People v. Ruiz CA5 ( 2022 )

Filed 1/24/22 P. v. Ruiz CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080311
Plaintiff and Respondent,
(Fresno Super. Ct. No. F08903937)
v.
ALEJANDRO RUIZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B.
Conklin, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Meehan, J.
INTRODUCTION
Appellant Alejandro Ruiz filed a petition to reduce his felony conviction for
violating Vehicle Code section 2800.2, subdivision (a),1 evading an officer with willful
and wanton disregard for safety, to a misdemeanor. The court denied relief because his
offense was not eligible for resentencing pursuant to the provisions of Proposition 47 and
Penal Code section 1170.18.2 On appeal, his appellate counsel has filed a brief that
summarizes the facts with citations to the record, raises no issues, and asks this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
FACTS3
Around 2:30 a.m. on June 13, 2008, officers with the California Highway Patrol
observed appellant traveling on his motorcycle and going through a stoplight. The
officers activated the siren and lights on their patrol car and attempted to conduct a traffic
stop. Appellant failed to pull over, and instead, accelerated to 70 miles per hour in a 50-
mile an hour zone and drove through another red light. Appellant continued to evade the
officers and reached speeds of 70 and 80 miles per hour, in a zone marked at 50 miles per
hour.
Appellant turned into a residential area and went overspeed bumps at 40 miles an
hour, and a second set of bumps at 30 miles an hour; the speed limit was 10 miles per
hour. He drove through a stop sign, continued for two more miles, and eventually pulled
into the driveway and parked at his residence.
1All further citations to “section 2800.2” are to the statute contained in the
Vehicle Code.
2 All further citations to “section 1170.18” are to the statute in the Penal Code.
3 It appears a preliminary hearing was held but the transcript is not included in the
appellate record. At the plea hearing, the parties stipulated to the police reports for the
factual basis of the plea. The following facts are from the police reports, as quoted in the
probation report.
2.
Appellant was arrested and taken into custody. His eyes were red and watery, his
speech was slurred, and the officers could smell the strong odor of alcohol. Appellant’s
license was suspended, and his blood-alcohol content was 0.09 percent.
PROCEDURAL BACKGROUND
On June 16, 2008, a complaint was filed in the Superior Court of Fresno County
charging appellant with count 1, felony evading an officer with willful and wanton
disregard for safety (§ 2800.2, subd. (a)); count 2, misdemeanor driving under the
influence (Veh. Code, 23152, subd. (a)); count 3, misdemeanor driving with a blood-
alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)); and count 4,
misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601.5,
subd. (a)). Appellant pleaded not guilty.
On August 1, 2008, appellant was held to answer. On August 13, 2008, an
information was filed that charged appellant with the same four counts.
Plea Proceedings
On September 18, 2008, appellant signed a change-of-plea form and pleaded no
contest to felony count 1, felony evading with willful and wanton disregard, and
misdemeanor counts 3 and 4, as charged in the information. The parties stipulated that
appellant’s blood-alcohol content was 0.09 percent. The court granted the People’s
motion to dismiss count 2 and an unrelated misdemeanor case.
Sentencing Hearing
On October 17, 2008, the court suspended sentence for felony count 1, and placed
appellant on three years of formal probation subject to certain terms and conditions. The
court revoked appellant’s driver’s license. The court advised appellant: “If you drink
and drive in the future, become involved in an incident where a person is killed, you
could be prosecuted for murder. Do you understand that?” Appellant said that he
understood.
3.
PROPOSITION 47
Proposition 47 was approved in November 2014, and “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 added … section
1170.18, which permits those previously convicted of felony offenses that Proposition 47
reduced to misdemeanors to petition to have such felony convictions resentenced or
redesignated as misdemeanors.” (People v. Buycks (2018) 5 Cal.5th 857, 870–871, fn.
omitted.)
“The ultimate burden of proving section 1170.18 eligibility lies with the petitioner.
[Citation.]” (People v. Romanowski (2017) 2 Cal.5th 903, 916.) In reviewing a section
1170.18 petition, “the court has no obligation to hold an evidentiary hearing where the
petitioner’s eligibility or ineligibility for relief is evident as a matter of law ….” (People
v. Simms (2018) 23 Cal.App.5th 987, 993.) “In many cases, the threshold issue of
eligibility for relief … may be determined as a matter of law from the uncontested
allegations of the petition or from the record of conviction. [Citations.]” (Ibid.)
Appellant’s Petitions
At some point prior to January 30, 2018, appellant filed a petition with the
superior court to reduce his felony conviction to a misdemeanor based on the enactment
of Proposition 47, although the petition is not before this court. On January 30, 2018, the
superior court denied the petition and found his felony conviction for violating
section 2800.2, subdivision (a), was not eligible for reduction to a misdemeanor.
On September 9, 2019, appellant filed another petition for the superior court to
reduce his felony violation of section 2800.2, subdivision (a) to a misdemeanor pursuant
to the provisions of section 1170.18 and Proposition 47.
4.
On October 2, 2019, the court again denied the petition, found appellant’s felony
conviction was not an offense eligible for reduction to a misdemeanor under
section 1170.18, and stated that “no further Prop. 47 requests shall be considered.”
On November 13, 2019, appellant filed a notice of appeal from the court’s order of
October 2, 2019.
DISCUSSION
As noted above, appellant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on February 28, 2020, we
invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist. 4
DISPOSITION
The court’s order of October 2, 2019, denying appellant’s petition for
resentencing, is affirmed.
4It is undisputed that appellant was convicted of a felony violation of section
2800.2, subdivision (a). Appellant’s conviction was for an offense which is not one of
the enumerated statutes eligible for recall in section 1170.18, and a felony conviction
remains unaffected by Proposition 47.
5.