People v. Earp CA5

Filed 6/15/22 P. v. Earp 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080765 Plaintiff and Respondent, (Tulare Super. Ct. No. TCF107671) v.

DONNY YASHAWN EARP, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Smith, Acting P. J., Snauffer, J. and De Santos, J.

INTRODUCTION Appellant Donny Yashawn Earp filed a petition pursuant to Penal Code1 section 1170.18 for the trial court to reclassify his felony conviction for second degree vehicular burglary to a misdemeanor. The court denied the petition. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm. FACTUAL AND PROCEDURAL BACKGROUND On April 9, 2003, a felony complaint was filed in the Superior Court of Tulare County case No. TCF107671, charging appellant with count 1, attempted second degree burglary of a vehicle, an ice cream truck, the doors of said vehicle being locked, on March 24, 2003 (Pen. Code, §§ 664, 459); and count 2, burglary of a garage on August 14, 2002 (§ 459). He was also charged with second degree burglary of the following vehicles, all committed on March 17, 2003: count 3, a Dodge Dakota; count 4, a Nissan Maxima; count 5, a Ford Explorer; count 6, a Hyundai Elantra; count 7, a Buick Roadmaster; and count 8, a Jeep Cherokee. (CT 4-6) On June 24, 2003, appellant pleaded to count 1, attempted second degree vehicular burglary of an ice cream truck, and count 3, second degree vehicular burglary of a Dodge Dakota. The court placed him on probation for three years subject to certain terms and conditions. On April 14, 2005, the court revoked and terminated appellant’s probation and sentenced him to 16 months in prison for felony count 1. PROPOSITION 47 Proposition 47 was approved in November 2014, and “makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain