Filed 7/24/15 P. v. Hamilton 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062811

v.                                                                       (Super.Ct.No. SWF10002383)

MICHAEL ANTHONY HAMILTON,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Sylvia W. Beckham, under appointment by the Court of Appeal; Michael Anthony

Hamilton, in pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Michael Anthony Hamilton appeals from an order

denying his petition to reduce his current conviction for unlawful possession of a deadly




                                                             1
weapon on a college campus (Pen. Code,1 § 626.10, subd. (b)) under section 1170.18.

We find no error and will affirm the order.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

       On December 6, 2010, a felony complaint was filed charging defendant with

unlawful possession of a deadly weapon (a dirk, dagger, ice pick, razor with an

unguarded blade, or a knife with a blade longer than two and a half inches) upon a

college campus (Pen. Code, § 626.10, subd. (b); count 1), and unlawful possession of

methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2).

       The complaint further alleged that defendant had suffered one prior strike

conviction, to wit, making criminal threats (§§ 422, 667, subds. (c) & (e)(1), 1170.12,

subd. (c)(1)), and had served seven prior prison terms (§ 667.5, subd. (b)). The alleged

seven prior prison terms were for the following felony convictions: (1) a 2002 conviction

for possession of an illegal weapon (Pen. Code, § 12020, subd. (a)(1)) (prior offense 1);

a 1999 conviction for possession of a controlled substance (Health & Saf. Code, § 11377,

subd. (a)) (prior offense 2); (3) a 1997 conviction for making criminal threats (Pen. Code,

§ 422) (prior offense 3); (4) a 1996 conviction for assault with a deadly weapon (§ 245,

subd. (a)(1)) (prior offense 4); (5) a 1993 conviction for possession of an illegal weapon

(Pen. Code, § 12020, subd. (a)(1)) (prior offense 5); (6) a 1992 conviction for unlawfully

taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) (prior offense 6); and

       1   All further statutory references are to the Penal Code unless otherwise stated.



                                               2
(7) a 1988 for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a))

(prior offense 7).

       On December 10, 2010, pursuant to a negotiated plea agreement, defendant pled

guilty to section 626.10, subdivision (b) (count 1). He also admitted that he had suffered

one prior strike conviction and had served four prior prison terms. In return, the

remaining charges and allegations were dismissed, and defendant was sentenced as

follows: two years eight months for the substantive offense (count 1); four one-year

consecutive terms for the prior prison term enhancements; for a total term of six years

eight months in state prison, with credit for time served.

       On November 4, 2014, voters enacted Proposition 47, entitled the Safe

Neighborhoods and Schools Act, which went into effect the next day. (Cal. Const., art.

II, § 10, subd. (a).) As of its effective date, Proposition 47 classified as misdemeanors

certain drug- and theft-related offenses that previously were felonies or “wobblers,”

unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).)

       On November 10, 2014, defendant, in propria persona, filed a letter in the trial

court requesting the court reduce his current conviction to a misdemeanor and resentence

him pursuant to Proposition 47 or section 1170.18.

       On January 6, 2015, the trial court denied defendant’s purported petition, finding

that his current offense for unlawful possession of a deadly weapon on a college campus

(§ 626.10, subd. (b)), was not a qualifying felony.

       On January 28, 2015, defendant filed a timely notice of appeal from the order

denying his purported petition to reduce his current conviction to a misdemeanor.


                                             3
                                              II

                                       DISCUSSION

       After defendant appealed, upon his request, this court appointed counsel to

represent him on appeal. 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 potential arguable issues, and

requesting this court conduct an independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. In his two-page supplemental letter, defendant acknowledges that his

current offense for unlawful possession of a deadly weapon on a college campus does not

meet the criteria for Proposition 47 relief. He, however, asserts that the trial court should

have reduced his prior prison offense (possession of a controlled substance; Health & Saf.

Code, § 11377, subd. (a)) to a misdemeanor, as that offense meets the criteria under

Proposition 47. He also argues that the prior offense enhancement should therefore be

removed from his current case and his sentence reduced to five years eight months.

