Filed 6/29/15 P. v. Hampton 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062339

v.                                                                       (Super.Ct.No. FMB1400257)

WILLIE HAMPTON, JR.,                                                     ORDER MODIFYING OPINION
                                                                         AND DENYING PETITION FOR
         Defendant and Appellant.                                        REHEARING
                                                                         [NO CHANGE IN JUDGMENT]




         The petition for rehearing is denied. The opinion filed in this matter on June 4,

2015, is modified as follows:

         Delete the following portion of the second full paragraph of page 3, beginning

with “To the extent,” continuing through and ending with “priors were dismissed” on

page 4. Replace it with the following:

         Penal Code section 1170.18 requires a defendant claiming eligibility for

resentencing under Proposition 47 either to file a petition for recall of sentence in the trial

court, or to file an application for resentencing with the trial court, in the first instance.


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Proposition 47 does not allow an appellate court directly to reduce felonies to

misdemeanors in the absence of the appropriate petition or application in the trial court.

(People v. Shabazz (2015) 237 Cal.App.4th 303.)

       Except for this modification, the opinion remains unchanged. This modification

does not effect a change in the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                McKINSTER
                                                                                             J.
We concur:



RAMIREZ
                        P. J.



KING
                           J.




                                             2
Filed 6/4/15 P. v. Hampton CA4/2 (unmodified version)

                      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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062339

v.                                                                       (Super.Ct.No. FMB1400257)

WILLIE HAMPTON, JR.,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed.

         Cindy Brines, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Willie Hampton, Jr., filed a notice of appeal after he

entered a guilty plea to second degree commercial burglary. We affirm the judgment.




                                                             1
                        FACTS AND PROCEDURAL HISTORY

       The complaint charged defendant with one count of second degree commercial

burglary, and one count of receiving stolen property, occurring on April 22, 2014. The

charges apparently arose when defendant entered a Wal-Mart store and stole a television

set. The complaint also alleged that defendant had two prior strike convictions (burglary

and criminal threats), and had suffered one prison term prior (the criminal threats

conviction).

       Before the preliminary hearing, defendant agreed to plead guilty to second degree

burglary. He would be sentenced to the aggravated term of three years in state prison. In

exchange, the remaining count and the special allegations would be dismissed. Counsel

stipulated that the court could treat the complaint as an information. Defendant pleaded

guilty to second degree burglary, and all remaining allegations were dismissed.

Defendant requested immediate sentencing; the court imposed the agreed-upon sentence

of three years. The court also imposed various fines and assessments, and awarded

defendant certain conduct credits.

       Defendant filed a notice of appeal, asserting that he wanted to raise grounds

arising after the plea, and not affecting the validity of the plea. (Citing Cal. Rules of

Court, rule 8.304(b).) Defendant’s notice of appeal requested that he be resentenced

under Penal Code section 1170.18, enacted by the voters as Proposition 47 in November

2014, effective as of November 5, 2014. Proposition 47, the “Safe Neighborhoods and

Schools Act,” reclassified certain drug and theft offenses as misdemeanors, rather than



                                              2
felonies or “wobblers.” It provides a mechanism for persons sentenced as felons for the

reclassified offenses to petition to have their sentences reduced and the offenses

designated as misdemeanors. Defendant requested reduction of his second degree

burglary offense to a misdemeanor, under Proposition 47.

                                       ANALYSIS

       Pursuant to a request in defendant’s notice of appeal, counsel has been appointed

to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a brief statement of the case and summary of the facts. Counsel has

identified one potentially arguable issue: whether the sentence agreed to in the plea

bargain was proper. Counsel has asked the court to undertake a review of the entire

record.

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

but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th

106, we have conducted an independent review of the whole record, and we find no

arguable issues. To the extent defendant urges that he was eligible for resentencing under

Proposition 47, he is mistaken. Proposition 47 applies to defendants who have been

convicted of violations of Health and Safety Code sections 11350, 11357, or 11337 or

Penal Code sections 459.5, 473, 476a, 490.2, 496 or 666. (Pen. Code, § 1170.18,

subd. (a).) Defendant here has no such convictions. Otherwise, he received the benefit




                                             3
of his plea-bargained sentence: three years in state prison. Under the agreement, he was

spared treatment as a second or third striker when his strike priors were dismissed.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               McKINSTER
                                                                                       J.
We concur:



RAMIREZ
                       P. J.



KING
                          J.




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