People v. Coleman CA2/3 ( 2016 )

Filed 8/17/16 P. v. Coleman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B269140
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA393812
v.
NATHANIEL COLEMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Norman J. Shapiro, Judge. Affirmed.
Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Defendant Nathaniel Coleman pled no contest to three felony weapons charges and
admitted suffering prior felony convictions. Pursuant to the agreed disposition, the trial
court sentenced him to six years in state prison. However, the court suspended
execution of the sentence and placed defendant on three years formal probation. While
on probation in this case, defendant was charged in another case with selling cocaine.
As a result, the court summarily revoked his probation. After defendant was found in
violation of probation, the court imposed the six-year suspended prison term.
Defendant’s appellate counsel filed a brief in which no issues were raised. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) We affirm the judgment.
PROCEDURAL BACKGROUND
By information filed on April 6, 2012, defendant was charged with possession of
firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1); count 1), having a concealed
weapon (§ 25400, subd. (a)(2); count 2), and carrying a loaded handgun (§ 25850,
subd. (a); count 3). The information also alleged that defendant had suffered three prior
felony convictions under section 667.5, subdivision (b), and a serious or violent felony
or juvenile adjudication under section 1170.12, subdivisions (a) through (d) and section
667, subdivisions (b) through (i).
On June 18, 2013, defendant pled no contest to all three felony counts as alleged
in the information. He also admitted suffering three prior felony convictions and the
prior strike. Before accepting his plea, the court warned defendant: “I’m going to
suspend six years state prison over your head but you need to understand if you do
anything while on probation, even the smallest tiniest little thing, I will send you to
prison.” The court sentenced defendant to a total of six years in state prison, suspended
execution of the sentence, and placed him on formal probation for three years. The
suspended sentence reflected the upper term of three years for count 1, and three
one-year prison terms for the section 667.5, subdivision (b) prior convictions. The
1
All undesignated statutory references are to the Penal Code.
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sentences for counts 2 and 3 were stayed under section 654. The court dismissed the
prior strike.
On July 15, 2015, defendant was arrested and charged with selling cocaine base
in another case. As a result, the court revoked defendant’s probation pending
a probation violation hearing. Although he was acquitted of selling cocaine base, on
October 30, 2015 the court found defendant in violation of probation based on
a preponderance of the evidence. The court then imposed the six-year suspended prison
term.
Defendant filed a timely notice of appeal from the October 30, 2015 execution of
sentence after he was found in violation of probation. We appointed counsel to
represent him on appeal. On May 17, 2016, defendant’s appellate counsel filed a Wende
brief. On May 25, 2016, defendant filed a letter brief. He contends that his sentence
should be reduced under Proposition 47 because two of the three prior felony
convictions used to enhance his sentence now qualify as misdemeanors.
DISCUSSION
The trial court in this case imposed a six-year sentence on June 18, 2013, but
suspended execution of that sentence so that defendant did not have to serve it while on
probation. If defendant had completed probation successfully, the prison sentence
would never have been served. However, once his probation was revoked, the court had
no authority to impose a lesser sentence. (See People v. Howard (1997) 16 Cal.4th
1081, 1095.)
Even if the court had discretion to modify defendant’s sentence after his
probation was revoked, there is no basis to reduce that sentence because some of his
prior felony convictions now qualify as misdemeanors under Proposition 47. First, the
challenged sentence in this case was imposed in June 2013, and Proposition 47 did not
become effective until November 5, 2014. (See Cal. Const., art. 2, § 10, subd. (a)
[statutes enacted by initiative take effect the day after the election unless the measure
provides otherwise].) Proposition 47 does not retroactively invalidate the prior
conviction enhancements. (People v. Jones (2016) 1 Cal.App.5th 221 [prison prior that
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was valid when imposed is not retroactively reducible under Proposition 47]; see People
v. Feyrer (2010) 48 Cal.4th 426, 438–439 [reduction to a misdemeanor “for all
purposes” under § 17, subd. (b) does not apply retroactively].)
Second, Proposition 47 is not self-executing. (People v. Curry (July 28, 2016,
A145922) 1 Cal.App.5th __ [2016 WL 4039775, *4].) Instead, it creates a mechanism
for the court that originally imposed a felony sentence on an eligible defendant to
redesignate that conviction as a misdemeanor. (Ibid.; see People v. Conley (2016)
63 Cal.4th 646 [Prop. 36 reduction not automatic; defendant must follow statutory
procedure].) As relevant to this case, the Act provides that any defendant who has
“completed his or her sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under this act had this act been
in effect at the time of the offense, may file an application before the trial court that
entered the judgment of conviction in his or her case to have the felony conviction or
convictions designated as misdemeanors.” (§ 1170.18, subd. (f) [emphasis added].) If
the defendant chooses to file a petition, and if the petition satisfies these criteria, “the
court shall designate the felony offense or offenses as a misdemeanor.” (Id. subd. (g).)
At that point, the conviction “shall be considered a misdemeanor for all purposes,
except that such resentencing shall not permit that person to own, possess, or have in his
or her custody or control any firearm or prevent his or her conviction under [the chapter
prohibiting firearm access by certain narcotics offenders].” (Id. subd. (k).) In short,
relief is optional. A defendant must take affirmative steps to petition for reduction using
the established statutory procedure. (People v. Curry, supra, at pp. *4–6.) Here, there
is no evidence that defendant or his counsel sought to reduce any of his prior felony
convictions from 2001, 2005, and 2008 before he was sentenced in this case in 2013.
Finally, to the extent defendant is suggesting that his trial counsel was ineffective
for failing to file Proposition 47 petitions in his other felony cases, the record in this
case does not contain sufficient information for us to determine whether counsel’s
performance was deficient. For example, we do not know if trial counsel in this case
was also defendant’s attorney in the 2001, 2005, and 2008 cases. The record also does
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not reveal whether trial counsel coordinated with defendant’s prior attorney, or whether
counsel advised defendant to file a petition in propria persona. (See Couzens &
Bigelow, “Proposition 47: The Safe Neighborhoods and Schools Act” (May 2016)
pp. 72–73, at [as of
Aug. 10, 2016] [no right to appointed counsel to prepare the initial petition].)
DISPOSITION
After reviewing the entire record, we affirm the judgment. (Smith v. Robbins
(2000) 528 U.S. 259, 278-284; Wende, supra, 25 Cal.3d at p. 443.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ALDRICH, J.
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