People v. Vickers CA3

Filed 12/17/15 P. v. Vickers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C078995

Plaintiff and Respondent, (Super. Ct. No. 13F01860)

v.

CLEVELAND VICKERS,

Defendant and Appellant.

Defendant Cleveland Vickers pleaded no contest to second degree burglary and admitted an enhancement allegation that he personally used a firearm. At sentencing, the trial court imposed the stipulated state prison term of four years four months. The trial court subsequently denied defendant’s petition for recall and resentencing under Penal Code section 1170.18,1 concluding that his burglary conviction was not eligible for resentencing. Defendant now contends (1) the trial court erred in denying his petition for resentencing, and (2) it is reasonably probable that a proper application of section 1170.18 will result in a reduction of his conviction to a misdemeanor.

1 Undesignated statutory references are to the Penal Code.

1

We agree that the trial court should not have found defendant’s burglary conviction ineligible for resentencing. We will reverse that order and remand for further proceedings on the petition. BACKGROUND Defendant entered a Sacramento Wal-Mart on March 5, 2013, picked up laundry detergent and toilet paper from the store, then went to the customer service desk and returned the items for cash, using a receipt from a prior transaction. The items were worth $9.15. A Wal-Mart security officer met defendant and his companion as they exited the store. Defendant’s companion surrendered to security, but defendant pulled a semi- automatic handgun from his waistband, held it at his side, and told the security officer to back off. Defendant pleaded no contest to second degree burglary (§ 459) and admitted an enhancement allegation that he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced defendant to a stipulated state prison term of four years four months. Defendant subsequently filed a petition for recall and resentencing. (§ 1170.18.) He argued that under Proposition 47, his second degree burglary conviction should now be reduced to a misdemeanor shoplifting conviction. (§ 459.5.) The People opposed the petition, arguing that resentencing would be inconsistent with the intent of Proposition 47. The People noted that Proposition 47 converts felonies to misdemeanors for nonserious, nonviolent crimes; but here, defendant committed his crime while armed with a firearm. The People argued this is not a simple, nonviolent petty theft case, and defendant is not entitled to resentencing. The trial court determined that defendant is ineligible for resentencing and denied his petition.