People v. McNair CA2/2

Filed 8/17/16 P. v. McNair CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B267657

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA083700) v.

LAVANCE MCNAIR,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. James Otto, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant LaVance McNair (defendant) appeals from an order denying his petition for resentencing under Proposition 47, the Safe Neighborhood and Schools Act (Proposition 47 or the initiative), asking that his felony convictions under Vehicle Code section 10851, subdivision (a) and Penal Code section 666.5 be reduced to misdemeanors.1 We affirm the trial court’s order. BACKGROUND2 Defendant was convicted in 2010 of unlawfully driving or taking a car, in violation of Vehicle Code section 10851, subdivision (a), and unlawfully driving or taking a car with a prior conviction, in violation of Penal Code section 666.5.3 During a sting operation, law enforcement officers left keys in a 2000 Toyota Camry with the motor running. Defendant drove the car without consent while the officers observed and videotaped the event. The trial court sentenced defendant to a total term of 10 years in state prison. In January 2015, defendant filed a petition for resentencing under Proposition 47. On February 11, 2015, the trial court summarily denied defendant’s petition on the ground that his offenses were ineligible for resentencing. This appeal followed. DISCUSSION In November 2014, California voters approved Proposition 47, which reduced certain drug and theft offenses from felonies to misdemeanors. (§ 1170.18, subd. (a).) Proposition 47 added section 1170.18, which allows a person currently serving a felony sentence “who would have been guilty of a misdemeanor” if Proposition 47 had been in