People v. Sarabia CA6

Filed 7/6/16 P. v. Sarabia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042247 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1106099)

v.

FELIPE SARABIA,

Defendant and Appellant.

In 2011, defendant Felipe Sarabia pleaded guilty to possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) The trial court subsequently placed defendant on formal probation. At a probation revocation hearing in 2015, defendant admitted violating the terms of his probation, but he argued his conviction had been reduced to a misdemeanor as a matter of law by the enactment of Proposition 47. Defendant objected to the requirement that he file a petition to reduce his conviction to a misdemeanor under Proposition 47’s resentencing provisions. (See Pen. Code, § 1170.18.)1 After the trial court overruled defendant’s objection, defendant petitioned for resentencing, whereupon the court granted the petition and reduced his conviction to a misdemeanor. On appeal, defendant contends the trial court erred by requiring him to file a petition to reduce his conviction to a misdemeanor. He argues that Proposition 47

1 Subsequent undesignated statutory references are to the Penal Code.

retroactively reduced his offense to a misdemeanor under In re May (1976) 62 Cal.App.3d 165 (May), and In re Estrada (1965) 63 Cal.2d 740 (Estrada). We will conclude the trial court properly required the filing of a petition before it resentenced defendant because a defendant on probation is “currently serving a sentence” under Proposition 47. Accordingly, we will affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offense2 On April 23, 2011, around 7:27 p.m., police saw defendant parked illegally in a Honda sedan with illegally tinted front windows. Upon contacting defendant, the police observed him exhibiting signs of intoxication. A records check revealed his driver’s license was expired. Police found a bindle of cocaine in defendant’s sock. In a search of the car, police found a plastic bag containing a substance commonly used to cut cocaine. B. Procedural Background The prosecution charged defendant by felony complaint with three counts: Count One—Possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); Count Two— Using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); and Count Three—Driving without a valid license (Veh. Code, § 12500, subd. (a)). In June 2011, defendant pleaded guilty to all three counts. The trial court deferred entry of judgment. In May 2012, after a failed drug test, the court terminated deferred entry of judgment, suspended imposition of sentence, and granted a two-year term of formal probation under Proposition 36. In January 2014, the court terminated Proposition 36 probation and reinstated a three-year term of formal probation. In April 2015, the probation officer, alleging multiple failed drug tests, petitioned for modification of the terms of probation. The trial court held a probation revocation