People v. Felix CA6 ( 2016 )

Filed 2/8/16 P. v. Felix CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H042334
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS101586)
v.
ENRIQUE FELIX,
Defendant and Appellant.
Defendant Enrique Feliz appeals following the trial court’s denial of his
Proposition 47 petition requesting that he be resentenced on his conviction for possession
of methamphetamine (Health & Saf. Code, § 11377) as a misdemeanor. (Pen. Code,
§ 1170.18, subd. (f).) Defendant asserts that the trial court erred in denying his petition,
because simple possession of methamphetamine is eligible for resentencing as a
misdemeanor under Proposition 47. The Attorney General concedes the issue, and
requests that the judgment be reversed, and the matter remanded to the trial court for
resentencing.
STATEMENT OF THE CASE1
On August 26, 2010, in Monterey County, appellant was charged with possession
of methamphetamine for sale with a gang enhancement (Health & Saf. Code § 11378;
1
The underlying facts are omitted because they are not relevant to the issue on
appeal, and they are not included in the record before us.
Pen. Code, § 186.22, subd. (b)(1)), simple possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a)), and street terrorism (Pen. Code, § 186.22, subd. (a)). The
information also alleged appellant had two prison priors (Pen. Code, § 667.5, subd. (b)).
On June 10, 2011, defendant pleaded guilty to all counts and, as to count 1,
admitted the criminal street gang and prior prison term allegations. Defendant was
sentenced to nine years in state prison, execution suspended, and was placed on
probation.
On November 7, 2012, the trial court found defendant was in violation of
probation. Defendant’s probation was terminated, and the trial court ordered defendant to
serve the suspended nine-year term in state prison.
On April 10, 2015, defendant filed a petition seeking a reduction of his possession
of methamphetamine conviction to a misdemeanor under Penal Code section 1170.18,
subdivision (a). The trial court denied defendant’s petition, and he brought this appeal.
DISCUSSION
Defendant argues, and the Attorney General concedes that the trial court erred
when it denied defendant’s petition for resentencing of his conviction for simple
possession of methamphetamine. We accept the Attorney General’s concession.
Penal Code section 1170.18, subdivision (a), added to the Penal Code by
Proposition 47, states in relevant part: “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 . . . 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 in
accordance with Section[] . . . 11377 of the Health and Safety Code . . . as [that section
has] been amended . . . by this act.”
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Here, defendant was convicted of simple possession of methamphetamine
pursuant to Health and Safety Code section 11377. Had Proposition 47 been in effect at
the time of his conviction, defendant’s violation of Health and Safety Code section 11377
would have been a misdemeanor. Moreover, Penal Code section 1170.18, subdivision (g)
states: “If the application satisfies the criteria in subdivision (f), the court shall designate
the felony offense or offenses as a misdemeanor.”
Defendant was eligible for resentencing of his conviction as a misdemeanor under
Penal Code section 1170.18, subdivision (a), and the trial court erred in denying his
petition.
DISPOSITION
The judgment is reversed and remanded. The trial court is directed to grant
defendant’s petition under Penal Code section 1170.18, subdivision (a), and resentence
defendant for violating Health and Safety Code section 11377, subdivision (a), as a
misdemeanor.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
MÁRQUEZ, J.
____________________________________
GROVER, J.
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