People v. Martin CA5

Filed 9/26/16 P. v. Martin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F069423 Plaintiff and Respondent, (Super. Ct. Nos. BF137181A, v. BF152335A)

KENNETH WAYNE MARTIN, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Proposition 47 was enacted in 2014 and it reclassified as misdemeanors certain theft crimes involving $950 or less. Before its enactment, appellant Kenneth Wayne Martin entered pleas for felony convictions of receiving stolen property (Pen. Code, § 496, subd. (a)1) and second degree burglary (§ 460, subd. (b)). On appeal he seeks reclassification of these convictions as misdemeanors. We determine, however, that this appellate record does not establish the required monetary amounts necessary for reclassification. Further, appellant must use the statutory remedy available under section 1170.18 to petition for recall of sentence in the trial court. We affirm. FACTUAL BACKGROUND I. Case Number BF137181A. On January 27, 2012, in Kern County Superior Court case number BF137181A, appellant pleaded no contest to felony receiving stolen property (§ 496, subd. (a)) and he admitted a prior felony prison sentence (§ 667.5, subd. (b)). It was alleged, and appellant agreed a factual basis existed, that he pawned stolen items consisting of silver spoons, a spotting scope, video game systems, a radiation gun, and a military compass. Attached to the probation officer’s report was a victim’s statement which claimed a loss well over $950. An aggregate sentence of four years was imposed, with appellant to serve the first year in county jail and the remainder under mandatory supervision. II. Case Number BF152335A. On March 26, 2014, in Kern County Superior Court case number BF152335A, appellant pleaded no contest to second degree burglary (§ 460, subd. (b)) and he admitted a prior strike conviction. It was alleged, and appellant agreed a factual basis existed, that on or about December 20, 2013, he willfully and unlawfully entered a Sears store with the intent to commit theft. An aggregate sentence of 16 months in prison was imposed.