People v. Morin CA5

California Court of Appeal Apr 28, 2016 No. F069511Unpublished

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Holding. The court held that a defendant seeking resentencing under Proposition 47 must first file a petition in the superior court of conviction rather than seeking relief for the first time on appeal.

Issues

Whether a defendant may seek resentencing under Penal Code section 1170.18 for the first time on appeal.
Whether Proposition 47 requires a defendant to file a petition in the trial court to obtain a reduction of a felony conviction to a misdemeanor.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“The People respond that defendant may not seek this remedy here, but must instead file a petition with the trial court. We agree and dismiss the appeal.”

“We conclude defendant must petition the trial court, utilizing the procedures specified in section 1170.18.”

“The appeal is dismissed without prejudice to defendant’s filing a petition in the trial court to recall his sentence.”

Filed 4/28/16 P. v. Morin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069511 Plaintiff and Respondent, (Super. Ct. Nos. F12904327, v. F12905997, F13900846, F13904545, F13908676) GREG CIPRANO MORIN,

Defendant and Appellant. OPINION

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Poochigian, J.

On February 20, 2014, defendant Greg Ciprano Morin was convicted by no contest plea of various offenses in several cases, including two felony counts of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count in case No. F12905997 and the other in case No. F13908676.1 His notice of appeal was received by the superior court on June 6, 2014. On appeal, defendant’s sole contention is that we should remand this matter to the trial court with instructions to recall the sentence and to hold a resentencing hearing pursuant to Penal Code section 1170.18,2 so the two felony convictions for possession of methamphetamine could be reduced to misdemeanors. Defendant argues that section 1170.18 applies to him retroactively. The People respond that defendant may not seek this remedy here, but must instead file a petition with the trial court. We agree and dismiss the appeal. DISCUSSION While defendant’s appeal was pending, on November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.) Among the enumerated offenses set forth in Proposition 47 is possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)

People v. Morin CA5

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