People v. Martinez CA2/8

Filed 4/8/16 P. v. Martinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B262733

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA089993) v.

ABEL RUBEN MARTINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed.

Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

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Abel Martinez filed a petition for resentencing under Proposition 47, the Safe Neighborhood and Schools Act (hereafter Proposition 47). The trial court denied the petition. We affirm. FACTS In 2011, Martinez pled nolo contendere to a felony grand theft auto in violation of Penal Code section 487, subdivision (d)(1).1 Martinez also admitted a prior strike conviction. The trial court sentenced Martinez to a total aggregate term of four years in state prison as follows: a two-year mid-term, doubled for the prior strike. On November 4, 2014, the voters of California passed Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 reclassified certain felony offenses so that they are now misdemeanor offenses. Further, Proposition 47 added certain misdemeanor offenses to the Penal Code where, previously, the criminal conduct could have been charged as a felony. As relevant to Martinez, Proposition 47 added section 490.2 to the Penal Code. Section 490.2, subdivision (a), provides in pertinent part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the . . . personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .” Prior to Proposition 47, section 487, subdivision (d)(1), provided that a felony grand theft occurred when the property taken was an automobile, regardless of its actual value. After the approval of Proposition 47, section 487, subdivision (d)(1), still reads the same, but its definition of the crime of grand theft plainly is subject to the modification effected by section 490.2, subdivision (a). In addition to the reclassification of certain crimes, Proposition 47 enacted a new sentencing provision –– section 1170.18 –– under which a person who is serving a felony sentence for an offense that is today a misdemeanor may file a petition to be resentenced for the misdemeanor offense.