People v. Gallegos CA5

California Court of Appeal Apr 29, 2016 No. F069355Unpublished

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

Issues

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

Disposition. Dismissed

Quotations verified verbatim against the opinion

“The plain language of section 1170.18, however, requires a defendant to first file “a petition to recall (if currently serving the sentence) or an application to redesignate (if the sentence is completed) in the superior court of conviction.””

“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 4/29/16 P. v. Gallegos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069355 Plaintiff and Respondent, (Super. Ct. Nos. MCR043416 & v. MCR043662)

PAUL DAVID GALLEGOS II, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Francine R. Tone, 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 Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Franson, J. and Peña, J.

On May 18, 2012, defendant Paul David Gallegos II was convicted by guilty plea of felony possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in case No. MCR043416 for a crime he committed in 2011. The trial court deferred entry of judgment pending defendant’s successful completion of a program, which he ultimately failed to complete. On September 18, 2012, defendant was convicted by guilty plea of burglary (Pen. Code, § 459)1 in case No. MCR043662. On May 2, 2014, the trial court sentenced him to four years for the burglary conviction and eight months (one-third the middle term) for the possession of a controlled substance conviction. Defendant filed a notice of appeal on May 7, 2014. On appeal, defendant’s sole contention is that section 1170.18 applies to him retroactively and therefore we should reduce his felony conviction for possession of a controlled substance to a misdemeanor. 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 a controlled substance. (See Health & Saf. Code, § 11350, subd. (a).)

People v. Gallegos CA5

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