People v. Fournier CA2/3

Filed 9/1/16 P. v. Fournier CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B264308

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA118899) v.

DUSTIN DESMOND FOURNIER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Reversed and remanded with directions.

Deborah L. Hawkins, 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 Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Appellant Dustin Fournier is serving a six-year sentence upon his 2011 no contest plea to felony attempted grand theft of personal property and admission to various sentencing enhancements. (Pen. Code, §§ 664, 487, subd. (a), 1170.12, subd. (a).)1 In 2015, Fournier filed a petition to recall sentence pursuant to Proposition 47. The trial court found Fournier ineligible for Proposition 47 resentencing, determining that Proposition 47 does not apply to his offense of conviction. We reverse the order denying the petition and remand with directions. BACKGROUND The facts of the offense as stated in the probation report are straightforward. Shortly before 8:48 a.m. on March 6, 2011, Ronald Hoover’s daughter was sleeping in the garage of his Lakewood residence. She awoke and saw appellant and another man looking around in the residence’s backyard. They opened the unlocked kitchen door and came in. Shortly after entering the residence, they left. In response to a call reporting a burglary, sheriff’s deputies came to the residence and detained appellant as he walked out of the house. Hoover had not given either man permission to enter his residence. The People charged Fournier with first degree burglary and various sentencing enhancements. On October 5, 2011, he pled no contest to an amended count 2, attempted grand theft of personal property, a felony in violation of section 487, subdivision (a). He also admitted several sentencing enhancements. The court sentenced Fournier to state prison for six years, three years on attempted grand theft and three years on the enhancements. On March 16, 2015, appellant filed a petition for resentencing pursuant to Proposition 47, section 1170.18, subsections (a) and (f)). At the hearing, the People told the court that Fournier was ineligible for relief because he was “convicted of attempted grand theft.” The court stated: “The Prop 47 request is denied. He’s statutorily ineligible because of the charge.”