People v. Delgado CA2/2

Filed 1/20/16 P. v. Delgado CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262394

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA064484) v.

ERIK DELGADO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Christopher G. Estes, Judge. Affirmed.

Rich Pfeiffer, 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, Mary Sanchez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Erik Delgado (defendant) appeals from an order after judgment denying his petition to recall his sentence and for resentencing his narcotics conviction as a misdemeanor. He contends that the trial court abused its discretion in finding that he was unsuitable for Proposition 47 relief. Finding no abuse of discretion, we affirm the order. BACKGROUND In October 2014, defendant was charged with the possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). The felony complaint alleged that defendant had two prior serious or violent felony convictions or juvenile adjudications within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)),1 and that he had served one prior prison term within the meaning of section 667.5, subdivision (b). On November 4, 2014, after defendant entered a no contest plea to the charge and admitted one of the two prior strike allegations, the trial court sentenced him to a term of 32 months in prison. Defendant filed a petition for resentencing under Proposition 47, which the prosecution opposed. On March 2, 2015, after two days of hearing, the trial court denied defendant’s petition upon finding defendant unsuitable for resentencing. Defendant filed a timely notice of appeal from the order. DISCUSSION Defendant contends that the trial court abused its discretion in finding that he was unsuitable for resentencing under Proposition 47. Proposition 47 amended Health and Safety Code section 11377 to reduce possession of methamphetamine and other similar offenses to misdemeanors, unless committed by a defendant ineligible for the relief. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Proposition 47 enacted section 1170.18, which provides in subdivisions (a) and (b) that a person currently serving a sentence for a such a felony may petition for a recall of his sentence and request resentencing to a misdemeanor, “unless