Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC059451A
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
At a change of plea proceeding, after a full advisement of his rights, Demosthenes J. Caicedo, represented by counsel, pleaded no contest to one count of felony possession of methamphetamine (Health & Saf. Code, § 11377) and admitted that he had three prior felony convictions including a prior strike conviction for robbery in violation of Penal Code section 211 (Pen. Code, §§ 1170.12, subd. (c)(1); 1203, subd. (e)(4)). Caicedo was advised, and told the court he understood, that the maximum sentence that could be imposed was a total term of 32 months, but that the court would consider a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike his prior robbery conviction, a serious felony under Penal Code section 1192.7, subdivision (c)(19).
At sentencing, the court explained its reasons for denying Caicedo’s Romero motion. The court also explained its reasons for denying Caicedo’s request for probation and drug treatment under Proposition 36 (Pen. Code, § 1210.1 et seq.). The court imposed the promised sentence of 32 months, which included the low term of 16 months doubled because of the prior strike conviction.
Caicedo’s appellate counsel has filed a brief asking us to independently review the record under People v. Wende (1979) 25 Cal.3d 436. As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that counsel has informed Caicedo of his right to file a supplemental brief, and he has not filed such a brief.
Caicedo’s appellate counsel discovered no issues meriting argument, but suggests we might consider whether the court properly denied Caicedo’s request for probation and drug treatment under Penal Code section 1210.1. We have reviewed the record and there is no issue warranting further briefing. Section 1210.1, subdivision (a) provides, in relevant part, that “any person convicted of a nonviolent drug possession offense shall receive probation.” However, probation under the statute is prohibited for “[a]ny defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.” (Pen. Code, § 1210.1, subd. (b)(1); italics added.) The time period in which a defendant must be both free of prison custody and the commission of disqualifying felony and misdemeanor convictions is the five years “immediately” preceding the current nonviolent drug possession offense. (See People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 698-702; People v. Superior Court (Henkel) (2002) 98 Cal.App.4th 78, 81-85; People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222, 1228-1231; People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 533-537.) Appellate counsel misreads the court’s decision in Moore v. Superior Court (2004) 117 Cal.App.4th 401. In that case, the court determined only that the relevant timing of the prior disqualifying felony that commences the five-year period is the date of its commission and not the date of conviction. (Id. at pp. 406-407.) In so concluding, the Moore court expressly acknowledged that the five-year period “must immediately precede the current nonviolent drug possession offense[.]” (Id. at p. 410, citing People v. Superior Court (Martinez), supra, 104 Cal.App.4th at p. 702.) Here, the record discloses that within the applicable five-year period, Caicedo was arrested twice in 2004 and later convicted of violating Penal Code section 12020, subdivision (a)(1), as a felony, and two counts of violating Penal Code section 470, subdivision (d), as felonies. Consequently, Caicedo was statutorily ineligible for probation and drug treatment under Proposition 36 because he had not remained free of disqualifying felony convictions during the five years immediately preceding his commission of the current nonviolent drug possession offense.
Although Caicedo’s convictions for violating Penal Code section 12020, subdivision (a)(1) (manufacture, importation, sale or possession of disguised firearms or other deadly weapons, or carrying concealed weapons), and section 470, subdivision (d) (acts constituting forgery), were punishable as either felonies or misdemeanors (Pen. Code, §§ 17, subd. (b), 473, 12020, subd. (a)(1)), the probation department report indicates he was convicted of those offenses as felonies. The offenses retained their status as felony convictions even though the court suspended the imposition of sentence and imposed probationary terms. (People v. Martinez (1998) 62 Cal.App.4th 1454, 1464.) At the time of the commission of the current nonviolent drug possession offense, the 2004 felony convictions had not been reduced to misdemeanors. (See People v. Statum (2002) 28 Cal.4th 682, 685 [“An alternative felony/misdemeanor, also known as a ‘wobbler,’ is deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b)”].)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.