People v. Holloway CA2/2

Filed 6/10/22 P. v. Holloway CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B316482

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA002691) v.

JEFFREY LEE HOLLOWAY,

Defendant and Appellant.

THE COURT: Jeffrey Lee Holloway appeals the order of the superior court denying his postjudgment petition to designate two felony convictions to misdemeanors pursuant to Proposition 47. (Pen. Code,1 § 1170.18, subds. (f)–(h).) We appointed counsel to represent Holloway on appeal. After examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Serrano (2012)

1 Undesignated statutory references are to the Penal Code.

211 Cal.App.4th 496 (Serrano). Thereafter, appellant filed his own supplemental brief, in propria persona. BACKGROUND On June 1, 1990, appellant was convicted by plea of attempted robbery (§§ 664/211) with personal use of a firearm (§ 12022.5, subd. (a)), and assault with a firearm (§ 245, subd. (a)(2)) with personal use of a firearm (§ 12022.5, subd. (a)). According to the amended abstract of judgment, appellant was sentenced to three years in state prison for these offenses. Appellant’s three-year sentence in this case was ordered consecutive to the sentences imposed in three other cases, for a total term of 27 years in state prison. On September 15, 2021, appellant filed a petition for reclassification of his felony convictions as misdemeanors pursuant to Proposition 47 (§ 1170.18, subds. (f)–(h)) and section 17, subdivision (b). In his petition (as well as in his supplemental brief on appeal) appellant asserted that because his crimes in this case were “wobblers” and the court imposed a sentence of 11 months (335 days) in county jail, he was entitled to have his convictions reclassified as misdemeanors. On October 14, 2021, the superior court denied the petition on the ground that appellant’s convictions do not fall within the scope of Proposition 47. The court further noted that appellant did not successfully complete probation and was sentenced to state prison. DISCUSSION Because the instant appeal is not from his conviction, appellant is not entitled to our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 738 (Anders). (See People v. Kelly (2006) 40 Cal.4th 106,