Opinion
A160722
02-16-2021
THE PEOPLE, Plaintiff and Respondent, v. TYLER R. JOHNSTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. H36830, H36808)
Tyler R. Johnston appeals from the denial of his "Application for Reduction to Misdemeanor" pursuant to Penal Code section 1170.18, subdivision (f). His court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Further statutory references are the Penal Code unless otherwise stated. --------
Appellant's counsel declares that she has thoroughly reviewed the entire record in this appeal and on that basis determined that the filing of a Wende brief is appropriate. Counsel additionally represents she has advised appellant such a brief would be filed in this case, that he may personally file a supplemental brief raising any issues he wishes to call to the court's attention within 30 days, and that she will send him the record upon request. Finally, counsel informed appellant that though he may ask the court to relieve her as counsel, she remains available for any further briefing the court may request. Appellant did not file a supplemental brief.
This appeal is authorized by section 1237, subdivision (b) and rule 304(a) of the California Rules of Court.
FACTS AND PROCEEDINGS BELOW
On January 30, 2004, in case No. H36808, appellant was convicted of felony unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). About six months later, on June 12, 2004, appellant was again convicted of the same offense in case No. H36830.
On May 7, 2020, appellant filed an application to reduce the two Vehicle Code offenses from felonies to misdemeanors pursuant to section 1170.18, subdivision (f), which was enacted by Proposition 47 in 2014. The form application, which was adopted for mandatory use by the Alameda County Superior Court, was filed by appellant in propria persona and signed by him. By this form, appellant "alleges that s/he has completed his/her sentence and is eligible to have the felony count(s) above designated as misdemeanor(s)." Appellant checked a box indicating that he "does consent to service by email of any Response and the Order in this matter."
However, the portion of the form required to be completed and signed by a deputy district attorney as a response to the application was not filled out or signed. The form required the deputy district attorney to check one of three boxes indicating that: (1) "Applicant is not entitled to the relief requested" or (2) "A hearing should be set [with reasons]" or (3) "Applicant has completed his/her sentence and is entitled to have the following felony conviction(s) designated as misdemeanor(s)."
The form indicates that the matter was set for hearing on June 26, 2020 at 9:00 a.m. A minute order indicates that on that date, a hearing was held in Department 709 by Alameda County Superior Court Judge Jon Rolefson; appellant was confined in Solano State Prison and not present, and appellant's petition to reduce was "Denied Without Prejudice for no proof of service on DA and no showing of value <$950." An order stating that the application was denied "without prejudice" because "[n]o proof of service on DA" and "[n]o showing of value <$950" had been made, was signed by Judge Rolefson and filed on June 26, 2020.
Under subdivision (g) of section 1170.18, the court is required to "designate the felony offense or offenses as a misdemeanor" only "[i]f the application satisfies the criteria in subdivision (f)"; that is, the "person who has completed his or her sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense." Because appellant did not serve the application on the district attorney, who therefore never indicated whether appellant was entitled to the relief requested, or whether there was some reason to set a hearing, the court was unable to grant the relief appellant requested.
Clearly, the court did not err in denying the application for reduction to a misdemeanor.
The court trusts that present counsel for appellant will advise him that, because denial of his application was "without prejudice," it may still be served on the district attorney and refiled, provided this is done "on or before November 4, 2022." (§ 1170.18, subd. (j).)
DISPOSITION
The ruling denying without prejudice appellant's application for reduction to a misdemeanor is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.