People v. King CA2/2

Filed 12/2/15 P. v. King CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B261784

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA088292) v.

JERMAINE KING,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed.

Melissa L. Camacho-Cheung, 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, Assistant Attorney General, Zee Rodriguez and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jermaine King (defendant) appeals from an order denying his petition for resentencing under the provisions of Proposition 47 which reduce some felony theft offenses to misdemeanors. We conclude that defendant’s conviction was not for a qualifying offense, and we affirm the denial of his petition. BACKGROUND In June 2014, defendant was convicted following a plea of nolo contendere to the grand theft violation of Penal Code section 484e, subdivision (d)1 as charged in count 1 of an amended information. In addition defendant admitted he had suffered a prior serious or violent felony conviction pursuant to the “Three Strikes” law (§§ 1170.12, subd. (b), 667, subd. (b)-(j)). As part of the plea agreement the trial court struck the prior conviction allegation, and on July 28, 2014, the court sentenced defendant to three years in prison. Preliminary hearing testimony established that defendant attempted to purchase an iPad with a debit or credit card which had been issued to others. Following the November 2014 passage of Proposition 47, defendant (in pro. per.) filed a petition for recall of his sentence and reduction of his conviction to a misdemeanor under section 1170.18. The trial court found that a violation of section 484e, subdivision (d) did not qualify for recall of sentence under the statute, and denied the petition without a hearing. In January 2015, defendant (represented by counsel) filed a motion for reconsideration, and requested a hearing on the matter. On January 22, 2015, the trial court considered the renewed motion, heard the argument of counsel, and again denied the petition. Defendant filed a timely notice of appeal of the trial court’s order. DISCUSSION Defendant contends that the trial court erred in denying his petition for resentencing under Proposition 47, and that this court should hold, that a conviction under section 484e, subdivision (d) qualifies for resentencing as a misdemeanor.2