People v. Marshall CA1/1

Filed 2/4/16 P. v. Marshall CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A145954 v. SERIA JEAN MARSHALL, (Sonoma County Super. Ct. No. SCR19472) Defendant and Appellant.

INTRODUCTION This is an appeal from a final judgment after an order denying appellant’s resentencing motion under Proposition 47 (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)), now codified as Penal Code section 1170.18.1 Counsel for appellant has conducted a review of the record in this matter and concluded the appeal is properly presented pursuant to People v. Wende (1979) 25 Cal.3d 436. She has advised appellant of this decision and advised her client she may file a supplemental brief on the matter, raising any issues appellant believes are appropriate. We will conduct our review of the record pursuant to the Wende process. This appeal is proper under section 1237, subdivision (b). An order denying appellant’s Proposition 47 petition substantially affects her rights. (See § 1237, subd. (b).)

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

STATEMENT OF THE CASE After being found guilty of one felony count of arson of an inhabited dwelling pursuant to section 451, subdivision (b), appellant is currently serving a state prison sentence of 10 years. She admitted a prior strike in a 1993 conviction for first degree burglary. (§§ 459; 1170.12, subd. (c)(1); 1192.7, subd. (c)(18).) The trial court imposed the middle term of five years for the arson conviction, and then doubled the term based on the prior strike conviction. On June 11, 2015, appellant filed a petition for resentencing pursuant to section 1170.18, subdivision (a). She desired a reclassification of her 1993 first degree burglary conviction to a misdemeanor. The trial court denied the petition, finding she was not eligible for a reclassification because no relief is permitted under the statute for a prior first degree burglary conviction. On August 6, 2015, appellant filed this notice of appeal challenging this order of the trial court. STATEMENT OF THE FACTS In this appeal we are simply focusing on the fact appellant sustained a prior conviction for first degree burglary in 1993. There is no need to discuss the arson conviction in the case. On January 27, 1992, at 6:35 p.m., sheriff’s deputies in Sonoma County were called to a home at 6255 Carriage Lane in response to an alert that a burglary was in progress. When the deputies arrived at the front of the home, they met a witness named Fortsch. Fortsch advised the officers he was taking care of his neighbor’s home while they were on vacation. As Fortsch was checking the residence, he observed items of food on the hallway floor. He also noted the window above the kitchen sink was open. Neither of these observations had been noted by the neighbor before this instance. As Fortsch looked inside the home, he saw the bedroom door was open and human legs were dangling from the bed. He then called the sheriff.