People v. Sealie CA2/6

Filed 4/26/16 P. v. Sealie CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B262744 (Super. Ct. No. MA062699-01) Plaintiff and Respondent, (Los Angeles County)

v.

DVORE C. SEALIE,

Defendant and Appellant.

Dvore C. Sealie appeals the trial court's order denying a petition to recall her felony second degree burglary sentence and resentence her to a misdemeanor shoplifting sentence, pursuant to Penal Code sections 1170.18 and 459.5 ("Proposition 47").1 We affirm. FACTUAL AND PROCEDURAL HISTORY On April 14, 2014, the Los Angeles County prosecutor charged Sealie with forging a prescription, second degree burglary, and forgery. (Bus. & Prof. Code, § 4324, subd. (a); §§ 459, 460, 470, subd. (d).) Pursuant to a plea agreement, Sealie pleaded nolo contendere to second degree burglary and stipulated that a factual basis supported her plea. On May 15, 2014, the trial court suspended imposition of sentence and placed Sealie on formal probation for three years, with terms and conditions. The court imposed a $300 restitution fine, a $300 probation revocation restitution fine (suspended), a $30

1 All further statutory references are to the Penal Code unless stated otherwise.

court security assessment, and a $40 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.44, 1465.8, subd. (a); Gov. Code, § 70373.) In accordance with the plea agreement, the court dismissed the remaining two counts. (§ 1385, subd. (a).) A factual summary contained in the probation report prepared for Sealie's sentencing indicates that she submitted a forged prescription to a pharmacy. When she returned to the pharmacy to obtain the prescription drug, sheriff's deputies arrested her. The probation report does not describe the nature of the drug she sought. On December 14, 2014, Sealie petitioned the trial court to recall her felony second degree burglary sentence and resentence her to a misdemeanor shoplifting sentence, pursuant to sections 1170.18 and 459.5. The trial court denied the petition, ruling that "the forged prescription is something above and beyond larceny." Sealie appeals and contends that: 1) the trial court erred by denying her resentencing petition, and 2) the ruling denies her equal protection of the law. DISCUSSION I. Sealie argues that her second degree burglary conviction falls within the definition of shoplifting, a misdemeanor offense pursuant to the recently enacted sections 1170.18 and 459.5 of Proposition 47. She asserts that her act of forgery was merely the means by which she attempted the theft of medication. On November 4, 2014, the voters enacted Proposition 47, The Safe Neighborhoods and Schools Act, which became effective the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 was intended to ensure that prison spending is focused on violent and serious offenders, to maximize alternatives for nonserious, nonviolent crimes, and to invest the savings generated thereby into educational, social, and mental health causes. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; People v. Vargas (2016) 243 Cal.App.4th 1416, 1419.) To this end, Proposition 47 reduced most possessory drug offenses and thefts of property valued at $950 or less to straight misdemeanors. It also created a process for persons