People v. Vance CA3

Filed 4/28/16 P. v. Vance CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C076272

v. (Super. Ct. No. CRF130047)

WILLIE JERAMIAH VANCE,

Defendant and Appellant.

A jury convicted defendant Willie Jeramiah Vance of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, former § 11364.1, Stats. 2011, ch. 738, § 11). The trial court sustained a prior strike allegation but granted defendant’s motion to strike the allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced defendant to serve three years in state prison. On appeal, defendant contends the case should be remanded to the trial court for resentencing pursuant to Proposition 47. We conclude Proposition 47 applies

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retroactively only through a petition for resentencing under Penal Code section 1170.18. Accordingly, we affirm. DISCUSSION1 Proposition 47 requires “misdemeanors instead of felonies for nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified violent or serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70.) It also added section 1170.18 to the Penal Code, which provides that a person who is “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” Defendant correctly notes possession of cocaine base is now a misdemeanor and he does not have a disqualifying prior conviction. (Health & Saf. Code, § 11350, subd. (a).) He argues that pursuant to In re Estrada (1965) 63 Cal.2d 740 (Estrada), the provisions of Proposition 47 operate retroactively to reduce his conviction to a misdemeanor. Estrada stated: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Estrada, supra, 63 Cal.2d