People v. McMullen CA3

Filed 9/8/16 P. v. McMullen CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Amador) ----

THE PEOPLE,

Plaintiff and Respondent, C078899

v. (Super. Ct. No. 09CR15821)

MATTHEW MCMULLEN,

Defendant and Appellant.

Defendant Matthew McMullen pleaded guilty to petty theft with a prior and admitted a prior strike conviction and a prior prison term. The trial court ultimately sentenced him to five years in prison.

1

Defendant subsequently filed an application for resentencing pursuant to Penal Code section 1170.18,1 a statute enacted with the passage of Proposition 47, the Safe Neighborhoods and Schools Act. (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) The trial court denied the application without a hearing, ruling defendant’s offense was not eligible for resentencing. Defendant now contends the trial court erred and denied him due process by ruling, without a hearing, that his offense is not eligible for resentencing. He adds that any excess custody credit derived from granting his resentencing petition should be credited against the duration of his parole or his fines. We conclude defendant failed to make a prima facie showing in his trial court application that he is eligible for resentencing under section 1170.18. Accordingly, the trial court did not err in denying the application without a hearing. The trial court was not obligated to search the record for evidence supporting a prima facie showing. On the other hand, the trial court’s application form did not provide space for allegations or evidence supporting the application and did not provide instructions on how to append such information to the application. In addition, our own review of the record discloses information that would support at least a prima facie case for eligibility. Under these unique circumstances, and in the interests of judicial economy, we will reverse the trial court’s order and remand for a hearing on the petition. Because defendant’s entitlement to resentencing has not been determined, we do not address his contention regarding custody credit.