People v. Calandrella CA3

Filed 3/23/16 P. v. Calandrella CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C079322

Plaintiff and Respondent, (Super. Ct. No. CM041102)

v.

BRETT ALI CALANDRELLA,

Defendant and Appellant.

Defendant appeals from an order resentencing him pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18),1 contending the trial court abused its discretion by not imposing a “split-sentence” as permitted by section 1170, subdivision (h) and instead imposing a full state prison sentence. The People contend defendant’s failure to obtain a certificate of probable cause bars his claim, and in any

1 Further undesignated statutory references are to the Penal Code.

1

event the trial court acted within its discretion. Defendant’s claim is cognizable, but we find no abuse of discretion by the trial court, and therefore affirm the judgment. PROCEDURAL BACKGROUND On May 14, 2014, defendant resolved several pending criminal cases by pleading no contest to possession of a dirk or dagger (§ 21310) and of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), in exchange for a promise of no immediate state prison, and dismissal of other charges with a Harvey2 waiver; further, this admission meant he had violated an existing grant of probation. With evident reluctance about defendant’s commitment to refrain from drug and alcohol use, on June 11, 2014, the sentencing judge nonetheless honored the plea bargain and placed defendant on probation. Defendant did not appeal from the probation order. (Cf. § 1237, subd. (a).) On March 25, 2015, defendant pleaded no contest to a misdemeanor, resisting a peace officer (§ 148, subd. (a)(1)), which constituted a violation of his extant probation conditions, and a second count was dismissed with a Harvey waiver. On April 22, 2015, the trial court confirmed that defendant was eligible for Proposition 47 sentencing on the cannabis charge and reduced it to a misdemeanor. The court indicated a tentative sentence of three years in state prison, the upper term on the dirk or dagger possession charge, although it recognized that the probation department recommended “county prison with mandatory supervision.” Based on defendant’s criminal record, poor performance on probation, and continued criminality, the court revoked probation. In aggravation, the trial court found defendant had numerous adult convictions (two felonies and six misdemeanors), performed poorly on probation (committing two more crimes), and continued to use intoxicants despite five separate rehabilitation