People v. Graham CA2/8

Filed 6/7/16 P. v. Graham CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B265704

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA052648) v.

RORY GRIFFIN GRAHAM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia L. Ulfig, Judge. Affirmed.

Law Offices of Daniel I. Kapelovitz and Daniel I. Kapelovitz, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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Rory Griffin Graham appeals from a denial of his petition for resentencing under Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18;1 Proposition 47). We affirm. FACTS Graham pled no contest to one count of felony conspiracy to commit second degree commercial burglary on September 22, 2004. (§§ 182, 459.) He was sentenced to 134 days in Santa Barbara County Jail and granted three years supervised probation. On May 18, 2015, Graham filed a petition for resentencing pursuant to Proposition 47. (§ 1170.18, subds. (b) & (g).) Graham sought to have his felony sentence recalled and his felony designated a misdemeanor pursuant to section 1170.18, subdivisions (a) through (e). On May 18, 2015, the trial court denied the petition after considering the parties’ arguments regarding whether Proposition 47 applied to conspiracy convictions and after reviewing the police report. It did not address Proposition 47’s application to conspiracy convictions. Instead, it reasoned, “this does not seem . . . to the court this is a casual user that was just going in to steal something, it appears there were drugs involved, there were other items involved, and there was a thought process beyond that of going in and stealing an item because he was hungry. [¶] . . . the court does not feel it falls within the category as designated pursuant to Penal Code section 1170.18(a) through (e).” Graham timely appealed. DISCUSSION Section 1170.18, the statute implementing Proposition 47, reclassifies certain felony theft offenses to misdemeanors—specifically, those set forth in sections 459.5 (shoplifting), 473 (forgery), 476a (insufficient funds), 490.2 (petty theft), 496 (receiving stolen property), and 666 (thefts with prior convictions). (§ 1170.18, subd. (a).) Section 1170.18 also authorizes persons who have been convicted of those enumerated offenses and who have completed their sentences to apply to the trial court “to have the felony