People v. Brafford CA2/4

Filed 6/20/16 P. v. Brafford CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B264894

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA094044) v.

JUSTIN BRAFFORD,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Affirmed. Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Justin Brafford appeals from the order denying his petition for resentencing under Proposition 47. (Pen. Code, § 1170.18.)1 We affirm because appellant has not met his burden of showing that he is eligible for resentencing under the voter initiative.

FACTUAL AND PROCEDURAL SUMMARY The preliminary hearing record establishes that, in November 2012, appellant went into a Long Beach BMW dealership, pretending to pick up a motorcycle for a friend. He handed the manager a key for a BMW F800 motorcycle. Attached to the key was “a new vehicle stock tag, . . . identifying the year, make, model, and VIN number.” The key had been missing from the dealership for some time. Unbeknownst to appellant, the motorcycle already had been sold. The manager grew suspicious, invited appellant to sit down at the desk, and asked him the name of the person for whom he was picking up the motorcycle. Appellant gave a name, but became increasingly nervous. Eventually, he grabbed a key for a demonstration motorcycle from the desk and left. The key was recovered after he was apprehended. Appellant was charged with felony second degree commercial burglary. (§ 459.) Two prior convictions were alleged under section 667.5, subdivision (b), one of which qualified as a prior strike conviction under the Three Strikes law. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) Based on a negotiated settlement, appellant pled no contest to the second degree commercial burglary charge, the prior strike was stricken, and the court imposed a three-year prison term. In 2015, appellant filed a form petition for resentencing under Proposition 47, on which he checked a box, stating that the amount in question was not more than $950. The court summarily denied the petition because the amount exceeded $950. Appellant filed a timely notice of appeal and a request for a certificate of probable cause, in which he claimed that the property he stole was a “KEY.”