People v. Zepeda CA2/8

Filed 11/24/15 P. v. Zepeda CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B262223

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA098151) v.

RICHARD SANCHEZ ZEPEDA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Jack Hunt, Judge. Reversed and remanded.

Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2012, Richard Sanchez Zepeda pled no contest to one count of second degree commercial burglary. In January 2015, Zepeda petitioned for resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18; Proposition 47).1 The trial court denied the petition on the ground that the statute was prospective only. We reverse the trial court order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND In October 2012, Zepeda pled no contest to one count of second degree commercial burglary (§ 459), a felony. He admitted one prior strike. (§§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d).)2 The charge arose out of an incident in which Zepeda was caught shoplifting items worth a total of $124.94 from a Target store. Zepeda was sentenced to a total prison term of four years. In January 2015, Zepeda filed a petition pursuant to section 1170.18, seeking recall of his sentence and resentencing, pursuant to Proposition 47. The trial court denied the petition, stating: “In this matter, the defendant was charged with second degree burglary. It’s not subject to Prop. 47. As to burglaries, it’s prospective, not retroactive. Denied.” This appeal timely followed. DISCUSSION Zepeda argues, and the People concede, that the trial court erred in denying the petition on the ground that Proposition 47 is not retroactive. Under section 1170.18, subdivision (a), “ ‘A person 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 (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with [enumerated sections, including section 459.5], as those sections have been amended or added by this act.’ The trial court must then determine if the petitioner is eligible for