Opinion
E066590
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. LAURA LEIGH MAYNARD, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF003710) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
While participating as a felon serving time in a supervised electronic confinement program, defendant Laura Leigh Maynard removed her ankle transmitter. Defendant was charged with, and pled guilty to grand theft of her ankle transmitter and in-home monitor, property of Sentinel Offender Services (Pen. Code, § 487, subd. (a); count 2). The trial court sentenced defendant to 16 months in state prison. In 2016, defendant filed an application for reduction of her felony conviction to a misdemeanor under Proposition 47 (§ 1170.18, subd. (f)). Defendant appeals the trial court's order denying her application on the ground defendant failed to show the stolen property did not exceed $950.
Unless otherwise noted, all statutory references are to the Penal Code. --------
After defendant filed a notice and amended notice of appeal, this court appointed counsel to represent defendant. Defense counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and facts, and identifying the following potentially arguable issue: Whether the trial court erred in denying defendant's application for reduction of her felony conviction to a misdemeanor under section 1170.18, subdivision (f).
Defendant requests this court to conduct an independent review of the record. We offered defendant an opportunity to file a personal supplemental brief but she has not done so. Under People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues. We therefore affirm the judgment.
II
STATEMENT OF FACTS
In 2004, the People filed a felony complaint against defendant, charging her with two felony counts: (1) willful and unlawful escape or attempt to escape confinement in the supervised electronic confinement program, while being a convicted felon (§ 4532, subd. (b)(1); count 1) and (2) grand theft of an in-home monitor and ankle transmitter, property of Sentinel Offender Services (§ 487, subd. (a); count 2).
In July 2005, defendant pled guilty to count 2, grand theft. The trial court sentenced defendant to 16 months in state prison and dismissed count 1. During the plea hearing, the parties stipulated to, and the court ordered defendant to pay $2,320 in restitution to Sentinel Offender Services. The prosecutor explained that the $2,320 in restitution was for an "ankle bracelet hookup," which defendant had attempted to remove. Defendant also agreed to payment of this restitution in a felony plea form. The felony plea form stated defendant "will pay restitution of $2,320.00" and "REST STIP $2,320.00 Professional Sentinel Services."
On May 24, 2016, defendant filed a form application for reduction of her felony conviction for grand theft to a misdemeanor under section 1170.18, subdivision (f) (application). Defendant checked the box that stated: "Defendant believes the value of the check or property does not exceed $950." The People filed a form response stating that defendant was not entitled to the relief requested because defendant's grand theft offense was not a qualifying felony. The response further stated: "Per plea form, restitution was stipulated at $2,320.00 so over $950." Without conducting a hearing, on June 20, 2016, the trial court denied defendant's application. The court stated in its order the application was denied because "loss over 950.00. See Plea form." Defendant filed a notice and amended notice of appeal of the June 20, 2016 order.
III
APPLICATION FOR REDUCTION OF FELONY TO MISDEMEANOR
The record on appeal does not support a challenge to the trial court's order denying defendant's petition for redesignation because defendant did not meet her burden of showing her felony grand theft offense was eligible for reduction to misdemeanor theft. The record shows the stolen property exceeded $950.
"'On November 4, 2014, the voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47), which went into effect the next day. [Citation.]' [Citation.] Section 1170.18 'was enacted as part of Proposition 47.' [Citation.] Section 1170.18 provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in subdivision (a) of 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.' [Citation.]" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2 (T.W.).)
"Section 1170.18, subdivision (a) provides: 'A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .'" (T.W., supra, 236 Cal.App.4th at p. 651, italics omitted.)
"[S]ection 1170.18 clearly and unambiguously states, 'A person currently serving a sentence for a conviction, whether by trial or plea' of eligible felonies may petition for resentencing to a misdemeanor. [Citation.]" (T.W., supra, 236 Cal.App.4th at p. 652, italics omitted.) "After a petitioner is found to be eligible, the trial court must grant the petition for reduction of sentence unless the court finds in its discretion that the petitioner poses an unreasonable risk of committing a very serious crime. [Citation.]" (Ibid.)
Similarly, a defendant who has completed a sentence for a crime may file an application under Proposition 47 to reduce his or her felony conviction to a misdemeanor (§ 1170.18, subd. (f)). Subdivision (g) of section 1170.18 provides: "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
We review the trial court's construction of Proposition 47 de novo, and its findings of fact in connection with the petition for substantial evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow (2015) 239 Cal.App.4th 875, 879.) "In a successful petition, the offender must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. [Citations.] The defendant must attach information or evidence necessary to enable the court to determine eligibility." (Perkins, at pp. 136-137.) Thus, defendant had the burden of proving the value of the stolen property met the statutory requirement for reclassification of her offense. She failed to meet her burden.
Furthermore, the record of conviction establishes that the value of the property at issue exceeded $950. The felony plea form and reporter's transcript of the plea hearing reflect that defendant was ordered to pay $2,320 in restitution to the owner of the property that was the subject of defendant's grand theft conviction. Because the property at issue exceeded $950, defendant's grand theft felony conviction does not qualify for reduction under Proposition 47.
IV
DISPOSITION
We conclude based on our independent review pursuant to Wende and Anders that there are no arguable appellate issues for our review. The trial court order denying defendant's application for reduction of her felony conviction to a misdemeanor is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. McKINSTER
J.