Filed 4/28/16 P. v. Morin CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F069511
         Plaintiff and Respondent,
                                                                           (Super. Ct. Nos. F12904327,
                   v.                                                   F12905997, F13900846, F13904545,
                                                                                   F13908676)
GREG CIPRANO MORIN,

         Defendant and Appellant.                                                        OPINION


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. F. Brian
Alvarez, Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B.
McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
       On February 20, 2014, defendant Greg Ciprano Morin was convicted by no
contest plea of various offenses in several cases, including two felony counts of
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), one count in
case No. F12905997 and the other in case No. F13908676.1 His notice of appeal was
received by the superior court on June 6, 2014.
       On appeal, defendant’s sole contention is that we should remand this matter to the
trial court with instructions to recall the sentence and to hold a resentencing hearing
pursuant to Penal Code section 1170.18,2 so the two felony convictions for possession of
methamphetamine could be reduced to misdemeanors. Defendant argues that
section 1170.18 applies to him retroactively.
       The People respond that defendant may not seek this remedy here, but must
instead file a petition with the trial court. We agree and dismiss the appeal.
                                      DISCUSSION
       While defendant’s appeal was pending, on November 4, 2014, voters enacted
Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), and
it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
“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).” (Id. at p. 1091.) Among the enumerated offenses set forth
in Proposition 47 is possession of methamphetamine. (Health & Saf. Code, § 11377,
subd. (a).)



1     We note that the case number on the Felony Abstract of Judgment is incorrect
(F13908696 rather than F13908676).
2      All further statutory references are to the Penal Code unless otherwise noted.


                                              2
       “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. (§ 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).) Subdivision (c) of section 1170.18 defines the term ‘unreasonable risk of
danger to public safety,’ and subdivision (b) of the statute lists factors the court must
consider in determining ‘whether a new sentence would result in an unreasonable risk of
danger to public safety.’ (§ 1170.18, subds. (b), (c).)” (People v. Rivera, supra,
233 Cal.App.4th at p. 1092.)
       Here, defendant did not petition the trial court for recall of his sentence. The plain
language of section 1170.18, however, requires a defendant to first file “a petition to
recall (if currently serving the sentence) or an application to redesignate (if the sentence
is completed) in the superior court of conviction.” (People v. Diaz (2015)
238 Cal.App.4th 1323, 1331-1332 (Diaz).)3
       We conclude defendant must petition the trial court, utilizing the procedures
specified in section 1170.18. Furthermore, any arguments on appeal that Proposition 47

3      Diaz also concluded “the voters did not intend to permit an appellate court to
declare in the first instance that a felony conviction for a crime reduced by Proposition 47
is a misdemeanor.” (Diaz, supra, 238 Cal.App.4th at p. 1332.) Other recent decisions
have rejected arguments on appeal that appellate courts are required to reduce offenses
predating Proposition 47 when the judgments are not yet final, and the decisions instead
require defendants to utilize the procedures specified in section 1170.18. (See People v.
Contreras (2015) 237 Cal.App.4th 868, 873, 889-892; People v. Awad (2015) 238
Cal.App.4th 215, 221-222 [finding the task of reducing a conviction from a felony to a
misdemeanor under Proposition 47 “manifestly” vested with the trial court].)


                                              3
should be applied retroactively are premature.4 As a result, defendant raises no
cognizable issues on appeal.
                                      DISPOSITION
       The appeal is dismissed without prejudice to defendant’s filing a petition in the
trial court to recall his sentence.




4       We note that the issue of whether Proposition 47 applies retroactively to a
defendant who was sentenced before its effective date but whose judgment was not final
until after that date is pending before our Supreme Court in People v. Dehoyos, review
granted September 30, 2015, S228230.


                                             4
