People v. Kelley CA2/3

Filed 12/8/15 P. v. Kelley CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B262563

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA071159) v.

BRIAN ANTHONY KELLEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Michael K. Kellogg, Judge. Affirmed.

Julie Jakubik, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. _____________________

On August 15, 2012, defendant and appellant Brian Anthony Kelley pled no contest to grand theft (Pen. Code, § 487, subd. (a))1 for having stolen merchandise from a Neiman Marcus store in an amount exceeding $950. Following the enactment of Proposition 47, Kelley petitioned to have this conviction redesignated as a misdemeanor. On February 26, 2015, the trial court denied Kelley’s petition because the value of the stolen property exceeded $950. Kelley timely appealed from the order of denial. We appointed counsel to represent Kelley on appeal. After reviewing the record, counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. We directed counsel to send the record on appeal and a copy of the opening brief to Kelley, and notified defendant he had 30 days within which to personally submit any contentions or issues that he wished us to consider. No supplemental brief was filed. We have examined the entire record and determined that, as the trial court ruled, Kelley is not eligible for resentencing under Proposition 47 because he has not shown that the value of the stolen property did not exceed $950. Proposition 47, enacted by voters on November 4, 2014 and effective the following day, reduces certain drug and theft offenses to misdemeanors unless committed by ineligible defendants. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Proposition 47 provides, in pertinent part: “(a) A person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under the act . . . had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.” (§ 1170.18, subd. (a).) Section 490.2, subdivision (a), provides, in pertinent part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed