Filed 3/28/16 P. v. Prasad 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064377

v.                                                                      (Super.Ct.No. RIF134386)

DHARMENDRA PRASAD,                                                      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, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
         Defendant and appellant Dharmendra Prasad appeals from an order denying

his petition to reduce his conviction to a misdemeanor, pursuant to Penal Code

section 1170.18.1 We find no error and will affirm the order.

                               PROCEDURAL BACKGROUND

         On April 30, 2007, defendant was charged by amended information with two

counts of making criminal threats (§ 422, counts 1 & 2), and two counts of assault with a

deadly weapon (§ 245, subd. (a)(1), counts 3 & 4). As to counts 1 and 2, the information

alleged that defendant personally used a deadly weapon. (§§ 12022, subd. (b)(1), 1192.7,

subd. (c)(23).) The information also alleged that he had served one prior prison term.

(§ 667.5, subd. (b).) On August 16, 2007, a jury found defendant guilty of count 1, but

found the firearm enhancement not true. The jury acquitted defendant on counts 2 and 4.

On count 3, the jury found him guilty of the lesser included offense of misdemeanor

battery. (§ 242.) At a bifurcated hearing, a trial court found the prior prison term

allegation not true.

         At the sentencing hearing on September 21, 2007, the court denied defendant’s

oral motions for new trial and to reduce his charges. The court sentenced him to the

midterm of two years on count 1 and a concurrent term of 180 days on count 3, with

credit for time served. The court noted that the credit for time served clearly exceeded

the time of defendant’s commitment.



         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


                                                2
       In November 2014, California voters approved Proposition 47, the Safe

Neighborhoods and Schools Act, which became effective November 5, 2014.

(§1170.18.) “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:

section 1170.18. 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.” (Id. at p. 1092.)

       On January 13, 2015, defendant filed, in propria persona, a petition for

resentencing under section 1170.18. He asserted that he was convicted on September 21,

2007 of a violation of section 422 (making criminal threats), which “has now been made

a misdemeanor pursuant to Proposition 47.” He further stated that he was currently

serving a sentence at the California Medical Facility for petty theft (§ 666), and that he

had also been convicted of two other felonies: “Penal Code § VC10801 [sic], Date 9-29-

95, Case No: 95WF1183” and “Penal Code § VC10851(A), Date 12-29-97, Case

No. 98WF0001.”

       On July 16, 2015, the court denied the Proposition 47 petition, on the ground that

making criminal threats (§ 422) was not a qualifying felony.




                                              3
                                      DISCUSSION

       Defendant appealed and, upon his request, this court appointed counsel to

represent him. 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 and a few potential arguable issues: (1) whether defendant’s conviction of

criminal threats (Pen. Code, § 422) qualifies for resentencing under Penal Code section

1170.18, subdivision (a), or reclassification under Penal Code section 1170.18,

subdivision (f); (2) whether the court considering defendant’s Proposition 47 petition was

required and authorized to sua sponte consider whether to reduce his other conviction

under Penal Code section 666 to a misdemeanor; (3) while this appeal is pending,

whether this court has jurisdiction and authority to designate a qualifying current

conviction for violating Penal Code section 666 as a misdemeanor; (4) while this appeal

is pending, whether this court has jurisdiction and authority to designate prior convictions

for violating Vehicle Code section 10851 as misdemeanors; and (5) if this court lacks

jurisdiction and authority to consider whether the convictions under Penal Code section

666 and Vehicle Code section 10851 should be resentenced and/or reclassified as

misdemeanors, should the current matter on the conviction for making criminal threats

(Pen. Code, § 422) be remanded with directions to allow defendant to pursue a properly

filed petition. Counsel has also requested this court to undertake a review of the entire

record.

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

he has not done.


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

conducted an independent review of the record and find no arguable issues.

                                    DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                             HOLLENHORST
                                                                       Acting P. J.


We concur:


McKINSTER
                         J.


MILLER
                         J.




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