People v. Gutierrez CA2/2

Filed 8/29/16 P. v. Gutierrez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B264621

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA044430) v.

ALBERTO GUTIERREZ,

Defendant and Appellant.

THE COURT:* Defendant Alberto Gutierrez appeals1 from the postjudgment order denying his application to reclassify his felony conviction for possession for sale of a controlled substance (Health & Saf. Code, § 11351) as a misdemeanor pursuant to Penal Code section 1170.18,2 added by Proposition 47.3 We affirm the order.

* BOREN, P.J., CHAVEZ, J., HOFFSTADT, J.

1 On August 17, 2015, we granted defendant’s application/petition for relief from default filed June 9, 2015, and his request for judicial notice of certain documents in the underlying Los Angeles County Superior Court case No. YA044430, copies of which are attached as exhibits 1 through 7 of the request and exhibits A through J to the supplemental request. 2 All further section references are to the Penal Code unless otherwise indicated. 3 Proposition 47 is an initiative measure approved by the voters (Gen. Elec. Nov. 4, 2014) and took effect on November 5, 2014 (see Cal. Const., art. II, § 10 [initiative statute “takes effect the day after the election unless the measure provides otherwise”]).

BACKGROUND In July 2000, an information was filed charging defendant with possession of the ingredients to make a destructive device (§ 12312; count 1); possession for sale of a controlled substance (Health & Saf. Code, § 11351; count 2); and possession of marijuana for sale (Health & Saf. Code, § 11359; count 3). Pursuant to a plea agreement, defendant pleaded no contest to the count 2 offense, and counts 1 and 3 were dismissed. The trial court sentenced defendant to the two-year low term, suspended execution of sentence, and placed him on formal probation for three years. On December 17, 2004, an outstanding bench warrant for defendant was recalled. After finding him in violation of his probation, the trial court revoked his probation and imposed the previously suspended two-year sentence to run concurrently with any sentence he was currently serving.