People v. Gorostiza CA5

Filed 2/18/16 P. v. Gorostiza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F069578 Plaintiff and Respondent, (Super. Ct. No. F13901801) v.

ELIAS ROMAN GOROSTIZA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

On January 30, 2014, defendant Elias Roman Gorostiza was convicted by no contest plea of several counts, including two counts of receiving stolen personal property (Pen. Code, § 496, subd. (a);1 counts 4 & 5). On April 23, 2014, the trial court sentenced him to the negotiated five-year sentence, and on June 17, 2014, he filed a timely notice of appeal. On appeal, defendant’s sole contention is that we should remand his case to the trial court with instructions to recall the sentence and to hold a resentencing hearing pursuant to section 1170.18, so his felony convictions for receiving stolen property could be reduced to misdemeanors. Defendant argues that section 1170.18 applies to him retroactively. The People respond that defendant may not seek his remedy here, but must wait for his appeal to become final, and then file a petition with the trial court. We agree and dismiss the appeal. DISCUSSION While defendant’s appeal was pending, on November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Rivera, supra, at p. 1091.) Among the enumerated offenses set forth in Proposition 47 is receiving stolen property. (See § 496, subd. (a).) “Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that