Opinion
F071624
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JARED JUSTIN MARKS, Defendant and Appellant.
Kendall D. Wasley, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF154381A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Kane, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Appointed counsel for defendant Jared Justin Marks asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. We granted defendant permission to file a late brief, but more than 30 days elapsed after our order granting permission, and we received no communication from defendant. Finding no arguable issues, we affirm.
BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On March 16, 2014, defendant entered a locked car with the intent to commit a felony.
On September 8, 2014, defendant pled no contest to second degree burglary. (Pen. Code, § 459 ["Every person who enters any ... vehicle as defined by the Vehicle Code, when the doors are locked, ... with intent to commit grand or petit larceny or any felony is guilty of burglary."]; § 460, subd. (b).) The trial court asked how he pled to the charge that "on or about March 16th, 2014, [he] did willfully, unlawfully enter a locked vehicle belonging to Kyle Richardson, with the intent to commit a theft. This is a violation of Penal Code section 460(b), that's a second degree burglary, which is a felony ...." On October 10, 2014, the trial court sentenced him to four years in prison.
All statutory references are to the Penal Code. --------
On March 23, 2015, defendant petitioned the trial court for resentencing pursuant to section 1170.18, subdivision (a). The parties agreed that the car defendant entered was locked, and the trial court concluded the offense was not eligible for relief.
DISCUSSION
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.)
"Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b), italics added; People v. Shabazz (2015) 237 Cal.App.4th 303, 310, fn. 3.)
In this case, the trial court was correct that defendant's conviction for second degree vehicular burglary did not make him eligible for resentencing under section 1170.18. "Proposition 47 made no changes to sections 459, 460 or 461, nor did it explicitly reduce all prior felony second degree burglary offenses to misdemeanor second degree burglary offenses." (People v. Chen (2016) 245 Cal.App.4th 322, 326.) Burglary of a locked vehicle is not among the eligible offenses listed in section 1170.18. The court did not err.
We have reviewed the record and have found no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.