People v. Ashurst CA6

Filed 3/23/16 P. v. Ashurst CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042261 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS131139)

v.

ROBERT JAMES ASHURST,

Defendant and Appellant.

Defendant Robert James Ashurst appeals from an order denying his petition for recall of sentence and resentencing under Proposition 47.1 We affirm the order.

I. Statement of the Case On January 16, 2014, defendant was convicted of possession of a controlled substance (Health & Saf. Code, § 11350 – count one), possession of a controlled substance while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a) – count two), felony vehicular evasion of a peace officer with willful disregard for the safety of others (Veh. Code, § 2800.2, subd. (a) – count three), and possession of a

1 We need not consider defendant’s contention regarding an error in the minute orders, because the trial court corrected the minute orders in response to defendant’s request.

firearm by a felon (Pen. Code, § 29800, subd. (a)(1)2 – count four). The jury also found that defendant was armed with a firearm in the commission of count three (§ 12022, subd. (a)(1)). On April 10, 2014, the trial court sentenced defendant as a second strike offender and imposed a sentence of 10 years eight months in prison. The trial court imposed: (1) the upper term of four years for possession of a controlled substance while armed (count two) and doubled that term to eight years; and (2) one year and four months each for vehicular evasion (count three) and possession of a firearm by a felon (count four). The trial court stayed the one-year enhancement attached to count three and the upper term of three years for possession of a controlled substance (count one) pursuant to section 654. On May 26, 2014, defendant filed a notice of appeal in case No. H040995. The opinion was filed on February 5, 2016. Meanwhile, on January 20, 2015, defendant filed a petition to have his felony conviction for possession of a controlled substance be designated a misdemeanor pursuant to section 1170.18, subdivision (a). The prosecutor argued that defendant was ineligible for relief, his case was on appeal, and the trial court stayed execution of the sentence for this count. The trial court denied the petition on the ground that it lacked jurisdiction because defendant’s case was pending appeal. Defendant filed a timely notice of appeal.