People v. Johnston CA3

Filed 5/11/22 P. v. Johnston CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

THE PEOPLE, C093257

Plaintiff and Respondent, (Super. Ct. No. 32996)

v.

TYLER RICHARD JOHNSTON,

Defendant and Appellant.

Defendant Tyler Richard Johnston appeals from the postjudgment denial of his application to designate as a misdemeanor his 37-year-old felony conviction for taking a vehicle without the consent of the owner. The People argue that defendant failed to submit evidence with his initial filing proving that his conviction is eligible for designation as a misdemeanor. Finding defendant sufficiently alleged eligibility for relief, we will reverse the trial court’s order and remand for further proceedings.

1

I. BACKGROUND The record from defendant’s past felony conviction is incomplete, but the July 22, 1985 sentencing minutes indicate the trial court convicted defendant of theft of a motor vehicle in violation of Vehicle Code section 10851. The felony complaint charged defendant with both driving and taking a 1967 Ford Mustang. The trial court sentenced defendant to 180 days in county jail; imposed a three-year term of probation, a fine of $750, and a penalty of $375; ordered defendant to pay $2,374.88 as restitution to the owner of the stolen car; and imposed and stayed a restitution fine of $2,374.88. Defendant appears to have completed his term of probation in 1988. In July 2020, defendant submitted to the trial court a form application seeking to redesignate his conviction as a misdemeanor pursuant to Penal Code section 1170.18, subdivisions (f) and (g).1 Defendant asserted that his felony offense has now been reclassified as a misdemeanor, that he has no disqualifying prior convictions, and that he has completed his sentence for the eligible felony conviction. In response to the trial court’s request for the People’s position, the People opposed the application based on the argument that defendant had a disqualifying prior conviction.2 The trial court then summarily denied defendant’s application. This appeal followed.3