People v. Joachim CA1/5

Filed 8/1/16 P. v. Joachim CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A147190 v. DUANE SCOTT JOACHIM, (Sonoma County Super. Ct. No. SCR-464255) Defendant and Appellant.

Duane Scott Joachim appeals from an order summarily denying his petition for resentencing under Penal Code section 1170.18,1 part of The Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014); hereafter Proposition 47). Appellant’s court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel has also filed a supplemental letter brief with this Court directing our attention to the recent decision in People v. Smith (July 8, 2016, E062858) ___ Cal.App.4th ___ [2016 WL 3676069] (Smith), which might “ ‘arguably support the appeal.’ ” (Wende, at p. 439; see People v. Kent (2014) 229 Cal.App.4th 293, 296 [“briefs identifying possible appellate issues in what turn out to be Wende matters remain welcome”].) We affirm. I. FACTS AND PROCEDURAL HISTORY On January 3, 2006, appellant pleaded guilty to a single count of possession of stolen properly under section 496, subdivision (a), in an exchange for a dismissal of other

1 Further statutory references are to the Penal Code.

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charges and a grant of probation conditioned upon his serving 12 months in the county jail. The plea agreement did not specify the value of the stolen property at issue. On November 4, 2014, the voters enacted Proposition 47, which “reclassified certain drug-and theft-related offenses that were felonies or ‘wobblers’ as misdemeanors, and provided a resentencing process for individuals who would have been entitled to lesser punishment if their offenses had been committed after its enactment.” (People v. Rouse (2016) 245 Cal.App.4th 292, 294.) As relevant here, newly-enacted section 1170.18, subdivision (f), provides, “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” On June 18, 2015, appellant filed a Proposition 47 petition under section 1170.12,2 alleging in relevant part: “1. On January 3, 2006, [appellant] was convicted within the above-entitled case of a felony violation of Penal Code, § 496(a) Receiving Stolen Property that has now been made a misdemeanor per Proposition 47, enacted November 04, 2014. [¶] 2. The value of the property does not exceed $950.00, since, that amount was never a condition of the plea agreement. [¶] 3. [Appellant] has currently served the imposed sentence for this offense. . . .” The Sonoma County District Attorney filed a form response to the petition, which stated appellant was not entitled to resentencing because the “value of the stolen property exceeds $950.”3 The trial court denied the petition without holding a hearing on the matter.