea agreement.
On December 3, 2013, defendant filed an appeal from his conviction. On
November 10, 2014, we dismissed the appeal pursuant to defendant’s filing of an
abandonment of the appeal.
On December 10, 2014, defendant filed a petition for resentencing pursuant to
Penal Code section 1170.18 seeking reduction of his conviction from a felony to a
misdemeanor. The People responded that defendant was not entitled to the relief
requested because his conviction was for a nonqualifying felony. On January 27, 2015,
the court denied defendant’s petition finding his “criminal history makes [him] ineligible
for resentencing because he was convicted of [Health and Safety Code section] 11379[,
subdivision] (a) . . . not a qualifying felony.”
II. DISCUSSION
Defendant contends that because Health and Safety Code section 11379,
subdivision (a), was amended effective January 2015 to require an additional element that
the controlled substance was transported for sale, the matter must be remanded to the
court for a factual determination of whether the methamphetamine defendant was
convicted of transporting was for sale or personal possession. If the latter, defendant
avers his conviction for transportation would not stand under current law and defendant
would effectively stand convicted only of simple possession (Health & Saf. Code,
3
§ 11377), an offense which would qualify him for relief under Penal Code section
1170.18. We disagree.
On November 4, 2014, “the voters approved Proposition 47. [Citation.] The
initiative added . . . [section] 1170.18 to the Penal Code . . . and amended Health and
Safety Code sections 11350, 11357 and 11377. [Citation.]” (People v. Shabazz (2015)