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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080764 Plaintiff and Respondent, (Tulare Super. Ct. No. VCF186455) 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 July 3, 2007, a felony complaint was filed in Superior Court of Tulare County case No. VCF186455, charging appellant with count 1, second degree burglary of a vehicle, a 1998 Volvo S-70, on June 29, 2007 (§ 459), with two prior prison term enhancements (§ 667.5, subd. (b)). On July 19, 2007, appellant pleaded guilty to the charged offense and admitted the two enhancements. On August 16, 2007, the court denied probation and sentenced appellant to the midterm of two years for count 1, plus one year for one prior prison term enhancement, and ordered the second enhancement stricken. 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 ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 “also added … section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions