Filed 8/22/16 P. v. Been CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042297
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1139396)

         v.

ANDREW JAMES BEEN,

         Defendant and Appellant.



         Defendant Andrew James Been appeals from the trial court’s order granting his
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petition under Penal Code section 1170.18 and redesignating as a misdemeanor his
conviction for violating Health and Safety Code section 11377. He contends that
section 1170.18 did not apply to him because he was on probation with imposition of
sentence suspended. His argument is that he was entitled to retroactive application of
Proposition 47 to his offense so that he would not be subject to the firearm prohibition
that follows from a felony conviction even after it is redesignated as a misdemeanor
under section 1170.18. We reject his contention and affirm the court’s order.




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         Subsequent statutory references are to the Penal Code unless otherwise specified.
                                     I. Background
       In August 2011, defendant was charged by felony complaint with felony
possession of ecstasy for sale, a violation of Health and Safety Code section 11378. In
March 2012, defendant entered into a plea agreement. He agreed to plead no contest to
felony possession of ecstasy, a violation of Health and Safety Code section 11377, in
exchange for a grant of probation. As part of his plea agreement, he acknowledged that,
as a result of his plea, “I cannot own, control, or have in my custody any firearm or
ammunition for the rest of my life.” In April 2012, the court suspended imposition of
sentence and placed defendant on probation for three years.
       At an April 2015 hearing, defendant admitted allegations that he had violated his
probation multiple times in 2013. He also submitted a petition for resentencing or
redesignation of his offense as a misdemeanor under section 1170.18. The prosecution
stipulated that he was eligible for resentencing or redesignation. The court revoked
defendant’s probation, sentenced him to a county jail sentence equal to his credit for time
served, and redesignated his offense as a misdemeanor. His trial counsel interposed “an
objection as to the process of the petition violating my client’s Second Amendment
rights.” Defendant timely filed a notice of appeal from the court’s order and obtained a
certificate of probable cause.


                                       II. Analysis
       Defendant contends that, because he was on probation, he “was not yet sentenced”
and therefore section 1170.18 “did not apply to him.” We recently rejected this
contention and held that section 1170.18 “appl[ies] to all those with felony dispositions,
including those placed on probation . . . .” (People v. Garcia (2016) 245 Cal.App.4th
555, 559 (Garcia).) Garcia had a different procedural posture from this case, but our
construction of section 1170.18 in Garcia is fully applicable to this case. Indeed, the
First District Court of Appeal recently came to the same conclusion in a case with the

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very same procedural posture as this one. (People v. Davis (2016) 246 Cal.App.4th 127,
review granted July 13, 2016, S234324 (Davis).) We agree with the reasoning in Garcia
and Davis. Consequently, we reject defendant’s contention.


                                   III. Disposition
      The order is affirmed.




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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




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