Filed 2/25/15 P. v. Fillion CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----

THE PEOPLE,

                   Plaintiff and Respondent,                                                 C076214

         v.                                                                     (Super. Ct. No. SF125307A)

CHRISTOPHER WILLIAM FILLION,

                   Defendant and Appellant.



         Appointed counsel for defendant Christopher William Fillion asked this court
to review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.
                                                             I
         Defendant entered a grocery store on September 3, 2013, filled his grocery cart
with items, and exited the store with the groceries without paying for them. Defendant
was charged with second degree commercial burglary (Pen. Code, § 459; count 1)1 and




1 Undesignated statutory references are to the Penal Code.


                                                             1
petty theft with prior theft crime convictions (§ 666; count 2). As to both counts, it was
alleged defendant had been convicted of a prior serious felony (§§ 667, subd. (d) &
1170.12, subd. (b)) and that he had served two prior prison terms (§ 667.5, subd. (b)).
       Defendant moved four separate times to substitute appointed counsel pursuant
to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on September 13, 2013, January 17,
2014, January 28, 2014, and February 11, 2014. In one instance defendant withdrew the
motion; in the other three instances the trial court denied the motion after a hearing.
Following the denial of defendant’s final Marsden motion, defendant pleaded no contest
to petty theft with prior theft crime convictions (count 2) and admitted the prior serious
felony enhancement allegation and one prior prison term enhancement allegation. On the
district attorney’s motion, the trial court struck the other prior prison term enhancement
and dismissed count 1 in the interest of justice in light of defendant’s plea.
       The trial court imposed the lower term of 32 months (16 months doubled due to
defendant’s prior serious felony conviction) on count 2, and imposed but stayed a one-
year enhancement for defendant’s prior prison term. The trial court also awarded
defendant 324 days of presentence credit and ordered defendant to pay the following
fines and fees: a restitution fine of $330, a parole revocation fine of $330, a conviction
assessment of $30, and a court security fee of $40. The trial court denied defendant’s
request for a certificate of probable cause.
                                               II
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.
       Meanwhile, in the November 4, 2014 general election, the voters passed
Proposition 47, the Safe Neighborhood and Schools Act (the Act). We asked the parties

                                               2
for supplemental briefing to address the effect of the Act on defendant’s conviction.
In his supplemental brief, defendant’s appointed counsel argued we should resentence
defendant because (a) petty theft with a prior has been reduced to a misdemeanor for
eligible offenders such as defendant, (b) defendant’s judgment is not yet final, and (c) the
Act applies retroactively. The Attorney General countered that defendant is not entitled
to automatic resentencing but must instead petition the trial court for relief under section
1170.18. The Attorney General argues that People v. Yearwood (2013) 213 Cal.App.4th
161, 170, 177, is instructive in this regard. We agree with the Attorney General.
       We decline to resentence defendant and conclude that he must pursue his statutory
remedy to petition the trial court for recall of sentence and resentencing. (§ 1170.18; see
also People v. Chaney (2014) 231 Cal.App.4th 1391, 1397, People v. Yearwood, supra,
213 Cal.App.4th at pp. 170, 177.)
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is affirmed.



                                                        MAURO                  , J.


We concur:


      NICHOLSON             , Acting P. J.


      DUARTE                , J.




                                              3
