Opinion
H042831
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY NG GAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B1366157)
Defendant Jimmy Ng Gan appeals from the trial court's order granting his petition for resentencing under Proposition 47. He claims that, because imposition of sentence had been suspended and probation granted, he had not been "sentenced" within the meaning of Penal Code section 1170.18. Defendant contends that he was therefore entitled to retroactive application of Proposition 47 to his offense, rather than resentencing. The difference is that retroactive application would result in defendant not being subject to the firearm prohibition that follows from a felony conviction even after it is resentenced as a misdemeanor under section 1170.18. We reject his contention and affirm the trial court's order.
Subsequent statutory references are to the Penal Code. --------
I. Background
In April 2013, defendant took merchandise worth $149.95 from the Apple Company Store and left without paying for it. He had previously committed a similar theft at the same store. Defendant was charged by felony complaint with petty theft with three priors (former § 666). He entered into a plea agreement under which he pleaded no contest to the charged offense and admitted the priors in exchange for a grant of probation with a jail term that would be deemed satisfied with credit for time served. In July 2013, the court suspended imposition of sentence and placed defendant on probation for three years.
In September 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 granted the petition, redesignated his offense as a misdemeanor, and terminated his probation. 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. Defendant timely filed a notice of appeal from the court's order.
II. Analysis
Defendant contends that, because he was on probation, he "was not yet 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.