Filed 1/5/16 P. v. Romero CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E064251

v.                                                                       (Super.Ct.No. RIF1401463)

JESSE VINCENT ROMERO,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Jesse Vincent Romero appeals from an order denying his

petition to reduce his second degree burglary (Pen. Code, § 459)1 conviction to a

misdemeanor pursuant to section 1170.18. We find no error and will affirm the order.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On February 26, 2014, defendant entered a bank with a stolen check in the amount

of $1,800 he had altered to be made payable to himself. The victim confirmed she had

written the check to someone else. When the bank employees became suspicious,

defendant fled the bank leaving behind the check, as well as a photocopy of his driver’s

license.

       On March 13, 2014, a felony complaint was filed charging defendant with second

degree burglary (§ 459) and fraudulently attempting to cash a check in the amount of

$1,800 (§ 476a). The complaint further alleged that defendant was out on bail at the time

of the offenses pursuant to section 12022.1. The complaint also alleged that defendant

had suffered five prior prison terms (§ 667.5, subd. (b)) and one prior strike conviction

(§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

       On June 9, 2014, pursuant to a negotiated plea agreement, defendant pled guilty to

the second degree burglary charge and admitted that he had suffered the prior strike


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

       2   The factual background is taken from the police reports.



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conviction. In return, the remaining allegations were dismissed and defendant was

sentenced to 16 months in state prison, to run consecutively to terms imposed in his other

pending cases.

        On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (Proposition 47). It went into effect the next day. (Cal.

Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as

misdemeanors certain drug- and theft-related offenses that previously were felonies or

wobblers, unless they were committed by certain ineligible defendants. (§ 1170.18,

subd. (a).)

        On January 8, 2015, defendant filed a petition to reduce his felony second degree

burglary conviction to a misdemeanor and for resentencing pursuant to section 1170.18.

        On May 14, 2015, the People filed an opposition, arguing defendant was ineligible

for resentencing because he was convicted of second degree burglary and not shoplifting.

        On July 9, 2015, the trial court considered and denied defendant’s petition, finding

defendant did not satisfy the criteria under section 1170.18 because he had entered a bank

and attempted to cash a fraudulent check in the amount of $1,800, the value of which

exceeded $950. Defendant filed a timely notice of appeal from that order on August 24,

2015.




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                                            II

                                      DISCUSSION

      After defendant appealed, and upon his request, this court appointed counsel to

represent him on appeal. Counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a

statement of the case, a summary of the facts and potential arguable issues, and

requesting this court conduct an independent review of the record.

      We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

      Proposition 47, which is codified in section 1170.18, 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).

“Proposition 47 (1) added Chapter 33 to the Government Code (§ 7599 et seq.), (2) added

sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code

sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and

11377.” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).)

      Proposition 47 reduced the penalties for a number of offenses. Among those

crimes reduced are certain second degree burglaries where the defendant enters a

commercial establishment with the intent to steal. Such offense is now characterized as

shoplifting as defined in section 459.5. Shoplifting is now a misdemeanor, unless the



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prosecution proves the value of the items stolen exceeds $950. (People v. Contreras

(2015) 237 Cal.App.4th 868, 889-891.)

       “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).)” (Rivera, supra,

233 Cal.App.4th at p. 1092.)

       Here, as the trial court found, defendant entered a bank and attempted to cash a

fraudulent check in the amount of $1,800, the value of which exceeded $950. As such,

defendant was ineligible for resentencing.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.




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                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RAMIREZ
                                                         P. J.


We concur:


McKINSTER
                       J.


CODRINGTON
                       J.




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