People v. Fontaine CA2/3

Filed 5/17/16 P. v. Fontaine CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B262961

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA059318) v.

MARCOS RICHARD FONTAINE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lauren Weis Birnstein, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent. _________________________ Appellant Marcos Richard Fontaine appeals from an order denying his petition for a recall of sentence after the trial court sentenced him following his conviction by jury for first degree burglary. (Pen. Code, §§ 459, 460, subd. (a), 1170.18, subd. (a).) We affirm the order denying appellant’s petition for a recall of sentence.

FACTUAL and PROCEDURAL SUMMARY On January 4, 2007, an amended information alleged that on or about July 27, 2004, appellant committed first degree burglary. The amended information also alleged a person was present in the residence for purposes of Penal Code section 667.5, subdivision (c)(21), making the offense a violent felony. The amended information further alleged, inter alia, appellant suffered eight prior felony convictions for purposes of the Three Strikes law, two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), and six prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The February 2, 2007 minute order reflects that, on that date, a jury convicted appellant of first degree burglary, and found true the Penal Code section 667.5, subdivision (b) allegation.1 On January 11, 2015, appellant served on the Los Angeles County District Attorney (DA) (and at some point lodged with the trial court), a petition for a recall of sentence pursuant to Penal Code section 1170.18, subdivision (a)2 (hereafter, petition). The petition alleged appellant was currently serving a sentence in the “Correctional Training Facility” for a violation of Penal Code section 459, and that the amount in question was not more than $950. On January 27, 2015, the DA responded, stating appellant was ineligible for the relief requested because appellant had been convicted of residential burglary.