People v. Gonzales CA4/3

Filed 12/2/15 P. v. Gonzales CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G051278

v. (Super. Ct. No. 08CF1267)

GABRIEL ANTHONY GONZALES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with instructions. Cynthia Grimm, 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, Senior Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. * * *

This is an appeal from a petition to redesignate defendant’s prior felony conviction to a misdemeanor pursuant to Proposition 47. In 2008 defendant pleaded guilty to one felony count of second degree vehicle burglary (Pen. Code, §§ 459, 460, 1 subd. (b); count 1) and one felony count of receiving stolen property (§ 496, subd. (a); count 2). In June 2008, defendant was sentenced to four years in state prison, consisting of the midterm on count 1, doubled to reflect a prior strike. The sentence on count 2 was suspended pursuant to section 654. In December 2014, defendant petitioned to redesignate his felony convictions to misdemeanors pursuant to section 1170.18, subdivision (f), which provides, “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” Subdivision (g) provides, “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor.” The People opposed the petition with respect to count 1 on the ground that a vehicle burglary did not qualify for relief under section 1170.18. The People did not oppose the petition with regard to count 2, stating that defendant was entitled to the relief requested because he had “completed his . . . sentence for this . . . felony conviction and is entitled to have the felony conviction[] designated as a misdemeanor pursuant to . . . Section 1170.18, subd. (f).” (Italics added.) Nonetheless, the court denied the petition in its entirety, stating, “Counts 1 and 2 in the petitions are denied. They don’t fall within Prop 47 based on the court’s reading, so resentencing is moot.”