People v. Garcia CA5

Filed 10/28/20 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080087 Plaintiff and Respondent, (Super. Ct. No. VCF215347) v.

ERNESTO GARCIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Higbee & Associates, Mathew K. Higbee, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.

Defendant Ernesto Garcia contends on appeal the trial court erred in concluding it could not reduce his conviction for possession of a machine gun, erroneously determining (1) possession of a machine gun was a “straight felony” rather than a “wobbler,” and (2) the court did not have jurisdiction to reduce the conviction because it was previously dismissed pursuant to Penal Code section 1203.4.1 The People agree. We reverse and remand. PROCEDURAL SUMMARY On March 6, 2009, defendant pled no contest to possession of a machine gun (former § 12220, subd. (a), current § 32625, subd. (a)). He was placed on felony probation for three years and required to serve 30 days in jail. After defendant satisfied the conditions of his probation, he requested that the trial court dismiss his conviction pursuant to section 1203.4. On November 6, 2014, the court granted defendant’s unopposed request. On April 5, 2016, defendant moved the trial court to reduce his conviction from a felony to a misdemeanor. The court denied defendant’s motion. On July 24, 2019,2 defendant moved the trial court for a second time to reduce his conviction. On August 23, the court denied his motion without prejudice, concluding that the 2009 conviction for possession of a machine gun was a “straight felony” and not a “wobbler” so “relief [was] not available .…” The court further concluded that, because a dismissal pursuant to section 1203.4 had already been granted, it “jurisdictionally [could not] reduce [the conviction] to a misdemeanor.” On October 3, defendant filed a notice of appeal.