       As noted ante, 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). “Proposition 47 (1) added

chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2,

and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and




                                              4
666 and Health and Safety Code sections 11350, 11357, and 11377.” (People v. Rivera

(2015) 233 Cal.App.4th 1085, 1091.)

       However, the enumerated felonies may not be reduced to misdemeanors when

the accused has sustained a specified prior violent or serious felony conviction. These prior

violent or serious felony convictions are set forth in section 667, subdivision (e)(2)(C)(iv).

(§ 1170.18, subd. (i).)

       Proposition 47 also created a new resentencing provision, section 1170.18, under

which certain individuals may petition the superior court for a recall of sentence and

request resentencing. (§ 1170.18, subd. (a).) Under 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 resentencing in accordance with

the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A

person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled

and be “resentenced to a misdemeanor . . . unless the court, in its discretion, determines

that resentencing the petitioner would pose an unreasonable risk of danger to public

safety.” (§ 1170.18, subd. (b).)

       Section 1170.18 also provides that if a defendant has completed his or her

sentence for an eligible conviction, an application must be filed to secure the reduction to

a misdemeanor. Section 1170.18, subdivisions (f) through (g), specifies that a defendant

must file an application, and it describes a procedure for the trial court to make its ruling.




                                              5
       Section 1170.18, subdivision (f), states: “A person who has completed his or her

sentence for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under this act had this act been in effect at the time of

the offense, may file an application before the trial court that entered the judgment of

conviction in his or her case to have the felony conviction or convictions designated as

misdemeanors.” (Italics added.)

       Upon the filing of the application by an eligible defendant, the trial court is

required to reduce the felony offense or offenses to a misdemeanor. 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.” Unless the defendant

requests otherwise, no hearing is necessary in order to rule upon the application filed

under section 1170.18, subdivision (f). (§ 1170.18, subd. (h).)

       Defendant here falls under section 1170.18, subdivisions (f) through (h), in regard

to his prior drug possession conviction. If defendant filed an application today before the

trial court that entered his drug possession conviction, the trial court would be duty bound

to grant it. However, neither the trial court nor this court has the authority to sua sponte

grant defendant relief to reduce his drug possession conviction to a misdemeanor.

       First, defendant never filed an application to reduce his drug possession conviction

before the trial court that entered his drug possession conviction. Second, as the Court of

Appeal in People v. Shabazz (2015) 237 Cal.App.4th 303, at page 313, recently held:

“The plain meaning of the language in section 1170.18 is this—the voters never intended

that Proposition 47 would automatically apply to allow us to reduce defendant’s . . .


                                               6
felonies to . . . misdemeanor[s]. Rather, the voters set forth specific procedures for

securing the lesser punishment to eligible persons such as defendant. These are the sole

remedies available under Proposition 47 for an accused sentenced prior to its effective

date. For a convicted felon who has served his or her sentence, the electors specified an

application must be filed pursuant to section 1170.18, subdivision (f). Section 1170.18,

subdivision (f) requires that an application be filed and resolved in the trial court. In

other words, Proposition 47 does not apply retroactively so as to permit us to modify the

judgment and then direct that, upon remittitur issuance, defendant’s convictions be

designated misdemeanors. Defendant is limited to the statutory remedy set forth in

section 1170.18, subdivision (f). He must file an application in the trial court [that

entered the judgment of conviction] to have his felony convictions designated

misdemeanors. [Citation.]” (Id. at pp. 313-314, citing People v. Noyan (2014) 232

Cal.App.4th 657, 672.)

       Moreover, “the electorate expressed its anticipation that a thorough review of

criminal history and risk assessment of all convicted felons be conducted before potential

resentencing. And, the electorate made clear that the initiative’s reduction of certain

sentences to misdemeanors had no application when the accused had prior convictions for

specified violent or serious crimes.” (Shabazz, supra, 237 Cal.App.4th at p. 314, citing

Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.)

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.


                                              7
                                            III

                                     DISPOSITION

       The trial court’s order denying defendant’s Proposition 47 petition for recall and

resentencing is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                               Acting P. J.
We concur:



KING
                            J.



MILLER
                            J.




                                             8
