People v. Byrd CA3

Filed 3/3/16 P. v. Byrd CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C078403

v. (Super. Ct. No. 62132801)

TIMMY LEE BYRD,

Defendant and Appellant.

Defendant Timmy Lee Byrd pleaded no contest to felony possession of heroin and admitted a prior strike conviction for residential burglary. After the plea but prior to sentencing, Proposition 47, the Safe Neighborhoods and Schools Act, took effect, and defendant filed a motion asking the trial court to sentence him to a misdemeanor. The trial court found defendant ineligible for Proposition 47 relief due to his status as a Penal Code section 290 registrant and sentenced him to two years eight months in prison. Defendant now contends the trial court erred in denying his motion to sentence him for a misdemeanor under Proposition 47 because the disqualifying factor relied upon by the trial court -- defendant’s status as a Penal Code section 290 registrant -- was not pleaded and proved. We conclude the basis for Proposition 47 ineligibility need not be pleaded and proved and the trial court did not err. We will affirm the judgment.

1

BACKGROUND The underlying facts giving rise to the crimes are not relevant to the contentions on appeal. It is sufficient to note that on September 9, 2014, defendant pleaded no contest to possession of heroin (Health & Saf. Code, § 11350, subd. (a))1 and he also admitted a prior strike conviction for residential burglary (Pen. Code, §§ 459, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Proposition 47 was enacted and became effective after defendant’s plea but before sentencing. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “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, at p. 1091.) As amended by Proposition 47, section 11350 now provides that a violation of that section is a misdemeanor, unless the defendant has a prior conviction for a “super strike” offense or for an offense that requires registration as a sex offender under Penal Code section 290, subdivision (c). (Rivera, at p. 1092.) Proposition 47 also enacted Penal Code section 1170.18, which provides a new statutory remedy for a person currently serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense. (Pen. Code, § 1170.18, subd. (a).) Under Penal Code section 1170.18, subdivision (a), a person previously convicted of a felony, which would be a misdemeanor under Proposition 47, may petition the trial court for resentencing in accordance with section 11350 as amended. (Pen. Code, § 1170.18, subd. (a).) “[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.” (People v. Sherow (2015) 239 Cal.App.4th 875, 878.)