People v. Vasquez CA2/1

Filed 9/30/16 P. v. Vasquez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, B269404

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. A359024, BA118655) v.

DAVID M. VASQUEZ,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, David Horwitz and Katherine Mader, Judges. Affirmed.

Melissa L. Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Appellant David M. Vasquez appeals from the orders denying two separate petitions for resentencing under Proposition 47 in unrelated criminal court cases: case No. A359024 and case No. BA118655. Case No. A359024: In his petition, appellant indicated that he had been convicted under Penal Code section 459,1 of second degree burglary and he checked a box stating that the amount in question “is not more than $950.” Appellant did not attach any documents or evidence in support of the petition and neither appellant nor the People appeared at the hearing on the petition. On October 21, 2015, the court denied the petition, finding that appellant was ineligible for resentencing because appellant had not submitted any evidence to the court and thus had failed to satisfy the burden of proof “that the value of loss in question is less than $950.” Case No. BA118655: In 1995 appellant was convicted in case No. BA118655 of a violation of section 459 (residential burglary), and section 487h, subdivision (a) (grand theft of a vehicle). In his petition for resentencing, appellant listed his conviction as a section “487B(a)” felony. Appellant presented no evidence in support of the petition and did not attend the hearing. On November 19, 2015, the trial court denied appellant’s petition finding that he was ineligible for resentencing. The court noted that appellant was in state prison on a “Three Strikes” sentence of 35 years to life and that the section 459 conviction was a first degree residential burglary: “The felony conviction is for an offense that does not qualify under . . . § 1170.18(a) or (f).” Appellant filed a notice of appeal from the orders denying his petitions. We appointed counsel to represent appellant on appeal. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On July 22, 2016, we directed appointed counsel to immediately send the record on appeal and a copy of the opening brief to appellant. We notified appellant that within