People v. Ames CA5 ( 2016 )

Filed 8/30/16 P. v. Ames CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F071266
Plaintiff and Respondent,
(Super. Ct. No. 09CM7585)
v.
MICAH AMES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Peña, J. and Smith, J.
Appointed counsel for defendant Micah Ames asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436.) Counsel filed an opening brief that sets forth the facts of the case
and requests that we review the record. Defendant was advised of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than
30 days elapsed, and we received no communication from defendant. Finding no
arguable error that would result in a disposition more favorable to defendant, we affirm
the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On January 14, 2010, defendant pled guilty to one count of possessing a controlled
substance in prison (Pen. Code, § 4573.6),1 and he admitted a prior strike allegation
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to the low
term of two years, doubled to four years pursuant to the Three Strikes law (ibid).
On December 8, 2014, defendant filed a petition for resentencing pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18). The prosecutor
responded that defendant’s offense (§ 4573.6) is not one affected by Proposition 47.
On February 19, 2015, the trial court denied the petition for resentencing because
the conviction for section 4573.6 is not eligible for resentencing under Proposition 47.
On March 18, 2015, defendant filed a notice of appeal.
DISCUSSION
On November 4, 2014, California voters enacted Proposition 47, and it went into
effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
“Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the
1 All statutory references are to the Penal Code unless otherwise noted.
2
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).” (Id. at p. 1091.)
“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).)” (People v. Rivera, supra, 233 Cal.App.4th at
p. 1092.) Section 4573.6 is not among the offenses listed in section 1170.18. Therefore,
the trial court properly denied defendant’s petition for resentencing of this felony.
Furthermore, we see no other arguable error that would result in a disposition
more favorable to defendant.
DISPOSITION
The judgment is affirmed.
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