Opinion
F072087
01-19-2017
THE PEOPLE, Plaintiff and Respondent, v. SHAWN ARLIN DONLEY, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. M13403)
OPINION
THE COURT APPEAL from an order of the Superior Court of Madera County. Dale J. Blea, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J. and Peña, J.
-ooOoo-
Shawn Arlin Donley appeals from the trial court's denial of his petition to have his conviction for second degree burglary designated a misdemeanor pursuant to the provisions of Proposition 47, the Safe Neighborhoods and Schools Act. Appellate counsel failed to identify any arguable issues in the case. Our review of the record confirms the trial court properly denied the petition, and we therefore affirm its order.
FACTUAL AND PROCEDURAL SUMMARY
In 1996, Donley entered a plea agreement resolving several cases pending against him. He agreed to plead guilty (or no contest) to one count of transportation/sale of a controlled substance for a maximum term of three years (Health & Saf. Code, § 11379, subd. (a)), one count of second degree burglary for a consecutive term of eight months (Pen. Code, § 459), one count of issuing a check with insufficient funds for a consecutive term of eight months (Pen. Code, § 476a, subd. (a)), and one count of grand theft for a consecutive term of eight months (Pen. Code, § 487, subd. (a)). Pursuant to the terms of the agreement he was sentenced to prison for a term of five years.
In 2014, Donley filed a petition for reduction of various of his prior convictions to misdemeanors pursuant to the provisions of Proposition 47. One such conviction was the above referenced second degree burglary conviction. The trial court denied the petition as it related to the burglary conviction finding it was not eligible for reduction pursuant to the applicable statutes. Donley appeals from the denial of his motion.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after a thorough review of the record no arguable issues could be identified. After a thorough review of the record we agree there are no arguable issues in this case.
Donley filed a petition pursuant to Proposition 47 to have his felony burglary conviction reduced to a misdemeanor. Proposition 47, the Safe Neighborhoods and Schools Act, was passed by the electorate in 2014. The proposition reclassified certain drug- and theft-related offenses from felonies to misdemeanors, unless the crime is committed by certain ineligible defendants. In addition, the proposition permitted those already convicted of the identified crimes to petition the trial court to have their convictions reduced from a felony to a misdemeanor. This provision of the proposition is codified in Penal Code section 1170.18. (Hereafter section 1170.18.)
Section 1170.18, subdivision (f) permits those who had been convicted of a felony, but would have been convicted of a misdemeanor had Proposition 47 been in effect at the time of the conviction, to petition the trial court to have the felony designated a misdemeanor. The crimes which were reclassified as misdemeanor by Proposition 47 are: (1) possession of certain controlled substances as provided for in Health and Safety Code sections 11350, 11357, and 11377, (2) shoplifting as codified in Penal Code section 459.5, (3) forgery in an amount less than $950 as codified in Penal Code section 473, (4) issuing bad checks in an amount less than $950 as codified in Penal Code section 476a, (5) petty theft with a prior where the amount taken is valued at less than $950 as codified in Penal Code section 490.2, (6) receiving stolen property with a value of less than $950 as codified in Penal Code section 496, and (7) certain convictions for petty theft with a prior pursuant to the provisions of Penal Code section 666. (§ 1170.18, subd. (a).)
Donley was convicted of violating Penal Code section 459, which was not affected by the provisions of the proposition. Therefore, the trial court properly denied Donley's petition.
By letter dated March 29, 2016, we invited Donley to identify any issues he would like addressed in this appeal. Donley responded to our invitation by asserting he was actually innocent of the charged crime. Without expressing any opinion on the merits of Donley's argument, we note that whether or not he is actually innocent of the charged crimes is irrelevant to the issue of whether he is entitled to relief pursuant to the provisions of Proposition 47. We also note this argument is analyzed and rejected in our opinion denying his petition for a writ of habeas corpus.
Donley makes the same argument in a petition for a writ of habeas corpus. We address the merits of this argument in a separate opinion. --------
DISPOSITION
The order denying the petition to have Donley's felony conviction for second degree burglary designated a misdemeanor pursuant to the provisions of Proposition 47 is affirmed.