People v. Yarberry CA2/6

Filed 6/7/16 P. v. Yarberry CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B265663 (Super. Ct. No. KA104323) Plaintiff and Respondent, (Los Angeles County)

v.

JERRY LYNN YARBERRY,

Defendant and Appellant.

Jerry Lynn Yarberry appeals the trial court's order denying his petition for 1 recall of sentence and request for resentencing under Penal Code section 1170.18, which was enacted as part of Proposition 47. Appellant contends the court erred in refusing to strike a one-year prior prison term enhancement (§ 667.5, subd. (b) [§ 667.5(b)]) that is predicated upon a conviction subsequently designated as a misdemeanor. We affirm. FACTS AND PROCEDURAL HISTORY In April 2014, appellant pled no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and admitted serving three prior prison terms (§ 667.5(b)). One of the priors is based on a 2003 conviction of petty theft

1 All statutory references are to the Penal Code unless otherwise stated.

with prior convictions. (§ 666.) The trial court sentenced appellant to six years in state prison, consisting of the midterm of three years plus three one-year enhancements under section 667.5(b). Section 1170.18 went into effect in November 2014. In March 2015, appellant applied under subdivision (f) of section 1170.18 to have his prior section 666 conviction designated as a misdemeanor. After the court granted the application and designated the conviction as a misdemeanor, appellant petitioned for resentencing in the instant case. He purported to bring the petition under sections 1170.18 and 667.5(b), and asserted that the subject section 667.5(b) enhancement had to be stricken now that the underlying conviction had been designated as a misdemeanor. The court denied the petition, reasoning in part that "the fact that the underlying offense resulting in a prison prior is now a misdemeanor under Proposition 47 does not change the validity of the enhancement because Penal Code section 667.5(b) accounts for recidivist conduct." DISCUSSION Appellant contends the trial court erred in declining to strike the subject section 667.5(b) enhancement because the prior conviction upon which it is based is now designated as a misdemeanor. We disagree. Proposition 47 reclassified certain drug and theft-related felony and "wobbler" offenses as misdemeanors. It also created remedies for persons previously convicted of one of the reclassified offenses. The first remedy applies to "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense." (§ 1170.18, subd. (a).) Such a person "may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with [s]ections 11350, 11357, or 11377 of the Health and Safety Code, . . . as those sections have been amended or added by this act." (Ibid.) The second remedy