People v. Aviles CA2/2

Filed 1/12/16 P. v. Aviles CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262123

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA040528) v.

ARMANDO AVILES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. David W. Stuart, Judge. Affirmed.

Lisa M. Sciandra, 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, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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This is a second strike case under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).1 In the operative information, defendant Armando Aviles was charged with attempted second degree vehicle burglary (§§ 664/459), a felony, in that he attempted to enter the victim’s locked Nissan Sentra with “the intent to commit larceny and any felony,” and it was alleged he had suffered a prior robbery conviction (§ 211) that qualified as a strike. Defendant asserts he was sentenced to prison for a four-year term and has completed service of this sentence. He filed a document entitled “Defendant’s Felony Is Now a Misdemeanor” in which he represented he “has no disqualifying prior convictions and is not a sex offender registrant” and requested his felony conviction for attempted second degree vehicle burglary be “treated as a misdemeanor” pursuant to Proposition 47.2 After construing the document to be a petition, the trial court denied the petition. Defendant appealed. We begin by pointing out “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time