Opinion
B229300
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. PERCY WILSON, Defendant and Appellant.
Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA112812)
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed.
Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Percy Wilson, appeals the judgment entered following his conviction for burglary and petty theft with prior theft-related convictions, and with enhancements for prior prison terms (Pen. Code, §§ 459, 484/666, 667.5). He was sentenced to state prison for a term of four years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Given the nature of Wilson's claims, there is no need for a detailed statement of facts. He was convicted for stealing items from a house which was unoccupied and undergoing renovations.
CONTENTIONS
1. The trial court improperly denied probation.
2. There was Pitchess error.
DISCUSSION
1. Trial court did not improperly deny probation.
Wilson contends the trial court improperly denied him probation because the record shows the court misunderstood the scope of its sentencing authority. He argues the trial court did not realize that, because the convictions were for wobblers, i.e., offenses punishable either as felonies or misdemeanors, probation was an available sentencing option. This claim is meritless.
"The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.] Applying these rules . . . requires the appellant to affirmatively demonstrate that the trial court misunderstood its sentencing discretion. Where, as here, the record is completely silent, that burden has not been sustained." (People v. Davis (1996) 50 Cal.App.4th 168, 172.) "In the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law.' " (People v. Thomas (2011) 52 Cal.4th 336, 361.)
At the sentencing hearing, the prosecution proposed striking a very old felony conviction which had been used as a Three Strikes prior, and then said: "The People are asking for high term on count 1 with one of the prison priors, four years state prison and then to have count 3 run concurrent to count 1." In response, defense counsel urged the trial court to impose "some sort of probation," to which the court said: "I am prohibited from granting probation in this matter. This is a felony that requires state prison because of the priors and I have no alternative."
We conclude the record here does not affirmatively demonstrate the trial court misunderstood its sentencing discretion. Rather, the record impliedly indicates the trial court made a conscious decision to sentence the convictions as felonies, thereby prohibiting the imposition of probation.
Under section 17, subdivision (b)(1), an offense punishable in the trial court's discretion as either a misdemeanor or a felony is regarded as a felony for every purpose until judgment. "It is clear . . . the commission of a wobbler is a felony at the time it is committed and remains a felony unless and until the principal is convicted and sentenced to something less than imprisonment in state prison (or the crime is otherwise characterized as a misdemeanor)." (People v. Moomey (2011) 194 Cal.App.4th 850, 857.)
Wilson never asked the trial court to reduce his convictions to misdemeanors. On the other hand, the prosecution asked the court to impose felony sentences and that is what the trial court did. Hence, the convictions were determined to be felonies and, because Wilson had a qualifying prior conviction, probation was not an option. (See § 667, subds. (c)(2), (d).) The trial court did not misunderstand its sentencing options.
2. Review of in camera Pitchess hearing.
Robertson requests review of the trial court's ruling on his motion seeking discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Review of the in camera hearing by this court reveals no abuse of the trial court's discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
KITCHING, J.
ALDRICH, J.