People v. Strahorn CA3

Filed 3/11/16 P. v. Strahorn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Calaveras) ----

THE PEOPLE,

Plaintiff and Respondent, C078454

v. (Super. Ct. No. 14F6382)

DAVID NICHOLAS STRAHORN,

Defendant and Appellant.

Defendant David Nicholas Strahorn pleaded no contest to one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count of resisting a peace officer (Pen. Code, § 148, subd. (a)).1 The trial court sentenced defendant to two years in county jail and also sentenced him to a consecutive 180 days in county jail for violating the conditions of his probation in another case. In November 2014, defendant filed a petition for resentencing under section 1170.18, which was enacted by the voters in 2014 through the passage of Proposition 47. Defendant asked that his conviction for possession of methamphetamine be resentenced

1 Undesignated statutory references are to the Penal Code.

1

as a misdemeanor. The trial court denied the petition, finding that defendant posed an unreasonable risk of danger to public safety. Defendant now contends the trial court abused its discretion in denying his petition for resentencing. Finding no abuse of discretion, we affirm the trial court’s order. DISCUSSION We need not recite the facts giving rise to the instant offenses because they are not relevant to the issue on appeal. “On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act . . . , which went into effect the next day. [Citation.]” (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, Health and Safety Code section 11377 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 section 290, subdivision (c). (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Prior to the passage of Proposition 47, possession of a controlled substance in violation of Health and Safety Code section 11377 was a wobbler, i.e., a crime that can be punished as either a felony or misdemeanor. (People v. Lynall, supra, 233 Cal.App.4th at p. 1108.) Proposition 47 also created 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. (§ 1170.18, subd. (a).) Under section 1170.18, 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 Health and Safety Code section 11377 as amended. (§ 1170.18, subd. (a).)