People v. Lazcano CA4/3 ( 2015 )

Filed 12/2/15 P. v. Lazcano CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G051295
v. (Super. Ct. No. 13CF1721)
PEDRO LUIS LAZCANO, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Christopher Evans, Commissioner. Dismissed.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Pedro Luis Lazcano appeals from an order granting his motion
to recall his felony conviction and reduce it to a misdemeanor. While the matter was on
appeal, the trial court entered a further order correcting defendant’s sentence, which
granted defendant all the relief he sought by means of this appeal. Therefore, we will
dismiss the appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant pled guilty to one felony count of possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)) and one misdemeanor count of
possession of burglary tools (Pen. Code, § 466). Defendant also admitted one strike prior
(Pen. Code, §§ 667, subd. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and three prison
priors (Pen. Code, § 667.5, subd. (b)).
At sentencing, the trial court struck the strike prior (Pen. Code, § 1385,
subd. (c)) and the prison priors for sentencing purposes only. The court suspended
imposition of sentence on the misdemeanor count of possession of burglary tools, and
sentenced defendant to two years in prison on the felony controlled substance count.
Defendant was awarded a total of 504 credit days. The court imposed a restitution fine of
$280 pursuant to Penal Code section 1202.4, and a postrelease community supervision
(PRCS) revocation restitution fine pursuant to Penal Code section 1202.45.
Defendant was released on PRCS. Less than two months later, defendant
was arrested. Defendant was found to be in violation of his PRCS and was committed for
120 days in jail, with total credits of 98 days. Two months after his release, a warrant
was issued for defendant’s arrest for failure to report.
Defendant filed a petition to recall his felony conviction and reduce it to a
misdemeanor, pursuant to Penal Code section 1170.18, subdivision (f), or to recall the
2
conviction, reduce it to a misdemeanor, and set the matter for resentencing, pursuant to
section 1170.18, subdivision (a). In response, the People did not oppose defendant’s
petition, but argued that because he was still serving his sentence, subdivision (a), not
subdivision (f), of section 1170.18 applied; the People did not agree to the sentence
requested by defendant. The trial court granted the petition and ordered that the felony
count be amended by interlineation as a misdemeanor, pursuant to section 1170.18,
subdivision (a). A sentence of 365 days in county jail and one year of parole was ordered
pursuant to section 1170.18, subdivision (d). Defendant was given a total of 365 days of
credits. Defendant filed a timely notice of appeal.
While this case was on appeal, the trial court entered an order correcting
defendant’s sentence by changing defendant’s sentence to 364 days, awarding defendant
28 months of credits, immediately discharging defendant from parole, deeming all fines
to be paid in full, and vacating defendant’s registration requirement under Health and
Safety Code section 11590.
DISCUSSION
Defendant concedes that the issues raised by his appeal have been fully
addressed by the trial court’s order correcting defendant’s sentence. Defendant has
received exactly the result he sought on appeal. In response to this court’s order
requesting supplemental briefing as to whether the appeal should be dismissed based on
the trial court’s order correcting defendant’s sentence, neither party has objected to
dismissal and no other issues were presented by the appeal. We therefore exercise our
discretion to deem the appeal abandoned and, accordingly, we dismiss. (See In re
Shigemura (2012) 210 Cal. App. 4th 440, 451, fn. 4.)
3
DISPOSITION
The appeal is dismissed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
4