People v. Martinez CA6

Filed 12/18/15 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041404 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1367761)

v.

PAUL JIMMY MARTINEZ,

Defendant and Appellant.

Defendant Paul Jimmy Martinez pleaded guilty to possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a)) and admitted a prior 1 strike conviction allegation (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and five prison prior allegations (§ 667.5, subd. (b)). The court found a second prior strike allegation true, but it then struck both prior strike conviction findings. In August 2014, the court suspended imposition of sentence, placed defendant on felony probation for five years, and ordered defendant to pay a $110 per month probation supervision fee. On appeal, defendant contends that we must deem his possession conviction to be a misdemeanor due to the November 2014 enactment of Proposition 47. He also challenges the probation supervision fee on the ground that he lacked the financial ability

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

to pay it. We conclude that defendant may not obtain the relief contemplated by Proposition 47 without filing a petition in the superior court seeking that relief. We also find that he has forfeited his challenge to the court’s imposition of the probation supervision fee. We therefore affirm the probation order.

I. Background In August 2013, defendant was stopped by the police for riding his bicycle without a rear-facing red light. He admitted that he had “dope” in his pocket, and 0.29 grams of methamphetamine was found in his pocket. Defendant was charged by information with felony possession of methamphetamine. The information also alleged that he had suffered prior strike convictions for robbery and residential burglary and had served prison terms for five prior felony convictions. In February 2014, he entered an unconditional plea of guilty to the possession count and admitted the five prison priors and one of the strike priors. The other strike prior allegation was tried to the court, which found it true. Defendant asked the court to reduce the possession count to a misdemeanor under section 17, subdivision (b) and strike the strike prior findings. The court struck the strike priors but did not reduce the possession count to a misdemeanor. In addition to his five prior felony convictions, defendant had suffered 35 prior misdemeanor convictions. In August 2014, the court suspended imposition of sentence and granted defendant probation for five years conditioned on his serving a year in jail, completing a residential substance abuse treatment program, and obtaining “gainful employment.” He was awarded 300 days of credit against his jail term and permitted to serve the remaining time in a residential treatment program if the drug court judge found that appropriate. The court ordered “a probation supervision fee of $110 per month,” and it ordered defendant “to report to the Department of Revenue within 30 days for the completion of a payment