People v. Frias CA6

Filed 2/22/16 P. v. Frias CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041938 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1368415)

v.

FRANCISCO JAVIER FRIAS,

Defendant and Appellant.

Appellant Francisco Javier Frias appeals from an order denying his petition for Proposition 47 resentencing. On appeal, appellant contends that the trial court erred in ruling that he was ineligible for Proposition 47 relief, and he alternatively contends that he received ineffective assistance of counsel at the Proposition 47 hearing. BACKGROUND A felony complaint, filed on October 24, 2013, charged appellant with the following offenses: first degree burglary (Pen. Code, §§ 459/460, subd. (a); count 1); grand theft of personal property of a value over $950 (Pen. Code, §§ 484/487, subd. (a); count 2); and buying, receiving, concealing, or withholding stolen property (Pen. Code, § 496, subd. (a); count 3). The complaint described the property involved in count 2 as “GPS, sunglasses, ipod touch, backpack, bluetooth, binoculars, electronic cables, and a radio,” and it described the property involved in count 3 as “GPS, sunglasses, ipod touch, backpack, bluetooth, binoculars, electronic cables, and a radio.” The complaint alleged a

prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i))/1170.12), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and two prior prison terms (Pen. Code, § 667.5, subds. (a) & (b)). On March 4, 2014, appellant pleaded no contest to count 3, a violation of Penal Code section 496, subdivision (a). Appellant admitted a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i))/1170.12) and one prior prison term (Pen. Code, § 667.5, subd. (b)). The remaining charges and allegations were dismissed. On May 23, 2014, the trial court sentenced appellant to five years in prison. On December 11, 2014, appellant filed a petition for Proposition 47 resentencing. The petition requested recall of appellant’s felony sentence and resentencing as a misdemeanor. The petition contained no facts or evidence regarding the value of the property involved in appellant’s offense. The trial court denied appellant’s resentencing petition on January 12, 2015. Before issuing its ruling, the trial court stated: “In this matter, the value of the stolen property appears to be well in excess of $950. The items in the subject count, Count Three, are listed identically to those in the count that was dismissed as part of the plea bargain, Count Two, which is in excess of $950.” After this comment, the trial court asked, “Does either party have anything further?” The prosecutor and appellant’s attorney both said no. The trial court then stated: “The petition is denied. [Appellant] is ineligible.” DISCUSSION Appellant contends that we must reverse the order denying resentencing because the trial court erred in finding him ineligible for Proposition 47 relief. He alternatively asserts that we must reverse because he received ineffective assistance of counsel. As set forth below, we must affirm.