Filed 11/19/15 P. v. Lozano CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042179
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC619872)

             v.

JOSE ANTHONY LOZANO,

         Defendant and Appellant.



         In 2007, appellant Jose Anthony Lozano was convicted of driving under the
influence resulting in injury (Veh. Code, § 23153, subd. (a)), driving under the influence
with a felony prior within 10 years (Veh. Code, §§ 23152/23550.5, subd. (a)), and hit and
run with injury or death. (Veh. Code, § 20001, subds. (a)/(b)(1).) Several sentencing
enhancements were also found to be true. (Veh. Code, § 23558, Pen. Code, §§ 12022.7,
subd. (a), 667, subds. (a), (b)-(i), 1170.12.) He was sentenced to a total term of 16 years
4 months.
         On January 27, 2015, appellant filed a petition for resentencing and for reduction
to misdemeanor pursuant to Proposition 47. (Pen. Code, § 1170.18, subds (a) & (f).) On
February 4, 2015, the superior court denied the petition, finding that appellant ineligible
for resentencing “because only certain theft and simple drug possession charges are
affected by the resentencing provision of Penal Code §1170.18(a)-(b).” This timely
appeal ensued.
       On appeal, we appointed counsel to represent appellant in this court. Appointed
counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496
(Serrano), which states the case and the facts but raises no specific issues.
       Pursuant to Serrano, on August 17, 2015 we notified appellant of his right to
submit written argument in his own behalf within 30 days. On August 17, 2015, we
received an “Informal Brief” from appellant. In his brief, the appellant argues that,
although not enumerated, his convictions for Vehicle Code violations fall within the
purpose, intent and spirit of Proposition 47. He further argues that he is eligible because
the sections under which he was convicted are not listed under the Penal Code section
667 (e)(2)(C)(iv) exclusion and are not clear and unambiguous with respect to “being
violent, and/or serious.” Penal Code section 1170.18 lists certain theft and simple drug
possession charges under the Penal and Health and Safety Code as eligible for
resentencing under the provision of the section. Appellant’s conviction for drunk driving
and hit and run with injury are neither enumerated in this section, nor can be equated with
one of the enumerated offenses. Appellant conflates eligibility with exclusion. Simply
because appellant’s violations under the vehicle code are not listed as violent or serious
felonies under Penal Code section 667, subdivision (e)(2)(C)(iv), does not bring them
within the purpose, intent and spirit of Proposition 47. Under Penal Code
section 1170.18, a prior conviction for a serious or violent offense serves to exclude an
otherwise eligible defendant from resentencing under the section.
       Finally appellant argues that “excludable offenses that disqualify one from
Proposition 47 relief vary from county to county.” To the extent that appellant contends
that a court or county can exercise discretion in determining which offenses are subject to
resentencing pursuant to Penal Code section 1170.18, subdivision (a), this argument is
without merit. This section explicitly enumerates the Penal and Health and Safety Code
sections to which it applies. Neither a district attorney of any county, nor a court has any
discretion to alter the list of sections eligible for resentencing under Proposition 47. The
                                              2
trial court correctly determined that none of the sections enumerated in Penal Code
section 1170.18 authorize the misdemeanor treatment of the Vehicle Code violations in
this case.
       As nothing in appellant’s supplemental brief raises an arguable issue on appeal,
we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
                                      DISPOSITION
       The appeal is dismissed.




                                            3
                                    _____________________________________
                                               RUSHING, P.J.




WE CONCUR:




_________________________________
      PREMO, J.




_________________________________
      ELIA, J.




People v. Lozano
H042179




                                      4
