People v. McDowell

Filed 8/26/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B265879

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA084257) v.

KEDRENE McDOWELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Jared Moses, Judge. Affirmed.

David R. Greifinger, 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, Susan Sullivan Pithey and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

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Kedrene McDowell appeals from the judgment resentencing him to an overall prison term the same length as his previous, plea-bargained sentence after the trial court granted his motion to reduce two of his several convictions to misdemeanors pursuant to Proposition 47. We affirm because Proposition 47 permits imposing a new sentence that equals the previous sentence and because the trial court did not abuse its discretion by doing so here. FACTS AND PROCEDURAL HISTORY In 2012 McDowell pled no contest to six felony burglary counts (Pen. Code, § 459) and admitted the truth of allegations that he committed the current offenses while out on bail for another crime (Pen. Code, § 12022.1) and had one prior conviction that qualified as a strike under the Three Strikes law.1 As part of a plea bargain, the court sentenced him to a total of 10 years in state prison as follows: 16 months for each count, calculated as one-third the mid-term, doubled under the Three Strikes law (96 months), plus 2 years for the out-on-bail allegation. These were to run consecutively to the four- year sentence imposed in the out-on-bail case (LASC case No. YA081900). In exchange, three other counts were dismissed: two for burglary and one for petty theft with a prior conviction. (§ 666, subd. (b).) In January 2015 McDowell filed a petition to resentence his burglary convictions as misdemeanor shoplifting counts (§ 459.5), pursuant to Proposition 47. (§ 1170.18, subds. (a) & (b).) The parties stipulated to reduce two of the burglary counts – numbers 5 and 7 – to misdemeanors. Meanwhile, the principal, four-year term imposed in the other case (LASC case No. YA081900) had already been reduced to a misdemeanor, with McDowell credited for time served. This required upon resentencing the selection of a new principal term. At the hearing on the petition, McDowell’s lawyer asked for a combined nine-year sentence, calculated as: (1) four years based on the mid-term on Count 1 for burglary, doubled under Three Strikes; (2) another four years based on one-third the mid-term on