People v. Davis CA2/6

Filed 12/15/15 P. v. Davis CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B261607 (Super. Ct. No. GA087061) Plaintiff and Respondent, (Los Angeles County)

v.

LAVADA MICHELE DAVIS,

Defendant and Appellant.

In September 2012 Lavada Michele Davis, appellant, pleaded no contest to felony receiving stolen property (Pen. Code, § 496, subd. (a))1 and admitted one prior "strike" conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Appellant was sentenced to prison for four years. After the passage of Proposition 47, appellant petitioned for recall of her felony prison sentence and for resentencing to a misdemeanor pursuant to newly enacted section 1170.18. She appeals from the denial of her petition. We affirm because appellant failed to carry her burden of showing that she had been convicted of an offense that would have been a misdemeanor under Proposition 47.

1 Unless otherwise stated, all statutory references are to the Penal Code.

Proposition 47 "On November 4, 2014, the voters enacted Proposition 47, 'the Safe Neighborhoods and Schools Act' . . . , which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Before the passage of Proposition 47, receiving stolen property was punishable either as a felony or a misdemeanor. Proposition 47 amended section 496, subdivision (a), to make the offense punishable only as a misdemeanor if the value of the stolen property does not exceed $950 and the defendant has not previously been convicted of "specified" felonies. (§ 1170.18 subd. (i). Proposition 47 added section 1170.18 to the Penal Code. This section permits persons who are "currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . [to] petition for a recall of sentence . . . [and] to request resentencing" under Proposition 47. (Id., subd. (a).) If the petitioner satisfies the criteria in subdivision (a), subdivision (b) provides that "the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." Proposition 47 Proceedings in the Trial Court The trial court denied the section 1170.18 petition because police reports established that the value of the stolen property received by appellant exceeded $950. The reports listed the property taken in a burglary and its estimated value. The reports also listed the stolen property recovered from appellant. When appellant pleaded no contest, her counsel stipulated "to a factual basis [for the plea] as reflected in the police report."2 Without the police reports, there is no evidence of the value of the stolen