Opinion
H041973
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE ANGELO GROSSE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1483834)
Defendant Jermaine Angelo Grosse pleaded no contest to felony petty theft with three or more priors (Pen. Code, former § 666, subd. (a)), and the court suspended imposition of sentence and placed him on probation in June 2014. Proposition 47, which took effect in November 2014, reclassified certain theft and controlled substance offenses as misdemeanors rather than felonies. Proposition 47 also enacted section 1170.18, which permits a person "currently serving a sentence" for a conviction of one of the reclassified offenses to petition for resentencing on that conviction. After Proposition 47 took effect, the trial court resentenced defendant under section 1170.18 to a misdemeanor sentence for his former section 666 conviction. It rejected defendant's claim that section 1170.18 did not apply to him because he had not been "sentenced" since he was on probation with imposition of sentence suspended.
Subsequent statutory references are to the Penal Code. --------
Defendant renews this contention on appeal. He claims that he was entitled to retroactive application of Proposition 47 to his offense so that he would not be subject to the firearm prohibition, which follows from a felony conviction even after it is resentenced as a misdemeanor under section 1170.18, and would not be subject to the one-year parole period provided for by section 1170.18. We reject his contention and affirm the trial court's order.
I. Background
Defendant stole an unattended cell phone. In June 2014, defendant pleaded no contest to felony petty theft with three or more priors (former § 666, subd. (a)) in exchange for probation conditioned on a 120-day jail term. In July 2014, the court suspended imposition of sentence and placed defendant on probation for three years conditioned on his serving 120 days in jail. Defendant was arrested on controlled substance charges in both August and September 2014. His probation was summarily revoked in October 2014.
Proposition 47 took effect on November 5, 2014. It amended section 666, which had provided for alternative felony or misdemeanor punishment for petty theft with three or more prior offenses, to limit its application to registered sex offenders and others with specified prior convictions. (Proposition 47, § 10; Stats. 2013, ch. 782, § 1.) Thus, after Proposition 47's enactment, a person who, like defendant, is not a registered sex offender and does not have any of the specified prior convictions is subject to only misdemeanor punishment for a petty theft offense even if he or she has prior theft convictions. (§§ 490, 490.2.) Proposition 47 also enacted section 1170.18, which provided a mechanism for those "currently serving a sentence" for a conviction for an offense that would have been a misdemeanor under Proposition 47's provisions to petition for resentencing.
On November 6, 2014, the trial court found that defendant was "eligible" under Proposition 47 and "reduced" defendant's conviction to a misdemeanor. On November 25, 2014, defendant admitted violating his probation, and the court ordered him to serve 125 days in custody for the probation violation, which was deemed satisfied with credit for time served. The court then stated it would "continue the defendant on probation under original terms and conditions having reinstated that probation until determination of the Petition under Prop 47."
In December 2014, defendant asked the court to find that he was not subject to section 1170.18 because he had not been "currently serving a sentence" when Proposition 47 took effect. The court found that a defendant who was on felony probation with imposition of sentence suspended was "currently serving a sentence" and rejected his contention. In January 2015, the court reinstated defendant's probation on the original terms and conditions. Defendant timely filed a notice of appeal from the court's order, and he obtained a certificate of probable cause.
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/_________
Premo, Acting P. J. /s/_________
Elia, J.