People v. Fuller CA2/4 ( 2016 )

Filed 8/15/16 P. v. Fuller 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B269512
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. NA008190-01)
v.
TYRONE FULLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Laura L. Laesecke, Judge. Affirmed.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Respondent.
In 1991, appellant Tyrone Fuller was charged and convicted of first degree
residential burglary, a violation of Penal Code section 459.1 It was further alleged
and proved that appellant had been convicted of the same crime in October 1986
and August 1987. Appellant was sentenced to a term of 22 years.
In August 2015, appellant moved to reduce his three section 459 convictions
to misdemeanors under “Proposition 47.” By order dated December 14, 2015, the
court denied the motion, finding that each of appellant’s convictions was for an
offense that did not qualify under section 1170.18, subdivision (a) or (f). This
appeal followed.
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 April 8, 2016, 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. We received no response.
This court has examined the entire record, and is satisfied no arguable issues
exist. Proposition 47 “makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by certain ineligible
defendants.” (People v. Rivera (2015) 233 Cal. App. 4th 1085, 1091.) It created a
new provision, section 1170.18, which, among other things, permits “persons who
have completed felony sentences for offenses that would now be misdemeanors
under Proposition 47” to “file an application with the trial court to have their
felony convictions ‘designated as misdemeanors.’” (People v. Rivera, supra, 233
1
Undesignated statutory references are to the Penal Code.
2
Cal.App.4th at p. 1093, quoting § 1170.18, subd. (f).) Redesignation is available
only where a defendant has been convicted of one of the specified offenses.
Appellant is ineligible for redesignation because he was convicted of first degree
residential burglary (§ 459), which is not one of the offenses within the scope of
Proposition 47. (See People v. Shabazz (2015) 237 Cal. App. 4th 303, 308
[“[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 [non sufficient funds checks, drafts or bank
orders], 496 [receipt of stolen property] and 666 [petty theft with a prior] of the
Penal Code; and 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. Acosta (2015)
242 Cal. App. 4th 521, 526 [defendant’s crime -- car burglary -- not within purview
of Proposition 47 because not mentioned in list of offenses reduced to
misdemeanors]; In re J.L. (2015) 242 Cal. App. 4th 1108, 1114-1115 [burglary of a
school not within purview 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.)
3
DISPOSITION
The order denying the motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
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