People v. Smith CA2/4

Filed 3/24/16 P. v. Smith CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B265037 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. A704421-01)

v.

JOSEPH EARL SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. David B. Gelfound, Judge. Affirmed. Joseph Earl Smith, in pro. per.; Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

In 1986, appellant Joseph Earl Smith pled guilty to one count of robbery (Pen. Code, § 211).1 On March 26, 2015, he filed a petition asking that his felony sentence be redesignated a misdemeanor under section 1170.18.2 On May 29, 2015, the court denied the petition, stating in its order that due to the nature of appellant’s offense, he “d[id] not qualify for the requested relief.” Appellant filed a notice of appeal.

DISCUSSION After review of the record, appellant’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On December 14, 2015, we sent a letter to appellant’s last known address, advising him that he had 30 days within which to submit by brief or letter any contentions or argument he wished this court to consider. We received a response in which appellant contended robbery is one of the offenses eligible for resentencing and redesignation under Proposition 47. This court has examined the entire record, and is satisfied that no arguable issues exist. Section 1170.18 “makes certain drug- and theft-related offenses misdemeanors” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091), and “provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. [Citation.]” (T.W. v. Superior Court, supra, 236 Cal.App.4th at p. 650, fn. 2.) It also permits “persons who have completed felony