People v. Collins

Full title: THE PEOPLE, Plaintiff and Respondent, v. BRYAN LEGRANDE COLLINS, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Jan 9, 2017

H042983 (Cal. Ct. App. Jan. 9, 2017)

Opinion

H042983

01-09-2017

THE PEOPLE, Plaintiff and Respondent, v. BRYAN LEGRANDE COLLINS, Defendant and Appellant.

Mihara, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1109195)

Defendant Bryan Legrande Collins appeals from the trial court's order granting his Penal Code section 1170.18 petition.¹ He claims that, because imposition of sentence had been suspended and probation granted, he had not been "sentenced" within the meaning of section 1170.18. Defendant contends that he was therefore entitled to retroactive application of Proposition 47 to his offense, rather than being required to petition under section 1170.18. Retroactive application would have meant that he was not subject to the firearm prohibition that follows from a felony conviction even after the grant of a section 1170.18 petition. We reject his contention and affirm the trial court's order.

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

I. Background

Defendant was charged by complaint with felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)).² In 2011, he pleaded guilty to the possession count and no contest to the driving count. The court suspended imposition of sentence and granted deferred entry of judgment (DEJ) under section 1000 as to the possession count. It suspended imposition of sentence and placed him on "court probation" for one year for the driving count. In December 2011, the court terminated DEJ, suspended imposition of sentence, and placed him on probation for two years. Defendant violated his probation repeatedly in 2012 and 2013. In June 2013, his probation was revoked, reinstated, and modified to extend it for an additional three years.

2 Defendant waived preliminary examination, and there is no probation report. The parties stipulated to a factual basis for the pleas but did not describe it. Hence, we cannot describe the facts of the offenses.

In October 2015, defendant, who remained on probation, and the prosecutor filed a stipulated petition for resentencing under section 1170.18. At the hearing on the petition, the court stated that "before addressing the petition, I'm going to terminate probation in this case." It then treated the petition as one for "redesignation" and granted it. Defendant's trial counsel objected to the court's ruling that the firearm prohibition in section 1170.18, subdivision (k) continued to apply to defendant.³ Defendant timely filed a notice of appeal from the court's order.

3 Section 1170.18, subdivision (k) provides: "Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." --------

II. Analysis

Defendant contends that, because he has been placed on probation with imposition of sentence suspended, he "had not been 'sentenced' " and therefore section 1170.18 "did not apply to him." We recently rejected this contention and held that section 1170.18 "appl[ies] to all those with felony dispositions, including those placed on probation . . . ." (People v. Garcia (2016) 245 Cal.App.4th 555, 559 (Garcia).) Garcia had a different procedural posture from this case, but our construction of section 1170.18 in Garcia is fully applicable to this case. Indeed, the First District Court of Appeal recently came to the same conclusion in a case with the very same procedural posture as this one. (People v. Davis (2016) 246 Cal.App.4th 127, review granted July 13, 2016, S234324 (Davis).) We agree with the reasoning in Garcia and Davis. Consequently, we reject defendant's contention.

III. Disposition

The order is affirmed.

/s/_________

Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.