People v. Juergens CA3

Filed 5/24/16 P. v. Juergens CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C079264

Plaintiff and Respondent, (Super. Ct. Nos. 12F8520, 13F189) v.

JUSTIN PAUL JUERGENS,

Defendant and Appellant.

Defendant Justin Paul Juergens appeals from the trial court’s order granting his petition for resentencing pursuant to Penal Code section 1170.18. (Unless otherwise set forth, statutory references that follow are to the Penal Code.) He contends that the imposition of the Government Code section 76104.7 DNA penalty assessment is an ex post facto violation. In a supplemental brief, he contends that the conviction for felony failure to appear (§ 1320, subd. (b)) should have been reduced to a misdemeanor. We shall modify the assessment and affirm the modified judgment.

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FACTS AND PROCEEDINGS

On May 22, 2012, defendant was found in possession of methadone and methamphetamine. On August 3, 2012, defendant, who was charged with felony possession of a controlled substance (Health & Saf. Code, § 11350), failed to appear at a proceeding on the charge. On November 21, 2012, defendant took a hat from a Macy’s store without paying for it. Defendant pleaded guilty to second degree burglary (§ 459) and admitted a strike (§§ 667, subds. (b)-(d), 1170.12) in case No. 12F8520, and pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and felony failure to appear in case No. 13F189. The trial court imposed a stipulated term of eight years eight months in state prison. Defendant subsequently filed a section 1170.18 resentencing petition. The trial court granted the petition as to the possession and burglary charges, reducing those crimes to misdemeanors and resentencing defendant to a six-year state prison term.