People v. Perez CA2/5

Filed 9/26/16 P. v. Perez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B267493

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A764393) v.

OSCAR R. PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Horwitz, Judge. Reversed and remanded. Leonard J. Klaif, 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, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Oscar Rivas Perez (defendant), who is serving a life sentence for a federal criminal conviction, petitioned to reduce his 1987 California drug possession conviction to a misdemeanor under Proposition 47. The trial court found he was ineligible for relief and denied his petition. Defendant then filed a motion for reconsideration, which the trial court neither granted nor denied. Instead, the clerk of the Superior Court transmitted to this court—and served on defendant—a Notice of Filing of Notice of Appeal, which attached a copy of defendant’s reconsideration motion. We are asked to decide whether this sequence of events invokes our appellate jurisdiction, and if so, whether the trial court correctly denied defendant’s petition for Proposition 47 relief.

I. BACKGROUND In 1987, defendant was convicted of violating Health and Safety Code section 11350, which makes it a felony to possess a controlled substance (the Section 11350 Conviction). He was sentenced to 147 days in county jail and three years on probation. Later, in 1991, he received a sentence of life in prison for a separate federal conviction. Defendant asserts this sentence was “structured and imposed in consideration of” the earlier 1987 conviction. Following enactment of Proposition 47, the Safe Neighborhood and Schools Act, defendant filed an Application/Petition for Resentencing as authorized by a statutory provision Proposition 47 added to the Penal Code, section 1170.18. The petition asked 1 the superior court to reduce defendant’s Section 11350 Conviction to a misdemeanor. Defendant’s petition revealed he was “[s]erving [a] life sentence due to prior.” The superior court denied defendant’s Petition on August 3, 2015, finding he was ineligible for Proposition 47 relief because he has a prior conviction and is serving a life sentence.