People v. Hove CA4/2 ( 2016 )

Filed 3/1/16 P. v. Hove CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063911
v. (Super.Ct.No. FWV1402020)
LISA LYNN HOVE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Stanford E.
Reichert, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant Lisa Hove appeals from the denial of her petition for resentencing
under Proposition 47. We affirm because neither the conviction in the current case, nor
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the conviction upon which the sentence enhancement in the current case is based, are
eligible for reduction to misdemeanors under Proposition 47.
PROCEDURAL BACKGROUND
On September 5, 2014, defendant pled no contest to sale/transportation/offer to
sell a controlled substance (Health & Saf. Code, § 11352, subd. (a))1 and admitted that
she had previously been convicted of possession for sale (§ 11351) within the meaning of
section 11370.2, subdivision (a). The trial court sentenced defendant as agreed to a total
of seven years as follows: the midterm of four years for the conviction and the midterm
of three years for the enhancement, to be served consecutively.
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: [Penal Code] section 1170.18. Under [Penal Code] 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
1 All section references are to the Health and Safety Code unless otherwise
indicated.
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resentencing in accordance with the statutes that were added or amended by Proposition
47.” (Id. at p. 1092; see Pen. Code, § 1170.18, subd. (a).)
On November 19, 2014, defendant filed with the superior court a letter which the
court interpreted as a petition for reduction of sentence under Proposition 47. On
December 5, 2014, the court denied the petition on the ground that the conviction does
not come within the statutory scheme of Proposition 47.
On May 13, 2015, the court held another hearing at which defendant was present,
represented by counsel. As counsel explained, defendant had other prior convictions
reduced to misdemeanors under Proposition 47 and believed these reductions would
impact the three-year enhancement to her current sentence. The court ruled that
defendant was ineligible for relief.
This appeal followed.
DISCUSSION
Upon defendant’s request, this court appointed counsel to represent her. 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, a summary of the
facts, and a potential arguable issue, and requesting this court to undertake a review of
the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but she
has not done so. In appellate counsel’s brief before this court, counsel argues as a
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potential issue whether the trial court erred in denying defendant’s petition for
resentencing under Proposition 47.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no error. (See Pen. Code,
§ 1170.18 [convictions under sections 11351 and 11352 are not statutorily enumerated
offenses qualifying for reduction from felonies to misdemeanors].)
DISPOSITION
The superior court’s order denying defendant’s Proposition 47 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
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