Filed 5/26/16 P. v. Sigler CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B266743

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA099610)
         v.

BRIAN VINCENT SIGLER,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Wade
Olson, Commissioner. Reversed and Remanded.
                                                         ______

         John L. Staley, 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, Assistant Attorney General, Mary Sanchez and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       Appellant, Brian Vincent Sigler appeals from the trial court’s denial of his
application under Penal Code section 1170.18, subdivision (f), 1 to have his felony
conviction of second degree commercial burglary reclassified as a misdemeanor under
Proposition 47, the Safe Neighborhood and Schools Act. The parties agree, as do we,
that the trial court erred in refusing to rule on his application based on the mistaken
belief that another judge had already denied appellant’s request for reclassification of
his conviction. Accordingly, we reverse and remand to the court to consider Sigler’s
section 1170.18, subdivision (f) application.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In June 2012, appellant purchased two computer hard drives from a Target store
at a total price of approximately $200. Appellant disassembled the hard drives,
removed the internal parts, replaced them with used components and then returned the
merchandise to the store for a full refund.2 Appellant was arrested, and in October 2012,
he was charged with second-degree commercial burglary (§ 459).3 In January 2013,
appellant pleaded no contest to the charge and admitted the special allegations. The court
sentenced appellant to 32 months in state prison and awarded him 18 days of presentence
custody credit.
       On December 16, 2014, while serving his sentence, appellant filed a petition
in the superior court to recall his sentence and resentence him under section 1170.18,
subdivision (a).4 The court denied appellant’s petition, finding that “[t]his is a 459. And

       1   All statutory references are to the Penal Code unless otherwise indicated.
       2 The circumstances of appellant’s crime are described in the probation and
sentencing report.
       3 The information further alleged that appellant had a prior strike conviction and
had served prior prison terms.
       4  Section 1170.18, subdivision (a) provides, in pertinent part: “A person currently
serving a sentence for a conviction . . . who would have been guilty of a misdemeanor
under [Proposition 47] . . . had this act been in effect at the time of the offense may
petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing.” (§ 1170.18, subd. (a).)

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according to our folks 459’s are prospective.”5 On July 29, 2015, after he completed
his sentence, appellant filed an application to designate his felony conviction as a
misdemeanor under section 1170.18, subdivision (f).6 The trial court refused to decide
the merits of the application, observing that another judge had already ruled on it. The
court took the matter off calendar, explaining that he could not set aside the previous
ruling.
          Appellant timely appeals.7
                                        DISCUSSION
          Appellant contends, the Attorney General concurs, and we agree that the trial court
erred when it refused to rule on the merits of appellant’s section 1170.18, subdivision (f)
application based on the conclusion that another judge had already decided the matter.
          Proposition 47 makes certain drug and theft-related felony offenses misdemeanors.
Section 1170.18, a sentencing statute that Proposition 47 added to the Penal Code,
provides two distinct remedies to a person seeking reclassification of a felony conviction
as a misdemeanor depending on whether the person seeking relief is serving or has
completed the sentence for the conviction. When the person is currently serving the
sentence, section 1170.18, subdivision (a) governs. If the trial court determines
subdivision (a) criteria are satisfied, the felony sentence is recalled, and the person is
resentenced to a misdemeanor unless the trial court determines that resentencing the

          5
         Appellant did not file an appeal of the order denying his section 1170.18,
subdivision (a) petition.
          6
         Section 1170.18, subdivision (f) provides, in pertinent part: “A person who has
completed his or her sentence for a conviction . . . who would have been guilty of a
misdemeanor under [Proposition 47] . . . had this act been in effect at the time of the
offense, may file an application before the trial court . . . to have the felony conviction or
convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)
          7
          Although the trial court ordered that the application be taken off calendar rather
than ruling on its merits, the legal effect of the court’s decision constituted a denial of
the application, and thus, we treat the ruling as an appealable order. (See American
Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 877 fn. 1
[where order taking motion off calendar results in the final determination of party’s
rights, appellate court may treat ruling as appealable].)

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person would pose an unreasonable risk of danger to public safety. (See § 1170.18,
subd. (b).)8
       In contrast, where the person has completed the sentence, section 1170.18
subdivision (f) applies. If the trial court determines subdivision (f) is satisfied, “the court
shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).)
The person obtaining relief under section 1170.18, subdivision (f) is not resentenced
and is not subject to the one-year parole term under subdivision (d).
       Here because appellant had completed his sentence, section 1170.18,
subdivision (f) authorized his application to redesignate his commercial burglary
conviction as a misdemeanor. Nonetheless, the trial court mistakenly assumed that
appellant was seeking reconsideration of the order denying his subdivision (a) petition.
Appellant did not, however, seek to revisit the trial court’s prior conclusion on the
“prospective” application of section 1170.18, subdivision (a) relief. His application
under subdivision (f), was distinct from his prior petition for recall and resentencing
under subdivision (a); the application sought different relief under a separate subdivision
of the statute. In addition, as the Attorney General properly acknowledges, nothing in the
Proposition 47 sentencing scheme or about the circumstances here, prohibited appellant
from requesting relief under subdivision (f) even though he had previously sought relief
under subdivision (a). Consequently, the trial court erred when it refused to rule on the
merits of appellant’s subdivision (f) application.




       8 A person resentenced under 1170.18, subdivision (a) may also be subject to a
one-year parole term as described in 1170.18, subdivision (d). (Pen.Code, § 1170.18,
subd. (d).)

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                                     DISPOSITION
       The order is reversed, and the matter is remanded to the trial court to consider the
merits of appellant’s section 1170.18, subdivision (f) application.
       NOT TO BE PUBLISHED.




                                                        ROTHSCHILD, P. J.
We concur:



                     JOHNSON, J.



                     LUI, J.




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