People v. Barr CA4/2 ( 2015 )

Filed 12/8/15 P. v. Barr 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E064468
v. (Super.Ct.No. SICRF97222330)
RONALD EVERT BARR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. Brian Lamb, Judge. Affirmed.
Ronald Evert Barr, in pro. per.; and Richard Schwartzberg, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
STATEMENT OF THE CASE
On November 20, 2014, defendant and appellant Ronald Evert Barr filed a petition
seeking to reduce his conviction for grand theft from a felony to a misdemeanor under
Penal Code section 1170.18, subdivision (f) (Proposition 47). On March 11, 2015, the
trial court denied defendant’s motion. The court stated: “The defendant’s felony
1
conviction for burglary in the first degree, Penal Code section 459, pursuant to Penal
Code section 460(a), commonly referred to as burglary of a residence or other inhabited
structure, is not a felony conviction that qualifies for reduction to a misdemeanor or other
relief under Proposition 47. Because the defendant’s petition fails to state a prima facie
claim for relief, the petition is hereby denied.”
On May 8, 2015, defendant sought clarification and/or reconsideration alleging
that his conviction was for grand theft under Penal Code section 487, not residential
burglary. Therefore, he was eligible for resentencing. On May 20, 2015, defendant filed
an in propria persona petition seeking reduction of his conviction for grand theft in 1997
from a felony to a misdemeanor under Penal Code section 1170.18. On August 19, 2015,
the trial court issued an order inviting the People to file a response to the petition to
determine whether defendant was eligible for relief under Proposition 47. On August 31,
2015, the People filed a written response stating that defendant had been convicted on
February 8, 2013, of violating Penal Code sections 288a, subdivision (b)(1), and 288,
subdivision (a)(1). Defendant, therefore, was required to register under Penal Code
section 290, and thus, was ineligible for reduction of his conviction to a misdemeanor
under Penal Code section 1170.18, subdivision (i). On September 29, 2015, the trial
court denied defendant’s petition. On September 11, defendant filed a notice of appeal.1
1 On the court’s own motion on October 6, 2015, we deemed defendant’s notice
of appeal filed on September 11, 2015, as filed after the trial court’s order of denial on
September 29, 2015.
2
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. 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
to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. On November 12, 2015, defendant filed a four-page handwritten brief. In
his brief, defendant contends that his conviction for grand theft should be reduced to a
misdemeanor under Proposition 47. Defendant appears to be arguing that Penal Code
section 1170.18, subdivision (i), does not apply because his convictions for Penal Code
sections 288a and 288, occurred in 2013, while his conviction for grand theft occurred in
1997.
In this case, although defendant’s offense for the disqualifying felony occurred in
2013, and the felony conviction for which defendant seeks reduction to a misdemeanor
occurred in 1997, the statutory terms “prior conviction” means any conviction prior in
time to the filing of the petition for resentencing. The plain language of Penal Code
section 1170.18, subdivision (i), states that “[t]he provisions of this section shall not
apply to persons who have one or more prior convictions for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [Penal Code
s]ection 667 or for an offense requiring registration pursuant to subdivision (c) of [Penal
Code s]ection 290.” Penal Code section 1170.18, subdivision (i), does not state that the
3
prior conviction must have been committed prior to the commission of the conviction at
issue under Proposition 47. Moreover, the Voter Information Guide stated that “certain
offenders who have already completed a sentence for a felony that the measure changes
could apply to the court to have their felony conviction changed to a misdemeanor.
However, no offender who has committed a specified severe crime could be resentenced
or have their conviction changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
analysis of Prop. 47 by Legis. Analyst, p. 36.) The trial court, therefore, properly denied
defendant’s petition to reduce his conviction for grand theft from a felony to a
misdemeanor under Penal Code section 1170.18, subdivision (i).
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.
4