People v. Littrell CA5

Filed 5/19/16 P. v. Littrell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069661 Plaintiff and Respondent, (Super. Ct. No. SC066590A) v.

GARY LITTRELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Elizabeth Campbell, 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, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

In 1996, defendant Gary Littrell was convicted of felony possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a)). He was sentenced to 25 years to life pursuant to the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).1 On August 19, 2013, he filed a petition pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (§ 1170.126), to recall his 25-year-to-life sentence. On June 23, 2014, the trial court denied the petition, finding that defendant’s release would result in an unreasonable risk of danger to the public safety and that he was therefore ineligible for resentencing under Proposition 36 (§ 1170.126, subd. (f)). Defendant filed a notice of appeal on June 27, 2014. On appeal, defendant contends Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18), applies retroactively and thus we should vacate his sentence and remand for resentencing to reduce his felony conviction for possession of methamphetamine to a misdemeanor. We disagree and dismiss the appeal. DISCUSSION While defendant’s appeal was pending, on November 4, 2014, voters enacted 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 methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) “Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that