Filed 2/18/16 P. v. Gorostiza 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069578
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13901801)
                   v.

ELIAS ROMAN GOROSTIZA,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Allan E. Junker, 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, Catherine Chatman and
Kevin L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Franson, J. and Peña, J.
       On January 30, 2014, defendant Elias Roman Gorostiza was convicted by
no contest plea of several counts, including two counts of receiving stolen personal
property (Pen. Code, § 496, subd. (a);1 counts 4 & 5). On April 23, 2014, the trial court
sentenced him to the negotiated five-year sentence, and on June 17, 2014, he filed a
timely notice of appeal.
       On appeal, defendant’s sole contention is that we should remand his case to the
trial court with instructions to recall the sentence and to hold a resentencing hearing
pursuant to section 1170.18, so his felony convictions for receiving stolen property could
be reduced to misdemeanors. Defendant argues that section 1170.18 applies to him
retroactively.
       The People respond that defendant may not seek his remedy here, but must wait
for his appeal to become final, and then 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
(Rivera).) “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).” (Rivera, supra, at p. 1091.) Among the enumerated
offenses set forth in Proposition 47 is receiving stolen property. (See § 496, subd. (a).)
       “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

1      All statutory references are to the Penal Code unless otherwise noted.

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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).)” (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.)2
       We conclude defendant must petition the trial court, utilizing the procedures
specified in section 1170.18. Furthermore, any arguments on appeal that Proposition 47



2      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.” (People v. 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; see 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].)


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should be applied retroactively are premature.3 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.




3       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.

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