Opinion
E068750
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN PEREZ, Defendant and Appellant.
William Hassler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF10003945) OPINION APPEAL from the Superior Court of Riverside County. Richard T. Fields, Judge. Affirmed. William Hassler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Juan Perez appeals from an order denying his petition to reduce his robbery conviction to a misdemeanor pursuant to Penal Code section 1170.18. We affirm the order.
All further statutory references will be to the Penal Code, unless otherwise noted.
FACTS AND PROCEDURE
In August and September of 2010, defendant robbed three people. His take included two cell phones and a tube of lip balm.
On August 30, 2010, the People filed a complaint charging defendant with three counts of robbery (§ 211) and one count of active participation in a street gang (§ 186.22, subd. (a)). As to two of the robbery counts, the People alleged defendant committed the offense for the benefit of a street gang. (§ 186.22, subd. (b).) As to all three of the robbery counts, the People alleged defendant committed the offense while personally using a firearm. (§ 12022.53, subd. (b).)
On June 7, 2011, defendant pled guilty to one count of robbery and admitted the allegation that he personally used a firearm.
The abstract of judgment shows the firearm allegation as the only enhancement. However, at sentencing the court imposed but stayed a 10-year term for a gang enhancement.
On July 6, 2011, the court sentenced defendant as agreed to the upper term of five years for the robbery and 10 years for the firearm enhancement, for a total of 15 years in prison. The court also imposed and then struck a 10-year street gang enhancement.
On November 4, 2014, voters enacted Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "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)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 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." (Id. at p. 1092.)
On April 3, 2017, defendant filed a petition for resentencing pursuant to Proposition 47, in propria persona. On May 23, the People responded that defendant was not entitled to the relief requested because: "Not a qualifying felony. 211 [with sections] 186.22 & 12022.53(b)." On June 13, 2017, the court determined that defendant's charge did not qualify for relief under Proposition 47 and denied the petition on the ground that "PC 211 is not a qualifying felony."
Defendant appealed.
DISCUSSION
Upon defendant's request, this court appointed counsel to represent him in this appeal. Counsel has filed a brief under the authority of 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 one potential arguable issue: whether the court erred in denying defendant's petition for resentencing under Proposition 47. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Defendant appears to argue: (1) the firearm enhancement is invalid because it was not found true by a jury; and (2) the robbery conviction was invalid as a felony because its status as a nonmisdemeanor was based on factors not found true by a jury. The time to appeal the conviction itself, as opposed to the denial of his petition under section 1170.18, has long since passed. (Calif. Rules of Court, Rule 8.308, subd. (a)) Therefore, we are without jurisdiction to consider these points. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The court's order denying the petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
J.