People v. Hamel CA3

Filed 3/8/16 P. v. Hamel CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Trinity) ----

THE PEOPLE,

Plaintiff and Respondent, C078941

v. (Super. Ct. No. 12F226)

DERRICK JUSTIN HAMEL,

Defendant and Appellant.

Defendant Derrick Justin Hamel appeals from the trial court’s order denying his petition for resentencing pursuant to Proposition 47 (Pen. Code, § 1170.18).1 He contends the trial court erred in finding that his prior first degree robbery conviction renders him ineligible for resentencing. We agree that defendant’s prior robbery conviction does not render him ineligible for resentencing. But that does not end the trial court’s inquiry. Accordingly, we will reverse and remand the matter for further proceedings on defendant’s petition.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND Portions of the background are taken from the record in defendant’s prior appeal. (People v. Hamel (Dism. Feb. 3, 2015, C077609).) Defendant unlawfully took a firearm, a .270-caliber bolt-action Winchester rifle, belonging to Thomas Loop. He entered a negotiated plea of no contest to one count of grand theft of a firearm (§ 487, subd. (d)(2) - - count four) and admitted the allegation of a prior strike conviction in exchange for a midterm sentence of two years, doubled for the prior strike conviction, and dismissal of the remaining charges and allegations. Defendant subsequently filed a Romero2 motion to strike his prior strike conviction pursuant to section 1385. The trial court denied the Romero motion, denied probation, and sentenced defendant consistent with the plea agreement. The trial court awarded 154 days of presentence credit and imposed various fines, fees and assessments. Defendant appealed (C077609) but later dismissed the appeal. Defendant then filed a petition for resentencing pursuant Proposition 47 (§ 1170.18), asking the trial court to reduce his felony sentence for grand theft of a firearm to a misdemeanor sentence. During a brief hearing on defendant’s petition, the prosecutor informed the trial court that defendant “has a prior robbery conviction, which would be a disqualifier.” The trial court responded, “Then I will take the prior record into consideration and just deny this from the bench.” DISCUSSION Defendant contends the trial court erred in denying his petition for resentencing because he has no disqualifying prior conviction within the meaning of section 1170.18. The People agree that defendant’s prior robbery conviction does not disqualify him for