People v. Jacobs CA2/4 ( 2016 )

Filed 1/28/16 P. v. Jacobs CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B264628
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA394442)
v.
ROY LEWIS JACOBS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Kerry Bensinger, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Respondent.
BACKGROUND
A. Trial and Prior Appeal
Between December 1999 and April 2008, appellant Roy Lewis Jacobs
applied for and secured multiple California driver’s licenses and state identification
cards under false names. In 2013, appellant was convicted of seven felony counts
of perjury for lying under oath on the license applications in violation of Penal
Code section 118, subdivision (a), one felony count of identity theft in violation of
Penal Code section 530.5, subdivision (a), and one felony count of false
personation in violation of Penal Code section 529.1 Additionally, he was found to
have been convicted of first degree burglary in 1993 and 1994 (§ 459), “strikes”
under the “Three Strikes” law. (See §§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d).)
Appellant was sentenced to 13 years imprisonment, consisting of: six years
(the mid-term, doubled) for one count of perjury; one year each (one-third the mid-
term) for five of the remaining counts of perjury; and two years (the low term) for
the last count of perjury. In addition, the court imposed and stayed two 16-month
sentences (the low terms) for identity theft and false personation. Appellant’s
convictions were affirmed by this court in an unpublished opinion, People v.
Jacobs (Mar. 9, 2015, B249102).
B. Proceedings Below
On February 12, 2015, appellant filed a petition for resentencing, asking that
his felony sentences be recalled, and that he be resentenced to misdemeanors under
section 1170.182 The trial court denied the motion, stating in its order that
1
Undesignated statutory references are to the Penal Code.
2
Section 1170.18 was enacted as part of the initiative known as Proposition 47,
“‘“the Safe Neighborhoods and Schools Act,”’” and governs petitions for resentencing
under that act. (See T.W. v. Superior Court (2015) 236 Cal. App. 4th 646, 650, fn. 2.)
2
appellant’s felony convictions were “not for . . . offense[s] that qualif[y] for
designation as a misdemeanor conviction . . . .” Appellant filed a second
application for resentencing, asking in a handwritten attachment that the court
“hear this appeal” of the denial of his petition for resentencing. The superior court
treated this filing as a notice of appeal. (See People v. Lloyd (1998) 17 Cal. 4th
658, 665.)
DISCUSSION
After review of the record, appellant’s court-appointed counsel filed an
opening brief asking this court to review the record independently pursuant to
People v. Wende (1979) 25 Cal. 3d 436. On September 11, 2015, we sent a letter to
appellant’s last known address, advising him that he had 30 days within which to
submit by brief or letter any contentions or argument he wished this court to
consider. No response was received to our letter. However, in the handwritten
attachment to the document deemed his notice of appeal, appellant contended his
sentence “clearly meets the requirements” for resentencing under section 1170.18.
This court has examined the entire record, and is satisfied no arguable issues
exist. Section 1170.18 “makes certain drug- and theft-related offenses
misdemeanors” (People v. Rivera (2015) 233 Cal. App. 4th 1085, 1091), and
“provides a mechanism by which a person currently serving a felony sentence for
an offense that is now a misdemeanor, may petition for a recall of that sentence
and request resentencing in accordance with the offense statutes as added or
amended by Proposition 47. [Citation.]” (T.W. v. Superior Court, supra, at p. 650,
fn. 2.) Proposition 47 “added sections 459.5 [shoplifting], 490.2 [petty theft] and
1170.18 to the Penal Code; amended sections 473 [forgery related to checks,
bonds, bank bills, notes, etc.], 476a [nsf checks, drafts or bank orders], 496 [receipt
of stolen property] and 666 [petty theft with a prior] of the Penal Code; and
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amended Health and Safety Code sections 11350 [possession of designated
controlled substances], 11357 [possession on school grounds] and 11377
[unauthorized possession of controlled substance].” (People v. Shabazz (2015) 237
Cal. App. 4th 303, 308; accord, People v. Rivera, supra, 233 Cal.App.4th at p. 1091;
see § 1170.18, subd. (a).) Resentencing is available only where a defendant has
been convicted of one of the specified offenses. Appellant is ineligible for
resentencing because the crimes of which he was convicted -- perjury (§ 118, subd.
(a)), identity theft (§ 530.5), and false personation (§ 529) -- are not within the
scope of Proposition 47.
Appellant has, by virtue of counsel’s compliance with the Wende procedure
and our review of the record, received adequate and effective appellate review of
the order denying his petition in this case. (Smith v. Robbins (2000) 528 U.S. 259,
278.)
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DISPOSITION
The order denying the petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
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