People v. Smith CA3

Filed 9/20/16 P. v. Smith CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C079842

Plaintiff and Respondent, (Super. Ct. No. SF080321B)

v.

JERMAINE LAMONT SMITH,

Defendant and Appellant.

Defendant Jermaine Lamont Smith appeals from the trial court’s order denying his Penal Code section 1170.18 petition for resentencing as to his conviction for receiving a stolen vehicle (§ 496d, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code). He contends that his conviction qualified for resentencing. We affirm the court’s order denying his petition.

FACTS AND PROCEEDINGS

Although defendant’s notice of appeal concerned the trial court’s denial of resentencing as to the receiving a stolen vehicle conviction and an earlier conviction for attempted residential burglary (§§ 664/459), he only disputes the denial of the petition as

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to the receiving conviction. We discuss only the relevant facts and procedural background of that conviction. Defendant and a companion were arrested after a police officer saw him driving a 1997 Honda Civic that had been reported stolen. (People v. Smith (June 4, 2015, C075887) [nonpub. opn.] at p. 1.) A jury convicted defendant of receiving a stolen vehicle. (Id. at p. 4.) The trial court sustained a strike and four prior prison term allegations (§§ 667, 1170.12, 667.5, subd. (b)) and sentenced defendant to a 10-year state prison term. (Id. at pp. 2, 4.) Defendant, without the assistance of counsel, subsequently filed a section 1170.18 petition seeking resentencing as to the receiving conviction. The petition contained no factual allegations regarding the value of the stolen vehicle. At the hearing on the petition, the prosecutor said, “This was a request for a reduction or change in the charge, it was a 496. This was a stolen car [worth] more than $2,000. We object. The party is not eligible pursuant to Prop. 47.” The trial court replied, “All right, I think that the 496D(A) even [if] the car is worth [less] than $950, it would not be eligible. In this case, that’s not even the case for more than both reasons, the petition is denied.” Defendant’s counsel replied that she thought defendant actually “admitted a 496 (A), which facially qualifies.” The trial court informed counsel the conviction was for receiving a stolen vehicle under section 496d, subdivision (a).