Filed 6/7/16 P. v. Leyva CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B264249
                                                                            (Super. Ct. No. 1353962)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

MANUEL LEYVA,

     Defendant and Appellant.


                   Manuel Leyva appeals an order which vacated the granting of his
Proposition 47 petition (the Safe Neighborhoods and Streets Act) ("the Act").
(Pen. Code, § 1170.18.)1 We conclude the trial court properly vacated the order granting
that petition after it discovered that Leyva had previously been convicted of an offense
that made him ineligible for Proposition 47 relief. We affirm.
                                                        FACTS
                   In 2011, Leyva was convicted of second degree commercial burglary
(§ 459) and he was sentenced to a state prison term.
                   After the passage of Proposition 47 (§ 1170.18), Leyva filed a petition for
resentencing claiming that his 2011 felony conviction should be designated a
misdemeanor. The trial court granted his petition. It reduced his commercial burglary


1
    All statutory references are to the Penal Code unless otherwise stated.
conviction to a misdemeanor, resentenced him and ordered that he be released from
prison.
              Leyva was not released from prison. One week after the trial court granted
his Proposition 47 petition, it discovered that Leyva had been previously convicted of an
offense that requires registration as a sex offender. (§ 290.)
              The trial court found Leyva was ineligible for the Proposition 47 relief it
had granted. It issued an order stating, "[O]rder granting Prop. 47 relief and resentencing
under Prop. 47 is vacated; prison sentence is reinstated."
                                       DISCUSSION
                  Jurisdiction to Vacate the Proposition 47 Relief Order
              Leyva contends the trial court lacked jurisdiction to vacate the order that
had granted his Proposition 47 petition. We disagree.
              Proposition 47 "changed portions of the Penal Code and Health and Safety
Code to reduce various drug possession and theft-related offenses from felonies (or
wobblers) to misdemeanors, unless the offenses were committed by certain ineligible
offenders." (Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222.) The
Act has an exclusion provision for such ineligible offenders.
              The Act provides that a defendant may not petition for Proposition 47 relief
if he or she committed "an offense requiring registration pursuant to subdivision (c) of
section 290" as a sex offender. (§ 1170.18, subd. (i).)
              Here, after granting Leyva's Proposition 47 petition, the trial court
discovered that Leyva had been convicted of an offense that required registration under
section 290. The court consequently vacated the order granting the Proposition 47
petition.
              Leyva contends the trial court lacked jurisdiction to vacate that order or
change the misdemeanor sentence he received as a result of the granting of the
Proposition 47 petition. But Leyva was not eligible to file a petition under Proposition
47. When the court discovered his ineligibility, it properly vacated its prior order.
(People v. Amaya (2015) 239 Cal.App.4th 379, 382, 388.) " '[A] sentence is generally

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"unauthorized" where it could not lawfully be imposed under any circumstance in the
particular case.' " (Id. at p. 385.) Leyva was not entitled to designate his felony offense a
misdemeanor under Proposition 47. " '[A]n unauthorized sentence . . . is subject to being
set aside judicially and is no bar to the imposition of a proper judgment thereafter, even
though it is more severe than the original pronouncement.' " (Ibid.)
              In Amaya, the trial court granted the defendant's petition for resentencing
under Proposition 36. The court was unaware that the defendant had a prior "gang
allegation" which was "found true," but due to a mistake it was "not reflected in the
abstract of judgment." (People v. Amaya, supra, 239 Cal.App.4th at p. 381.)
Consequently, the defendant was ineligible for resentencing under Proposition 36. Upon
discovery of this fact, the court vacated its prior order. The Court of Appeal held the trial
court properly vacated its prior grant of Proposition 36 relief because "the court had no
power to grant" it. (Id. at p. 386.) The order granting Proposition 36 relief was void and
"could be set aside at any time." (Ibid.)
              That is what happened in this case. In his Proposition 47 petition, Leyva
stated under penalty of perjury that he had "not been convicted of an offense enumerated
in Penal Code section 290, subdivision (c)." As in Amaya, the trial court granted relief,
but subsequently discovered Leyva's ineligibility for resentencing. It could not allow him
to receive Proposition 47 relief after discovering Leyva's false representation about his
criminal history.
              Leyva contends Amaya is inconsistent with established case law. He claims
a trial court may not correct a sentence it previously imposed simply because it later
discovers it made a mistake or was "unaware of a disqualifying factor." We disagree.
              "An unauthorized sentence is ' "subject to judicial correction when it
ultimately [comes] to the attention of the trial court . . . ." ' " (People v. Cates (2009)
170 Cal.App.4th 545, 552.) In People v. Estrada (1963) 211 Cal.App.2d 722, the trial
court granted probation for a defendant who was ineligible for probation. The court later
discovered its mistake and set aside its prior sentence. The Court of Appeal affirmed.


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It held the trial court acted within its authority by setting aside the unauthorized sentence.
(Id. at p. 729.) Leyva has not shown error.
              The order is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P. J.


We concur:



              YEGAN, J.



              PERREN, J.




                                              4
                               Gustavo E. Lavayen, Judge

                       Superior Court County of Santa Barbara

                           ______________________________


             Richard B. Lennon, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.




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