People v. Rocheleau CA5

Filed 7/27/16 P. v. Rocheleau CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F071948 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 1463797) v.

ROBERT ANTHONY ROCHELEAU, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Eric L. Christoffersen, Deputy Attorney General for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Smith, J.

Defendant Robert Anthony Rocheleau, Jr., contends his prior felony conviction, reduced to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18),1 may no longer function as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and thus we should vacate the doubling of his sentence. We affirm. PROCEDURAL SUMMARY On April 2, 2015, defendant pled no contest to misuse of personal identification (§ 530.5, subd. (a)) and admitted a prior strike conviction in 2007 for grand theft (§ 487, subd. (c)(2)) within the meaning of the Three Strikes law. After the plea, defendant filed a petition for resentencing pursuant to Proposition 47. The trial court granted the petition and reduced the 2007 grand theft felony conviction to a misdemeanor. But the court denied the motion to dismiss the prior conviction for purposes of the Three Strikes law, and allowed the conviction to be used as a strike. Accordingly, on June 11, 2015, the trial court sentenced defendant to 16 months in prison, doubled pursuant to the Three Strikes law, for a total of 32 months. On July 9, 2015, defendant filed a notice of appeal. DISCUSSION On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft- related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.) “Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and