Filed 6/5/15 P. v. Carevic 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E062541

v.                                                                       (Super.Ct.No. FVI1401061)

VICTOR RICHARD CAREVIC,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed with directions.

         Loleena Ansari, under appointment by the Court of Appeal; and Victor Richard

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

         No appearance for Plaintiff and Respondent.




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         Defendant and appellant Victor Richard Carevic was charged by information with

three counts of second degree commercial burglary (Pen. Code,1 § 459, counts 1-3),

grand theft (§ 484g, subd. (a), count 4), assault upon a peace officer (§ 245, subd. (c),

count 5), and receiving stolen property (§ 496, subd. (a), count 6). The information also

alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)) and had one

prior strike conviction (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i)). The People

subsequently moved to orally amend the information to include battery on a peace officer

(§ 243, subd. (c)(1), count 7) and attempted grand theft (§§ 664/487, subd. (a), count 8).

Pursuant to a plea agreement, defendant pled no contest to counts 7 and 8 and admitted

the prior strike conviction. The parties stipulated that there was a factual basis for the

plea. The court immediately sentenced defendant to the agreed upon term of six years

eight months in state prison, which consisted of three years on count 7 and four months

on count 8, doubled pursuant to the prior strike.

         On December 11, 2014, defendant filed a notice of appeal, challenging the validity

of the plea, and requested a certificate of probable cause, which the court denied. On

December 23, 2014, defendant filed an amended notice of appeal, based on the sentence

or other matters occurring after the plea. We remand the matter with instructions

regarding the dismissal of counts 1 through 6 and the section 667.5, subdivision (b)

allegations. Otherwise, we affirm the judgment.



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


                                                2
                             PROCEDURAL BACKGROUND2

       Officer Gregory Gary responded to a residential burglary call on March 14, 2014.

The resident’s name was Angela Garcia. The back window of her house had been pried

open. Garcia told Officer Gary that her credit card was stolen and had been used six to

eight times throughout Southern California, without her authorization. Officer Gary went

to a store where Garcia’s card had been used, and observed defendant in surveillance

video footage using her card.

       On March 19, 2014, Officer Gary was driving in his personal vehicle when he

observed defendant in the vehicle next to him, at an intersection. He recognized

defendant from the surveillance video footage. Officer Gary turned left, and so did

defendant. Defendant got in the lane directly behind Officer Gary. When they reached a

red light, Officer Gary got out of his vehicle and walked up to the driver’s side of

defendant’s car. He identified himself as an officer and asked for identification.

Defendant said he did not have any. Officer Gary asked him to exit his vehicle. At that

time, defendant turned the wheels in the officer’s direction and stepped on the

accelerator. Officer Gary quickly ran forward to avoid being hit by defendant’s vehicle.

                                        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


       2   This statement of facts is taken from the preliminary hearing transcript.


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the case and a few potential arguable issues: (1) whether his plea was constitutionally

valid; (2) whether the trial court complied with its duty under section 1192.5 to establish

a sufficient factual basis for the plea; (3) whether defendant was sentenced in accordance

with the plea agreement; and (4) whether the court complied with its duty under section

1009 when it allowed the information to be amended to include counts 7 and 8. 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 done. He filed two handwritten personal briefs. In his first brief, defendant

asserts that he entered his plea agreement before the passage of Proposition 47. He

claims that Proposition 47 reduced all of his charges, except one, to misdemeanors, and

that his counsel rendered him ineffective assistance of counsel (IAC) in that he should

have advised defendant to waive time to see the effects of Proposition 47 on his case.

Defendant states that, because his charges were reduced, he should not have pled. He

asserts that counts 2 through 6 were reduced to misdemeanors and asks this court to run

the eight months imposed on count 8 concurrent to the six years imposed on count 7. He

concludes that, pursuant to Proposition 47, “that 8 months and felony charge should be

reduced.” In an apparent attempt to clarify his request, defendant filed a second

handwritten letter, in which he asks this court to run the eight months concurrent to the

six years because his charges were reduced to misdemeanors, pursuant to Proposition 47.

Defendant’s claims and request are meritless.

       In November 2014, California voters approved Proposition 47. (People v.

Guzman (2015) 235 Cal.App.4th 847, 862.) “Proposition 47 makes certain drug- and


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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.)

       Defendant’s claim that Proposition 47 reduced all of his charges but one to

misdemeanors is false. Proposition 47 changed specified drug- and theft-related offenses

from felonies to misdemeanors. The sections amended or added by Proposition 47

include Penal Code sections 459.5, 473, 476a, 490.2, 496, and 666, as well as Health and

Safety Code sections 11350, 11357, and 11377. (Pen. Code, § 1170.18, subd. (a).) The

only one of defendant’s charges that falls within Proposition 47 is Penal Code section 496

(receiving stolen property). To the extent that defendant argues that his counsel should

have advised him to wait and see the effects of Proposition 47 on his case, rather than

enter the plea agreement, he cannot establish that his counsel provided IAC. A defendant

who claims IAC must establish that his counsel’s performance was deficient under an

objective standard of professional competency, and that there is a reasonable probability

that but for counsel’s errors, a more favorable determination would have resulted.

(People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient

showing on either one of these components, the claim fails. (Ibid.) Under the plea


                                             5
agreement, the court dismissed six counts and four prison priors, and sentenced defendant

to six years eight months on counts 7 and 8. Since Proposition 47 only would have

changed one of defendant’s charges to a misdemeanor, there is no reasonable probability

that, had his counsel advised him not to enter the plea agreement, he would have been

given a lesser total sentence on counts 1 through 5, 7, and 8, plus the strike conviction

and the four prison priors. His IAC claim fails.

       Defendant is apparently also asking this court to run the eight-month sentence

imposed on count 8 concurrent to the six years imposed on count 7, and to reduce count 8

to a misdemeanor, pursuant to Proposition 47. His offenses in counts 7 and 8 were

battery on a peace officer (§ 243, subd. (c)(1)) and attempted grand theft (§§ 664/487,

subd. (a)), respectively. Neither of these offenses fall within the purview of Proposition

47. (§ 1170.18, subd. (a).) Thus, defendant has given no valid reason for us to modify

his sentence.

       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.

       Although not raised as an issue by the parties, we note that the plea agreement did

not actually mention the dismissal of counts 1 through 6 or the prison prior allegations,

and neither the court nor the parties mentioned the counts or allegations at the plea and

sentencing hearing. The plea agreement stated that the information charged defendant

with three counts of second degree commercial burglary (§ 459), grand theft (§ 484g),

assault upon a peace officer (§ 245, subd. (c)), and receiving stolen property (§ 496,

subd. (a)). The information also alleged that defendant had served four prior prison terms


                                             6
(§ 667.5, subd. (b)) and had one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667,

subds. (b)-(i)). The information was subsequently orally amended to add battery on a

peace officer (§ 243, subd. (c)(1), count 7), and attempted grand theft (§§ 664/487,

subd. (a), count 8). The plea agreement stated that defendant desired to plead guilty to

the charges in counts 7 and 8, in exchange for six years eight months in state prison.

However, it did not state that counts 1 through 6 or the prison prior allegations were to be

dismissed. The court sentenced defendant to six years eight months, in accordance with

the plea agreement. His sentence was not enhanced by the prison priors. There was no

reference by the parties or the court to counts 1 through 6 or the prison priors at the

hearing.

       It appears that the parties intended counts 1 through 6 and the prison prior

allegations to be dismissed, since neither party objected to the court’s sentence.

However, as discussed, the court never actually dismissed these counts or enhancements.

Nonetheless, the minute order from the sentencing hearing reflects that, on motion of the

People and pursuant to the plea agreement, the court dismissed counts 1 through 6 and

struck the prison priors. In the interest of completeness and accuracy, we will remand the

cause for the People to add a term to the plea agreement, stating that counts 1 through 6

and the prison prior allegations are to be dismissed. (See § 1260 [reviewing court “may,

if proper, remand the cause to the trial court for such further proceedings as may be just

under the circumstances”].) We will also direct the trial court hold a hearing to enforce

the terms of the amended plea agreement.




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                                      DISPOSITION

       The matter is remanded for the People to add a term to the plea agreement to

dismiss counts 1 through 6 and the prison prior allegations. The trial court is directed to

hold a hearing to enforce the terms of the amended plea agreement. The superior court

clerk is directed to generate a new minute order reflecting this modification. In all other

respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


MILLER
                          J.


CODRINGTON
                          J.




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