People v. Trotter CA4/3

Filed 8/25/16 P. v. Trotter CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051688

v. (Super. Ct. No. 13WF1447)

DONALD TROTTER III, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded for further proceedings. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Background Donald Trotter III appeals from an order denying his petition to recall sentence pursuant to Penal Code section 1170.18, subdivision (a) (all code references are to the Penal Code). We reverse and remand to permit the trial court to determine under section 1170.18, subdivision (b) whether resentencing Trotter would pose an unreasonable risk of danger to public safety. Trotter had pleaded guilty to one count of first degree residential burglary (§§ 459, 460, subd. (a)) and one count of theft of a firearm (§ 487, subd. (d)(2).) As the factual basis for his plea, Trotter stated that on March 19, 2013, “I unlawfully entered an inhabited dwelling house, with the intent to commit a larceny, and I unlawfully took the firearm of Deborah C. with the intent to permanently deprive.” Trotter was sentenced to a total of two years eight months in prison. In January 2015, Trotter filed a petition for recall of sentence and for resentencing under section 1170.18, subdivision (a). The trial court denied the petition on the ground Trotter’s conviction for theft of a firearm made him ineligible for resentencing. Discussion “‘On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act . . . .’ [Citation.] ‘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).’ [Citation.]” (People v. Morales (2016) 63 Cal.4th 399, 404.) Proposition 47 added section 1170.18. (People v. Morales, supra, at p. 404.) Under section 1170.18, subdivision (a), “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense