People v. Vasquez

Filed 5/17/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B264637

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA020208) v.

JOEL BENJAMIN VASQUEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daniel B. Feldstern, Judge. Affirmed. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Appellant Joel Benjamin Vasquez petitioned to have his 1995 felony conviction designated as a misdemeanor pursuant to Proposition 47. He also asked the court to vacate his resulting 16-month sentence. The court granted Vasquez’s petition to redesignate his conviction, but denied his request to vacate the completed sentence. We affirm. Penal Code section 1170.181 allows resentencing only for petitioners currently serving a sentence for a qualifying felony. Because Vasquez was not currently serving the sentence relating to his qualifying conviction, section 1170.18 did not give the trial court jurisdiction to vacate or otherwise change Vasquez’s completed sentence. FACTUAL AND PROCEDURAL BACKGROUND In May 1995, Vasquez was convicted of one count of petty theft with a prior under section 666, a felony. The details of the crime are not included in the record. Vasquez was sentenced to 16 months in state prison. On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which 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.) Proposition 47 also “amended Penal Code section 666, petty theft with prior, and reduced the maximum prison sentence from three years to one year.” (People v. Solis (2016) 245 Cal.App.4th 1099, 1110.) In May 2015, twenty years after his conviction, Vasquez petitioned to have his conviction designated as a misdemeanor pursuant to section 1170.18, subdivision (f). Vasquez also submitted a proposed order that was intended to “demonstrate to the immigration court that [Vasquez’s] 16-month sentence has been vacated as a result of this application under Proposition 47.”